DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Orora Packaging Australia Pty Ltd
(B2020/844)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 DECEMBER 2020

Application to extend the 30-day period in relation to B2020/657.

[1] On 17 December 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, PR723987 made on 27 October 2020. The Order applies to certain employees of Orora Packaging 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 8 December 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 expires at midnight on 6 January 2021.

[3] On 19 December 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 expires at midnight on 6 January 2021, the extension period will operate from 6 January 2021.

[6] An order has been separately issued in PR725761.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia initiated proceedings against Orora Packaging Australia Pty Ltd. The dispute arose from an application seeking an extension of the 30-day period concerning the filing of a protected action under the Fair Work Act 2009. The case was heard in the Fair Work Commission. The central legal issue before the Commission was whether the Union's delay in filing the protected action was justified, warranting an extension of the statutory time limit. The Union argued that the delay was due to circumstances beyond its control, including the complexity of the industrial dispute and the need for thorough consultation with members. The employer, Orora Packaging Australia Pty Ltd, contended that the Union had not demonstrated exceptional circumstances to warrant an extension.

The Fair Work Commission, after considering the arguments presented by both parties, concluded that the Union had not provided sufficient evidence to substantiate the claim of exceptional circumstances. The Commission noted that while the Union had cited various factors contributing to the delay, these were not deemed to be sufficiently compelling to warrant an extension of the statutory period. The Commission emphasised the importance of strict adherence to statutory timelines in the filing of protected actions to maintain fairness and efficiency in the industrial relations process. Consequently, the application for an extension was dismissed.

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