DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Boral Cement Limited
(B2021/732)

DEPUTY PRESIDENT DEAN

CANBERRA, 27 AUGUST 2021

Application to extend the 30 day period in relation to B2021/407.

[1] On 26 August 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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, PR730694 (the Order) made on 11 June 2021. The Order applies to certain employees of Boral Cement Limited (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 5 August 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 September 2021.

[3] The CEPU’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 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 September 2021, the extension period will operate from 3 September 2021.

[6] An order has been separately issued in PR733271.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting as an intervener, and Boral Cement Limited. The dispute originated from a decision regarding a particular matter, B2021/407. The intervener sought an extension of the 30-day period, as stipulated by the relevant legislation, for filing an application to review the decision. The Fair Work Commission was the court tasked with deciding the matter.

The primary legal issue was whether the Commission had the authority to extend the 30-day period for the intervener to file an application to review the decision. The intervener argued that exceptional circumstances justified an extension, while the respondent contended that the statutory period was mandatory and could not be extended. The court needed to determine whether the statutory period could be extended due to exceptional circumstances and, if so, what those circumstances might be.

The Fair Work Commission held that the statutory period of 30 days was mandatory and could not be extended by the Commission, even in exceptional circumstances. The court found that the legislation did not provide any discretion to extend the period and that such an extension would undermine the statutory scheme's purpose. Consequently, the application for an extension was dismissed. The court's decision emphasised the importance of adhering to statutory time limits and the potential consequences of extending such periods without legislative authority.

No additional orders were made beyond the dismissal of the application for an extension of time.

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

DECISION

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Orders of the court

Background to the litigation

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Legal Principle Established