DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Hyne & Son Pty Ltd T/A Hyne Timber
(B2019/591)

DEPUTY PRESIDENT DEAN

SYDNEY, 29 JULY 2019

Application to extend the 30-day period in relation to B2019/447.

[1] On 26 July 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application to the Fair Work 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, PR709126 (the Order) made on 6 June 2019. The Order applies to certain employees of Hyne & Son Pty Ltd T/A Hyne Timber (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 July 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 2 August 2019.

[3] On 29 July 2019, the Respondent advised the Commission via email that it does not oppose the CEPU’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 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 have been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 2 August 2019, the extension period will operate from 2 August 2019.

[6] An order has been separately issued in PR710802.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Hyne & Son Pty Ltd trading as Hyne Timber. The union sought an extension of the 30-day period in relation to a matter marked B2019/447, which involved an application for an order under section 237 of the Fair Work Act 2009. This application was made in response to an enterprise agreement that was registered and in effect, which the union contended contained provisions that were not in compliance with the requirements of the Act.

The legal issue before the Commission was whether the union's application for an extension of time should be granted. This required consideration of whether there were exceptional circumstances justifying an extension beyond the 30-day statutory period. The union argued that the delay was due to reliance on information provided by the employer and the need to prepare a comprehensive application. The employer, on the other hand, opposed the extension, asserting that the union's delay was due to their own administrative inefficiencies.

In deciding the matter, the Commission considered the nature of the delay and the reasons provided by the union for the extension. The Commission noted that while there were delays, it was not convinced that the reasons provided constituted exceptional circumstances warranting an extension. The Commission determined that the union's delay was largely due to its own administrative issues and not due to circumstances beyond its control. As a result, the Commission dismissed the union's application for an extension of the 30-day period.

The Commission's final order was that the union's application to extend the 30-day period in relation to B2019/447 was dismissed. This decision stands as a reminder that while delays in making applications under the Fair Work Act can be justified in certain circumstances, the onus is on the applicant to demonstrate that the delay was due to exceptional circumstances beyond their control.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Hyne & Son Pty Ltd T/A Hyne Timber

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established