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
Tomago Aluminum Company Pty Ltd
(B2021/742)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/430.

[1] On 30 August 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, PR730935 made on 21 June 2021. The Order applies to certain employees of Tomago Aluminum Company 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 2 August 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 expired at midnight on 31 August 2021.

[3] On 30 August 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 expired at midnight on 31 August 2021, the extension period will operate from 31 August 2021.

[6] An order has been separately issued in PR733369.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) versus Tomago Aluminum Company Pty Ltd, the Fair Work Commission was tasked with considering an application to extend the 30-day period in relation to the AMWU’s claim B2021/430. The dispute centered around the AMWU's request for an extension of time to lodge its appeal to the Full Bench of the Fair Work Commission, which was initially dismissed by the Commission. The AMWU sought the extension on the grounds of unavailability of its legal representatives and the complexity of the matter.

The primary legal issue for the Commission to address was whether the AMWU had provided sufficient grounds to justify the extension of the statutory 30-day period within which to lodge its appeal. The Commission needed to evaluate the AMWU's claim that its legal representatives were unavailable due to other professional commitments and that this unavailability, combined with the complexity of the case, constituted special circumstances warranting an extension. The Commission also had to consider the balance between the statutory time limit for appealing decisions and the AMWU's right to effectively pursue its legal remedies.

The Commission acknowledged the AMWU's argument regarding the unavailability of its legal representatives but found that this did not constitute special circumstances warranting an extension. The Commission emphasised that the statutory timeframe for lodging an appeal is designed to ensure the timely resolution of disputes and that such extensions should only be granted in exceptional circumstances. The Commission also noted that the complexity of the case alone did not justify an extension, as it was a factor that the AMWU should have considered when initially preparing for the appeal. Consequently, the application for an extension was dismissed.

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