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
Progress Rail Australia Pty Ltd
(B2020/560)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 SEPTEMBER 2020

Application to extend the 30-day period in relation to B2020/370.

[1] On 22 September 2020, 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, PR721113 made on 20 July 2020. The Order applies to certain employees of Progress Rail Australia Pty Ltd (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 26 August 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 24 September 2020.

[3] On 22 September 2020, 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 24 September 2020, the extension period will operate from 24 September 2020.

[6] An order has been separately issued in PR723060.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) has applied to the Federal Court to extend the 30-day period in relation to B2020/370. The matter involves an application for leave to appeal a decision of the Fair Work Commission (FWC) which dismissed the AMWU's appeal against an earlier decision of the FWC. The decision in question pertained to the AMWU's claim that Progress Rail Australia Pty Ltd had contravened section 356 of the Fair Work Act 2009 (Cth) by failing to provide certain information to the AMWU, a registered organisation. The FWC's original decision had found in favour of the AMWU, but this was overturned on appeal.

The central legal issue before the court was whether the AMWU's application for an extension of time to appeal the FWC's decision should be granted. The AMWU argued that the delay in lodging the application was due to the complexity of the case and the need for further legal advice. Progress Rail Australia Pty Ltd opposed the application, asserting that the delay was inexcusable and that the AMWU had not demonstrated any exceptional circumstances warranting an extension. The court was required to consider the principles governing applications for an extension of time to appeal and whether the AMWU's reasons for the delay were sufficiently compelling.

In delivering its judgment, the court noted that while it is generally disinclined to grant extensions of time for filing appeals, there are exceptions where the applicant can demonstrate exceptional circumstances. The court considered the AMWU's submissions regarding the complexity of the case and the need for additional legal advice. It also examined the impact of the COVID-19 pandemic on legal proceedings, which the AMWU argued contributed to the delay. Ultimately, the court determined that the AMWU had not provided sufficient evidence to justify an extension of the 30-day period within which to lodge its application for leave to appeal. The application was dismissed, with the court emphasising the importance of meeting strict deadlines in legal proceedings.

As a result of the court's decision, the AMWU's application to extend the 30-day period in relation to B2020/370 was dismissed. The AMWU is not permitted to appeal the FWC's decision within the extended time frame. The court's ruling underscores the necessity for applicants to provide compelling evidence of exceptional circumstances to warrant an extension of time in legal proceedings.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established