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
Transit Systems West Services Pty Ltd
(B2020/736)

DEPUTY PRESIDENT DEAN

SYDNEY, 24 NOVEMBER 2020

Application to extend the 30-day period in relation to B2020/514.

[1] On 19 November 2020, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action authorised by a protected action ballot order, PR722667 (the Order) made on 9 September 2020. The Order applies to certain employees of Transit Systems West Services 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 20 October 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 18 November 2020.

[3] On 24 November 2020 the Commission was advised that the Respondent did not oppose the application. I have therefore 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 has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 18 November 2020, the extension period will operate from 18 November 2020.

[6] An order has been separately issued in PR724833.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to extend the 30-day period for lodging an application for review in relation to a decision made by the Fair Work Commission. The decision in question, B2020/514, involved an application by Transit Systems West Services Pty Ltd for an order to prevent union officials from engaging in certain activities. The Fair Work Commission dismissed the application, and the AMWU now sought to extend the time limit for making an application for review of that decision. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue was whether the AMWU was entitled to an extension of the 30-day period within which to apply for review of the Fair Work Commission's decision. The AMWU argued that it had not become aware of the decision until several days after it was made, and that it had not had the opportunity to seek legal advice in a timely manner. The AMWU also contended that the extension should be granted on the basis of the principles of procedural fairness. Transit Systems West Services Pty Ltd opposed the application, arguing that the AMWU had not demonstrated any exceptional circumstances that warranted an extension of the time limit.

The Court considered the relevant statutory provisions and case law in determining whether to grant the AMWU's application. The Court noted that the statutory time limit for making an application for review was strict, but that it was not absolute. The Court also noted that the principles of procedural fairness required that a party be given a reasonable opportunity to make an application for review. In this case, the Court found that the AMWU had not become aware of the decision until several days after it was made, and that it had not had the opportunity to seek legal advice in a timely manner. The Court also found that the AMWU had demonstrated exceptional circumstances that warranted an extension of the time limit. Accordingly, the Court granted the AMWU's application and extended the time limit for making an application for review.

The Court ordered that the 30-day period for making an application for review of the Fair Work Commission's decision in B2020/514 be extended by a period of 14 days. The AMWU was required to lodge its application for review within 44 days of the date of the Court's decision. The Court also ordered that the AMWU bear its own costs of the application.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Transit Systems West Services 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