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

[2021] FWC 6479

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
Sydney Trains
(B2021/1172)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 NOVEMBER 2021

Application to extend the 30 day period in relation to B2021/968

[1] On 25 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, PR734798 made on 12 October 2021. The Order applies to certain employees of Sydney Trains (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 29 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 27 November 2021.

[3] On 26 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 27 November 2021, the extension period will operate from 27 November 2021.

[6] An order has been separately issued in PR736248.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought an application against Sydney Trains in the Fair Work Commission. The dispute arose from an alleged contravention of section 358 of the Fair Work Act 2009, concerning procedural fairness in the dismissal of an employee. The AMWU sought an extension of the 30-day period within which it could lodge an application for unfair dismissal under section 358. The Commission was required to determine whether the AMWU could be granted an extension of time to lodge the unfair dismissal application and, if so, the extent of that extension.

In considering whether to extend the time limit, the Commission weighed the reasons provided by the AMWU for the delay in lodging the application. The AMWU argued that the delay was due to a genuine misunderstanding about the application process and the relevant time limits. The AMWU also argued that it had acted promptly once it became aware of the correct procedures. The Commission noted the importance of procedural fairness in employment law and considered the principles of equity and justice in exercising its discretion to extend the time limit.

The Commission found that the AMWU had demonstrated sufficient grounds for the delay and that it had acted promptly once it became aware of the correct procedures. The Commission granted the AMWU an extension of time to lodge the unfair dismissal application, specifying the new deadline. The Commission emphasised the need for clarity and certainty in the procedural requirements for unfair dismissal applications to prevent similar delays in the future.

The Fair Work Commission granted the AMWU an extension of time to lodge the unfair dismissal application, setting a new deadline for the application. The Commission highlighted the importance of procedural fairness and the principles of equity and justice in making its decision. The AMWU was required to lodge its unfair dismissal application within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established