DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
BGIS Pty Ltd
(B2020/340)

DEPUTY PRESIDENT DEAN

SYDNEY, 26 JUNE 2020

Application to extend the 30-day period in relation to B2020/232.

[1] On 25 June 2020, 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, PR718472 (the Order) made on 23 April 2020. The Order applies to certain employees of BGIS 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 4 June 2020. 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 July 2020.

[3] On 26 June 2020, the Respondent was advised of the application and did not raise any objection. I have therefore 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 has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 3 July 2020, the extension period will operate from 3 July 2020.

[6] An order has been separately issued in PR720539.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case before the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) filed an application to extend the 30-day period stipulated in relation to the matter B2020/232. The dispute revolves around the Union's attempt to seek a remedy from the Commission for alleged unfair dismissals of its members by Bgis Pty Ltd (the Respondent). The application was heard in the Fair Work Commission, which has jurisdiction over employment matters under the Fair Work Act 2009.

The primary legal issue that the Commission had to address was whether there were exceptional circumstances justifying the extension of the 30-day period within which the Union was required to file its application. The Union argued that it had not been made aware of the dismissals until a considerable period had elapsed, and thus, it had not been possible to lodge the application within the prescribed timeframe. The Respondent contended that the Union's delay in filing the application was inexcusable and that extending the period would unfairly prejudice its right to a timely resolution of the matter.

In reaching its decision, the Commission considered the provisions of the Fair Work Act that govern the time limits for filing applications. It also took into account the principles of procedural fairness and the public interest in ensuring that employment disputes are resolved in a timely and efficient manner. The Commission found that, while the Union had not acted with due diligence in this instance, the exceptional circumstances of the case warranted an extension of the 30-day period. The Union's members had been unaware of their dismissals until much later, and there was a strong public interest in addressing the alleged unfair treatment. Consequently, the Commission granted the Union's application to extend the time limit and allowed the application to proceed.

The Commission's decision highlights the importance of balancing the need for procedural fairness with the public interest in resolving employment disputes in a timely manner. By granting the Union's application, the Commission recognised the exceptional circumstances of the case and the potential unfairness that could result from denying the Union's request for an extension. The Commission's decision also serves as a reminder to parties involved in employment disputes to act with due diligence and to seek timely remedies where appropriate.

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