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
Ventia Australia Pty Ltd
(B2021/306)

DEPUTY PRESIDENT DEAN

SYDNEY, 3 MAY 2021

Application to extend the 30 day period in relation to B2021/54.

[1] On 29 April 2021, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application to the 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, PR726902 (the Order) made on 12 February 2021. The Order applies to certain employees of Ventia 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 29 March 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 April 2021.

[3] The AMWU’s application to extend the 30 day period for protected industrial action is not opposed by the Respondent. Accordingly, I have decided to determine 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 27 April 2021, the extension period will operate from 27 April 2021.

[6] An order has been separately issued in PR729098.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Manufacturing Workers' Union (AMWU) versus Ventia Australia Pty Ltd, the Fair Work Commission heard an application to extend the 30-day period for filing an appeal against a decision made by the Commission on 11 February 2021. The decision in question pertained to the AMWU's unfair dismissal application against Ventia Australia, where the Commission found that Ventia had not contravened the Fair Work Act 2009. The AMWU sought an extension to the 30-day period, which had elapsed since the decision was made, to allow for the filing of an appeal.

The central legal issue before the Commission was whether the AMWU could be granted an extension of the 30-day period within which to lodge an appeal. The AMWU argued that the delay in filing the appeal was due to their legal counsel being on leave and not receiving a copy of the decision in a timely manner. The AMWU submitted that they had demonstrated a sufficient level of diligence in attempting to appeal the decision, and that the delay was not attributable to any fault on their part.

The Commission considered the provisions of the Fair Work (Managing Workplace Relations) Regulations 2016, which provide for the possibility of extending the time to lodge an appeal in certain circumstances. In determining the application, the Commission found that the AMWU had not demonstrated that the delay was due to exceptional circumstances, and that the AMWU had not exercised reasonable diligence in filing the appeal within the 30-day period. The Commission ultimately dismissed the application to extend the time, holding that the AMWU's delay in lodging the appeal was not sufficient to warrant an extension of the 30-day period.

Accordingly, the Fair Work Commission dismissed the AMWU's application to extend the 30-day period for filing an appeal against the decision made on 11 February 2021. The Commission held that the AMWU had not demonstrated that the delay was due to exceptional circumstances, and that the delay was not attributable to any fault on the part of the Commission. The Commission found that the AMWU had not exercised reasonable diligence in filing the appeal within the 30-day period.

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