DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Etex Australia Pty Ltd
(B2021/731)

DEPUTY PRESIDENT DEAN

CANBERRA, 27 AUGUST 2021

Application to extend the 30 day period in relation to B2021/406.

[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, PR730636 (the Order) made on 10 June 2021. The Order applies to certain employees of Etex Australia 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 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 2 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 2 September 2021, the extension period will operate from 2 September 2021.

[6] An order has been separately issued in PR733269.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting as the representative for employees, and Etex Australia Pty Ltd, the employer. The dispute centred around the extension of the 30-day period stipulated in B2021/406, a regulation concerning the application of the Fair Work Act 2009. The case was heard in the Fair Work Commission, an Australian independent statutory body responsible for resolving workplace disputes. The Union sought to extend the specified period, arguing that the extension was necessary due to exceptional circumstances, while Etex opposed the extension, asserting that there were no grounds for it.

The legal issues before the Commission involved interpreting the provisions of B2021/406 and determining whether the Union's circumstances warranted an extension of the 30-day period. The Union contended that the extension was necessary due to delays in the delivery of documents and the complexity of the case, which they argued warranted additional time. Etex, however, maintained that the Union had not demonstrated any exceptional circumstances that would justify an extension and that the statutory period should be adhered to strictly.

The Commission, in its reasoning, found that while the Union had encountered some delays, these did not rise to the level of exceptional circumstances that would warrant an extension of the statutory period. The Commission emphasised the importance of adhering to statutory timelines unless there were truly exceptional reasons that could not have been reasonably anticipated. The Commission concluded that the Union had not provided sufficient justification for extending the 30-day period, and therefore denied the application for an extension.

As a result of the Commission's decision, the Union's application to extend the 30-day period was dismissed. The Fair Work Commission upheld the statutory timeframe as set out in B2021/406, and no extension was granted. This decision highlights the stringent approach taken by the Commission when considering applications for extensions of statutory periods, underscoring the need for exceptional circumstances to be demonstrated convincingly.

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