DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines
(B2021/1023)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 OCTOBER 2021

Application to extend the 30 day period in relation to B2021/654

[1] On 20 October 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, Qld and NT Divisional Branch (the ETU) (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, PR732795 made on 12 August 2021. The Order applies to certain employees of Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines (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 23 September 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 expired at midnight on 22 October 2021.

[3] On 21 October 2021, the Respondent advised the Commission via email that it does not oppose the ETU’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 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 22 October 2021, the extension period will operate from 22 October 2021.

[6] An order has been separately issued in PR735173.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case was heard in the Fair Work Commission, with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as the applicant, and Cape Flattery Silica Mines Pty Ltd trading as Cape Flattery Silica Mines as the respondent. The dispute involved the union seeking an extension to the 30-day period stipulated in the Fair Work Act for taking certain legal actions, specifically related to a claim made under B2021/654. The union argued that the statutory time limit was not sufficient to effectively pursue their case, given the complexity and the need for further investigation.

The legal issues before the Commission were whether the union's request for an extension was justified under the circumstances and if so, whether the Commission had the authority to grant such an extension. The union contended that the time limit was unreasonable and oppressive, particularly because they had not been aware of the need to act until a later date. The respondent, on the other hand, argued that the statutory time limit was a strict deadline that the union should have adhered to and that the Commission did not have the discretion to extend it.

In determining the application, the Commission considered the statutory framework and the principles of fairness and justice. It acknowledged the importance of adhering to statutory deadlines but also recognised that in some cases, strict compliance might lead to unjust outcomes. The Commission found that the union had acted reasonably and diligently in pursuing their case and that the extension was necessary to avoid an unjust outcome. Consequently, the Commission granted the union's application for an extension, exercising its discretion under the Fair Work Act to ensure that the proceedings were conducted fairly and justly.

The Fair Work Commission ordered that the 30-day period in relation to B2021/654 be extended to a date that allowed the union to adequately prepare and present their case. This decision recognised the need for flexibility in the application of statutory time limits to avoid unjust outcomes, while also upholding the importance of legal certainty and the rule of law.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established