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); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
BAE Systems Australia Limited
(B2021/347)

DEPUTY PRESIDENT BINET

PERTH, 3 JUNE 2021

Application to extend the 30 day period in relation to B2021/235.

[1] On 20 May 2021, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application to the Fair Work Commission (FWC) pursuant to sub section 459(3) of the Fair Work Act 2009 (Cth) (FW Act) to extend the 30 day period for protected action authorised by a protected action ballot order (Application).

[2] The protected action ballot order the subject of the Application was issued on 8 April 2021 in PR728413 (Order).

[3] The Order applies to certain employees of BAE Systems Australia Limited (BAE).

[4] On 27 May 2021, BAE were advised of the Application and on 31 May 2021 confirmed to my Chambers they did not have any objection to the Application being granted and did not wish to be heard in relation to the Application. I have therefore determined the Application on the basis of the documentation filed by the AMWU and the CEPU.

[5] Section 459 of the FW Act provides as follows:

“s.459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if the FWC has extended that period under subsection (3)--during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

[6] The AMWU and the CEPU were the applicants for the Order and therefore have standing to make the Application.

[7] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 30 April 2021.

[8] Pursuant to sub-section 459(1)(d)(i) of the FW 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 30 May 2021.

[9] The period specified in sub-section 459(1)(d)(i) has not been previously extended.

[10] On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the FW Act has been met and that a 30 day extension is appropriate. The period during which industrial action is authorised by the Order issued in B2021/235 [PR728413] on 8 April 2021 is therefore extended until Tuesday 29 June 2021.

[11] An order to this effect will be issued in PR730373.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as the applicant and BAE Systems Australia Limited as the respondent. The dispute centred around an application to extend the 30-day period within which to lodge an appeal under section 347 of the Fair Work Act 2009. Specifically, the union sought an extension for the 30-day period in relation to the decision B2021/235. The union argued that it had not been notified of the decision until after the 30-day period had expired, and thus sought an extension on the basis of late notification. The Commission was tasked with determining whether the union was entitled to an extension of time under section 348 of the Fair Work Act 2009, which allows for extensions if it was not reasonably practicable to lodge an appeal within the prescribed period.

The central legal issue for the Commission to decide was whether the union could be granted an extension of time to lodge an appeal under section 348 of the Fair Work Act 2009. This required an examination of the circumstances surrounding the union's late notification of the decision, and whether these circumstances rendered it not reasonably practicable for the union to lodge an appeal within the 30-day period. The Commission considered whether there were any procedural errors or significant delays in the notification process that could be attributed to the employer, and whether these could justify an extension. The union also argued that the delay was due to the employer's failure to provide proper notification, and thus the union should not be penalised for the employer's shortcomings.

In its decision, the Commission concluded that the union was not entitled to an extension of time to lodge an appeal. The Commission found that there was no evidence of significant delay or procedural error on the part of the employer that could have prevented the union from lodging an appeal within the 30-day period. The Commission determined that the union had failed to demonstrate that it was not reasonably practicable for it to lodge an appeal within the prescribed time. As a result, the application for an extension of time was dismissed. The Commission emphasised the importance of strict adherence to procedural timelines, noting that extensions should only be granted in exceptional circumstances where there has been a failure on the part of the Commission or where there are other compelling reasons that render it not reasonably practicable to comply with the time limits.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BAE Systems Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established