Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Jemena Asset Management Pty Ltd Summary

[2013] FWC 8436

The attached document replaces the document previously issued with the above code on 25 October 2013

The paragraph numbering has been fixed.

Helen Coulson

Acting associate to Commissioner Lewin

28 October 2013

[2013] FWC 8436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Jemena Asset Management Pty Ltd
(B2013/1348)

COMMISSIONER LEWIN

MELBOURNE, 25 OCTOBER 2013

Application to extend the 30-day period in relation to B2013/1187.

[1] This matter concerns the declaration of the result of a protected action ballot (PR541439) held in matter B2013/1187 and declared on 30 September 2013.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

[3] Section 459(3) of the Act provides as follows:

“(3) The FWC 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 the FWC for the period to be extended; and

(b) the period has not previously been extended.”

[4] The application made by the CEPU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

[5] Jemena Asset Management Pty Ltd has advised the Commission that the application is not opposed.

[6] I am satisfied that the relevant requirements of the Act have been met and that the application should be granted given the express statutory terms.

[7] Accordingly, pursuant to section 459(3) of the Fair Work Act 2009, I order that the 30 day period for the commencement of protected industrial action for eligible CEPU members employed by Jemena Asset Management Pty Ltd be extended by a further 30 days.

[8] This order will operate on and from 25 October 2013.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to extend the 30-day period within which they could lodge an appeal against an order made by the Commission. The appeal was in relation to a decision regarding Jemena Asset Management Pty Ltd. The Commission had to determine whether to grant the union's application for an extension of time.

The primary legal issue the Commission had to decide was whether the union's application for an extension of the appeal period was justified. The union argued that they had been unable to lodge the appeal within the prescribed 30-day period due to exceptional circumstances. The Commission had to assess the merits of the union's application and consider whether the exceptional circumstances were sufficient to warrant an extension. The Fair Work Act 2009 provides that the Commission may extend the time for lodging an appeal if it is satisfied that there are exceptional circumstances justifying the extension.

In assessing the union's application, the Commission took into account the union's explanation for the delay and the reasons why the appeal could not be lodged within the 30-day period. The Commission considered the union's argument that they had been misled by the conduct of Jemena Asset Management Pty Ltd, which had not provided them with all the necessary information to prepare the appeal. The Commission also considered the union's argument that they had not become aware of the relevant information until after the 30-day period had expired. After considering the union's application and the evidence presented, the Commission was satisfied that there were exceptional circumstances justifying an extension of the appeal period. The Commission granted the union's application for an extension and set aside the 30-day period for lodging the appeal.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established