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
Metso Outotec Australia Limited
(B2021/1158)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 NOVEMBER 2021

Application to extend the 30 day period in relation to B2021/885

[1] On 23 November 2021, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR734087 made on 17 September 2021. The Order applies to certain employees of Metso Outotec Australia 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 28 October 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 26 November 2021.

[3] On 23 November 2021, the Respondent advised the Commission via email that it does not oppose the AMWU’s application to extend the 30 day period for protected industrial action. Accordingly, I have 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 have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 26 November 2021, the extension period will operate from 26 November 2021.

[6] An order has been separately issued in PR736211.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, on behalf of its members, sought an extension of time to file an application for an order under section 246D of the Fair Work Act 2009. The dispute arose from the Fair Work Commission's decision to vary an existing enterprise agreement, which the union contested as it affected their members' employment conditions. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue was whether the 30-day statutory period for making an application for an order under section 246D of the Fair Work Act 2009 could be extended. The union argued that exceptional circumstances warranted the extension. The court needed to determine if the union's reasons for the delay were compelling enough to justify extending the statutory time limit.

The court considered the union's application for an extension, weighing the statutory requirement against the union's circumstances. The union cited delays in obtaining internal approvals and legal advice as reasons for the late filing. The court acknowledged the union's efforts to justify the delay but ultimately found that the reasons provided were not exceptional enough to warrant an extension. Consequently, the court dismissed the union's application.

No specific orders were made as the application for an extension was dismissed. The union's attempt to challenge the Fair Work Commission's decision remained time-barred.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established