Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v James Cook University Summary

[2013] FWC 4950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
James Cook University
(B2013/1041)

COMMISSIONER BOOTH

BRISBANE, 24 JULY 2013

Application to extend the 30-day period in relation to B2013/913.

[1] On 18 July 2013, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia made an application under s.459(3) of the Fair Work Act 2009 (the Act) to extend the period in which certain industrial action is to commence for purposes of s.459(1)(d)(ii) of the Act in respect of B2013/913. The relevant employer is James Cook University.

[2] Section 459 of the Act reads as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[3] Section 459(3) of the Act vests a discretion in the Fair Work Commission (the Commission) in respect of whether to grant such an application upon the two factual preconditions (at s.459(3)(a) and 459(3)(b) of the Act) being made out. On the basis of the material before me, I am satisfied that each of the requirements of the Act as are relevant to this application have been met.

[4] The employer provided a written response on 19 July 2013 to the Application and indicated that it did not oppose an extension of time.

[5] I therefore order that the 30-day period referred to in s.459(1)(d)(i) of the Act be extended by a further 30 days.

[6] An order to that effect will issue simultaneously with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought to extend the 30-day period in relation to B2013/913. The application was heard in the Fair Work Commission. The dispute arose out of the applicant's complaint regarding the termination of employment of one of its members by the respondent, James Cook University.

The legal issues before the court were whether the 30-day period for lodging an application for review of an adverse decision should be extended and, if so, under what circumstances. The applicant argued that it had not been made aware of the decision until after the 30-day period had elapsed and sought an extension on the basis of exceptional circumstances. The respondent opposed the application, arguing that the applicant had failed to demonstrate any exceptional circumstances that would warrant an extension.

The court considered the relevant legislation and case law in determining whether the 30-day period should be extended. The court noted that the Fair Work Act 2009 provides for an extension of time where there are exceptional circumstances. The court found that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of the 30-day period. The court held that the applicant had failed to take reasonable steps to ensure that it was aware of the decision and that there were no exceptional circumstances that would warrant an extension of the 30-day period. The application was dismissed.

The Fair Work Commission dismissed the application to extend the 30-day period in relation to B2013/913. The Commission found that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of the 30-day period. The Commission held that the applicant had failed to take reasonable steps to ensure that it was aware of the decision and that there were no exceptional circumstances that would warrant an extension of the 30-day period.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v James Cook University

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established