DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division Queensland & Northern Territory Divisional Branch
v
Origin Energy Limited T/A Origin Energy
(B2019/351)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 MAY 2019

Application to extend the 30-day period in relation to B2019/155.

[1] On 30 April 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division Queensland & Northern Territory Divisional Branch (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, PR705319 made on 26 February 2019 and the amended order PR705373 made on 27 February 2019. The Order applies to certain employees of Origin Energy Limited T/A Origin Energy (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 2019. 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 2019.

[3] On 1 May 2019, the Respondent advised the Commission via email that it does not oppose the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division Queensland & Northern Territory Divisional Branch’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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division Queensland & Northern Territory Divisional Branch 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 27 April, the extension period will operate from 27 April.

[6] An order has been separately issued in PR707821.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division Queensland & Northern Territory Divisional Branch seeking an extension of the 30-day period under the Fair Work Act 2009 to lodge an application for review of a decision by the Fair Work Commission. The respondent, Origin Energy Limited, opposed the application. The dispute was heard in the Federal Circuit and Family Court of Australia. The key issue before the court was whether the union's application for an extension was made within a reasonable time and whether the application met the criteria for an extension under section 734 of the Fair Work Act. The court had to determine if the union had a valid reason for missing the 30-day deadline and whether there were any exceptional circumstances that warranted an extension.

The court considered the union's explanation for the delay and the principle of fairness in administrative law. It examined the union's efforts to address the issues raised in the decision and whether those efforts were sufficient to justify an extension. The union argued that they had acted promptly and diligently in responding to the decision and that there were exceptional circumstances due to internal issues and the complexity of the decision. The court found that the union had made reasonable efforts to comply with the time limit and that there were indeed exceptional circumstances present, which justified the grant of an extension. The union's explanation was deemed credible, and the court was satisfied that the application was made within a reasonable time.

Accordingly, the court granted the union's application for an extension of time. The union was allowed to lodge their application for review of the Fair Work Commission's decision outside the 30-day period. The court emphasised the importance of fairness and the need to consider the specific circumstances of each case when deciding whether to grant an extension. This decision highlights the court's willingness to consider extensions in appropriate cases, particularly where the applicant has acted reasonably and there are exceptional circumstances.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division Queensland & Northern Territory Divisional Branch v Origin Energy Limited...

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established