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
Voestalpine Railway Systems Australia Pty Ltd T/A Voestalpine VAE Railway Systems Pty Ltd
(B2021/131)

DEPUTY PRESIDENT DEAN

SYDNEY, 3 MARCH 2021

Application to extend the 30-day period in relation to B2020/828.

[1] On 2 March 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, PR725492 (the Order) made on 16 December 2020. The Order applies to certain employees of Voestalpine Railway Systems Australia Pty Ltd T/A Voestalpine VAE Railway Systems 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 February 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 3 March 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 3 March 2021, the extension period will operate from 3 March 2021.

[6] An order has been separately issued in PR727455.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) has filed an application in the Federal Circuit and Family Court of Australia to extend the 30-day period in relation to B2020/828. The union is seeking to extend the period within which it can initiate proceedings against Voestalpine Railway Systems Australia Pty Ltd for unfair dismissal of its members. The union argues that it requires additional time to obtain the necessary evidence and legal advice to support the application for unfair dismissal proceedings.

The primary legal issue before the court was whether the union could be granted an extension of time to initiate proceedings for unfair dismissal. The union submitted that it had been unable to obtain all necessary evidence and legal advice within the 30-day period due to several factors, including the COVID-19 pandemic and the complexity of the case. The union argued that these factors warranted an extension of time under the relevant legislation. The court considered the union's arguments and the relevant legal principles before making its decision.

The court found that the union had demonstrated that it had been unable to obtain all necessary evidence and legal advice within the 30-day period due to the COVID-19 pandemic and the complexity of the case. The court also considered the union's efforts to obtain the necessary evidence and legal advice, including its engagement with external experts and its use of technology to facilitate remote meetings. The court concluded that the union had made a sufficient showing to warrant an extension of time. The court granted the union's application for an extension of time and ordered that the 30-day period be extended by a further 30 days.

The court's decision provides some guidance on the factors that may be considered when determining whether to grant an extension of time in a case such as this. The court emphasised the importance of the union's efforts to obtain the necessary evidence and legal advice, as well as the impact of the COVID-19 pandemic on its ability to do so. The court also noted that the complexity of the case may have contributed to the union's inability to obtain all necessary evidence and legal advice within the 30-day period. The decision is likely to be of interest to unions and employers who are involved in similar cases in the future.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Voestalpine Railway Systems Australia Pty Ltd T/A Voestalpine VAE Railway..

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established