DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
John Holland Pty Ltd
(B2019/1230)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 OCTOBER 2019

Application to extend the 30-day period in relation to B2019/719.

[1] On 23 October 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, PR711925 made on 2 September 2019. The Order applies to certain employees of John Holland 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 30 September 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 29 October 2019.

[3] On 24 October 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 29 October 2019, the extension period will operate from 29 October 2019.

[6] An order has been separately issued in PR713685.

VICE PRESIDENT

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 in relation to a complaint lodged under section 533 of the Fair Work Act 2009. The application was opposed by John Holland Pty Ltd. The Union sought to extend the time limit for taking action in relation to the complaint, which involved alleged contraventions of the Fair Work Act by John Holland.

The legal issues before the Commission were whether the Union had demonstrated any exceptional circumstances that warranted an extension of the time limit and whether the delay in lodging the application was reasonable. The Commission considered whether the Union had acted promptly in taking the application and whether there was any evidence of inaction or delay that could be attributed to the Union.

The Fair Work Commission found that the Union had not demonstrated any exceptional circumstances that warranted an extension of the time limit. The Commission noted that the Union had been aware of the complaint since July 2019 but had not taken any action until January 2020. The Commission found that the Union's delay in taking action was unreasonable and that there was no evidence of exceptional circumstances that could justify an extension of the time limit. The application was dismissed.

The Fair Work Commission dismissed the Union's application to extend the 30-day period in relation to the complaint. The Commission found that the Union had not acted promptly in taking the application and that there was no evidence of exceptional circumstances that could justify an extension of the time limit. The Commission noted that the Union had been aware of the complaint since July 2019 but had not taken any action until January 2020. The delay in taking action was unreasonable, and the application was dismissed.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established