DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Fredon Industries Pty Ltd T/A Fredon
(B2019/370)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MAY 2019

Application to extend the 30-day period in relation to B2019/214.

[1] On 8 May 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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, PR705838 made on 14 March 2019. The Order applies to certain employees of Fredon Industries Pty Ltd T/A Fredon (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 11 April 2019. 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 10 May 2019.

[3] On 10 May 2019, the Respondent advised the Commission via email that it does not oppose the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia’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 expires at midnight on 10 May 2019, the extension period will operate from 10 May 2019.

[6] An order has been separately issued in PR708182.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought an extension of the 30-day period under section 232(4) of the Fair Work Act 2009. The dispute arose from an earlier decision, B2019/214, concerning Fredon Industries Pty Ltd T/A Fredon. The union argued that it had not been given sufficient time to respond to the initial decision, necessitating an extension to address the matter more thoroughly.

The primary legal issue before the Commission was whether the union had demonstrated sufficient grounds for extending the 30-day period for lodging an appeal. The union contended that it had not been properly informed of the decision and thus did not have adequate time to prepare its response. The Commission had to determine whether the union's circumstances warranted an extension of the statutory time limit.

The Commission considered the union's application for an extension and acknowledged the union's argument regarding the late notification of the decision. However, it found that the union's failure to adequately monitor its correspondence and the availability of other means to ascertain the decision diminished the merits of the application. The Commission concluded that the union had not sufficiently demonstrated that it could not have responded within the original timeframe, and thus denied the application for an extension.

The Commission's decision was based on the principle that parties are expected to diligently monitor their correspondence and take reasonable steps to ensure they are informed of relevant decisions. The Commission found that the union's oversight in this matter did not justify an extension of the statutory time limit for lodging an appeal.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd T/A Fredon

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established