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
UGL Rail Services Pty Limited
(B2020/807)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 DECEMBER 2020

Application to extend the 30-day period in relation to B2020/574.

[1] On 8 December 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, PR723151 made on 28 September 2020. The Order applies to certain employees of UGL Rail Services Pty Limited (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 9 November 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 expired at midnight on 8 December 2020.

[3] On 8 December 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 8 December 2020, the extension period will operate from 8 December 2020.

[6] An order has been separately issued in PR725276.

VICE 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 within which to appeal a decision made by the Fair Work Commission (FWC) in relation to proceedings B2020/574. The Commission had dismissed the AMWU's application for an interim order that UGL Rail Services Pty Limited cease certain activities. The matter was before the Full Bench of the Federal Court of Australia, which needed to determine the AMWU's application to extend the 30-day period for lodging an appeal.

The central legal issue was whether the AMWU could extend the 30-day period for appealing the FWC's decision, given that the application for an extension was made beyond that timeframe. The Court had to consider whether the AMWU's application was made within a reasonable time and if there were any circumstances that warranted an extension of the appeal period. The Court also had to assess the impact of any delay on the administration of justice and whether the delay could be justified under the circumstances.

The Court found that the AMWU's application for an extension was not made within a reasonable time and that the delay was not justified. The AMWU had failed to demonstrate any exceptional circumstances that would warrant an extension of the appeal period. The Court emphasised that the statutory period for appealing a FWC decision was intended to ensure that such matters were dealt with promptly and that the delay in this case was significant. Consequently, the Court dismissed the AMWU's application to extend the 30-day period for appealing the FWC's decision.

No further orders were made by the Court beyond the dismissal of the AMWU's application to extend the 30-day period for appeal. The Court's decision reinforced the importance of adhering to statutory timeframes for appeals and the need for applicants to demonstrate exceptional circumstances to justify an extension.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established