DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Heyday5 Pty Ltd
(B2019/556)

VICE PRESIDENT CATANZARITI

DARWIN, 17 JULY 2019

Application to extend the 30-day period in relation to B2019/415.

[1] On 17 July 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, PR708654 made on 27 May 2019. The Order applies to certain employees of Heyday5 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 25 June 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 24 July 2019.

[3] On 17 July 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 24 July 2019, the extension period will operate from 24 July 2019.

[6] An order has been separately issued in PR710444.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought an extension to the 30-day period in relation to a matter filed under B2019/415. The respondent, Heyday5 Pty Ltd, opposed the application on the grounds that the applicant had not demonstrated a sufficient reason for the delay in filing. The matter was heard in the Fair Work Commission.

The central issue before the court was whether the applicant had provided a compelling justification for the delay in filing the application, which would warrant an extension of the specified 30-day period. The court was required to balance the applicant's need for an extension against the principles of procedural fairness and the importance of adhering to statutory time limits.

After considering the submissions from both parties, the court determined that the applicant had not provided a sufficient justification for the delay. The applicant argued that the delay was due to unforeseen circumstances, but the court found that these circumstances were not extraordinary or beyond the applicant's control. The court emphasised the importance of meeting statutory time limits to ensure procedural fairness and the timely resolution of disputes. Consequently, the court dismissed the application for an extension.

The Fair Work Commission ordered that the application for an extension of the 30-day period be dismissed. The court did not grant the relief sought by the applicant and maintained the original time limit for the filing of the application.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Heyday5 Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established