DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Austube Mills Pty Ltd
(B2019/446)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 JUNE 2019

Application to extend the 30-day period in relation to B2019/312.

[1] On 5 June 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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, PR707238 (the Order) made on 18 April 2019. The Order applies to certain employees of Austube Mills 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 16 May 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 expired at midnight on 14 June 2019.

[3] On 6 June 2019, the Respondent advised the Commission via email that it does not oppose the CEPU’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 CEPU 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 expired at midnight on 14 June 2019, the extension period will operate from 14 June 2019.

[6] An order has been separately issued in PR709122.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The union applied for an extension of time to lodge an application for review of a decision made by the Fair Work Commission. The union argued that the 30-day period for lodging an application for review had expired, and they sought an extension on the basis of exceptional circumstances. The Fair Work Commission was the tribunal that made the original decision, and it was the subject of the proposed review. The company opposed the application on the basis that the union had not demonstrated exceptional circumstances warranting an extension of time.

The court was required to determine whether the union's circumstances were exceptional enough to warrant an extension of the 30-day period for lodging an application for review. The court considered whether the union had acted with due diligence in pursuing its rights and whether there were any exceptional circumstances that justified an extension of time. The court also considered whether the company would be prejudiced if an extension of time was granted.

The court found that the union had not acted with due diligence in pursuing its rights and that there were no exceptional circumstances that warranted an extension of time. The court noted that the union had failed to take reasonable steps to obtain legal advice and that it had not demonstrated any significant prejudice that would result from the delay in lodging the application for review. The court also found that the company would be prejudiced if an extension of time was granted, as it would have to prepare for the review proceedings after an extended period had elapsed. The court dismissed the union's application for an extension of time. No further orders were made.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Austube Mills 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