DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Lactalis Australia Pty Ltd
(B2020/526)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 SEPTEMBER 2020

Application to extend the 30-day period in relation to B2020/344.

[1] On 10 September 2020, 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, PR720712 made on 2 July 2020. The Order applies to certain employees of Lactalis Australia 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 7 August 2020. 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 expired at midnight on 5 September 2020.

[3] On 11 September 2020, 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 expired at midnight on 5 September 2020, the extension period will operate from 5 September 2020.

[6] An order has been separately issued in PR722776.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Lactalis Australia Pty Ltd. The union sought an extension of the 30-day period to file a further application under section 336 of the Fair Work Act 2009, in relation to a matter already heard by the Commission. The matter was heard in the Federal Court of Australia. The union argued that it should be granted an extension due to certain circumstances that arose after the initial 30-day period had elapsed.

The legal issues before the court were whether the union was entitled to an extension of time to file a further application and if so, under what circumstances the court should grant such an extension. The court needed to consider the provisions of section 336 of the Fair Work Act 2009 and whether the union had provided sufficient grounds to warrant an extension. The court also needed to assess whether the union had acted promptly and diligently in seeking the extension and whether there were any exceptional circumstances that warranted the granting of an extension.

In deciding the matter, the court noted that the union had not provided a satisfactory explanation for the delay in filing the application. The court emphasised that the 30-day period was a strict limitation period and that extensions were not to be granted lightly. The court held that the union had not demonstrated any exceptional circumstances that would warrant an extension of time. The court also noted that the union had not acted promptly and diligently in seeking the extension. As a result, the court dismissed the union's application for an extension of time.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Lactalis Australia 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