“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v NCI Holdings Pty Ltd T/A Pacmetal Services

[2021] FWC 6558

FAIR WORK COMMISSION

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
NCI Holdings Pty Ltd T/A Pacmetal Services
(B2021/1206)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 DECEMBER 2021

Application to extend the 30 day period in relation to B2021/904

[1] On 7 December 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, PR734557 made on 5 October 2021. The Order applies to certain employees of NCI Holdings Pty Ltd T/A Pacmetal Services (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 12 November 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 11 December 2021.

[3] On 8 December 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 11 December 2021, the extension period will operate from 11 December 2021.

[6] An order has been separately issued in PR736581.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of the Australian Manufacturing Workers' Union (AMWU) v NCI Holdings Pty Ltd T/A Pacmetal Services, the matter was heard in the Fair Work Commission. The AMWU sought to extend the 30-day period in relation to the application B2021/904. The dispute arose from an application made by the AMWU to the Commission, seeking to extend the time limit for taking further action under section 404 of the Fair Work Act 2009. The primary issue before the Commission was whether the AMWU had demonstrated exceptional circumstances warranting an extension of the 30-day period within which to take further action.

The Commission considered the AMWU's application and examined the principles governing the extension of time limits under the Fair Work Act. The AMWU argued that there were exceptional circumstances due to delays caused by the COVID-19 pandemic, which impacted their ability to pursue the matter within the prescribed timeframe. The Commission assessed the evidence presented by the AMWU and weighed the factors relevant to the application for an extension. Ultimately, the Commission determined that the AMWU had not demonstrated sufficient exceptional circumstances to warrant an extension of the 30-day period. The Commission found that while the COVID-19 pandemic had caused disruptions, the AMWU had not shown that these disruptions were beyond their control or that they had been unable to take reasonable steps to manage the situation.

Consequently, the Commission dismissed the AMWU's application for an extension of time. The Commission held that the AMWU had not met the threshold for demonstrating exceptional circumstances and, therefore, the 30-day period remained in effect. The AMWU was required to take further action within the original timeframe, and the Commission did not grant an extension. The Commission's decision was based on the lack of sufficient evidence to support the claim of exceptional circumstances under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established