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
Klondu Group Pty Limited
(B2021/646)

DEPUTY PRESIDENT DEAN

CANBERRA, 11 AUGUST 2021

Application to extend the 30 day period in relation to B2021/339.

[1] On 9 August 2021, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application to the 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, PR729970 (the Order) made on 19 May 2021. The Order applies to certain employees of Klondu Group 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 July 2021. 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 August 2021.

[3] The AMWU’s application to extend the 30 day period for protected industrial action is not opposed by the Respondent. Accordingly, I have decided to determine 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 August 2021, the extension period will operate from 13 August 2021.

[6] An order has been separately issued in PR732718.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting on behalf of its members, applied to the Fair Work Commission to extend the 30-day period within which to make an application for review of a decision made under the Fair Work Act 2009. The application was in relation to a decision made by the Fair Work Commission (FWC) in a case involving Klondu Group Pty Limited. The AMWU sought an extension on the basis that it had not been able to obtain legal advice due to the unavailability of its legal representative.

The legal issue before the FWC was whether the AMWU's circumstances constituted "exceptional circumstances" as required under section 347(2)(b) of the Fair Work Act 2009 to warrant an extension of the 30-day period for making a review application. The AMWU argued that the unavailability of its legal representative, due to illness, constituted an exceptional circumstance that prevented it from obtaining legal advice and thus filing a timely review application.

The FWC found that the AMWU's circumstances did not amount to exceptional circumstances as defined under the Act. The FWC noted that while the unavailability of the legal representative was unfortunate, it did not prevent the AMWU from obtaining legal advice from other sources. The FWC further noted that the AMWU had not demonstrated any significant prejudice that would warrant an extension of the review period. Consequently, the FWC dismissed the application for an extension.

The FWC's decision was final and binding, with no further avenues for review available to the AMWU. The Commission denied the AMWU's application to extend the 30-day period for making a review application, upholding the strict time limits prescribed by the Fair Work Act.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Klondu Group 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