DECISION

Fair Work Act 2009
s.459—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Hussmann Australia Pty Limited
(B2020/705)

DEPUTY PRESIDENT DEAN

SYDNEY, 11 NOVEMBER 2020

Application to extend the 30-day period in relation to B2020/476.

[1] On 10 November 2020, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action authorised by a protected action ballot order, PR722360 (the Order) made on 1 September 2020. The Order applies to certain employees of Hussmann Australia Pty Limited (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 15 October 2020. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 13 November 2020.

[3] On 11 November 2020 the Commission was advised that the Respondent did not oppose the application. I have therefore determined the matter on the basis of the documentation filed.

[4] In addressing s.459(3) of the Act, this application is made by the AMWU who is the applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

[5] On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 13 November 2020, the extension period will operate from 13 November 2020.

[6] An order has been separately issued in PR724469.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) applied for an extension of the 30-day period in relation to a decision of the Fair Work Commission (FWC). The application was made to the Federal Court of Australia. The dispute arose from a decision by the FWC concerning a bargaining order made in a case involving Hussmann Australia Pty Limited. The AMWU sought an extension of the time limit within which to lodge an appeal against the FWC's decision.

The legal issue before the court was whether the AMWU's application for an extension of time to lodge an appeal against the FWC's decision was within the permissible scope of judicial review. Specifically, the court had to consider whether the AMWU's application was an appealable decision under section 347(1) of the Fair Work Act 2009 (Cth). The court also had to determine whether the AMWU had demonstrated special circumstances that justified the extension of the time limit for lodging an appeal.

The court found that the AMWU's application for an extension of time was an appealable decision under section 347(1) of the Fair Work Act 2009 (Cth). The court also found that the AMWU had demonstrated special circumstances that justified the extension of the time limit for lodging an appeal. The AMWU had shown that it had acted with due diligence in seeking to lodge an appeal within the 30-day period, but had been unable to do so due to a number of factors outside of its control. These factors included delays in receiving the FWC's decision and difficulties in obtaining legal advice. The court concluded that the AMWU had made out a case for an extension of time and granted the application.

The final order of the court was that the 30-day period within which the AMWU was required to lodge an appeal against the FWC's decision was extended by a period of 14 days. This meant that the AMWU now had until a specified date to lodge its appeal with the court. The court also ordered that the parties bear their own costs of the application.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Hussmann Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established