DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Renewable Power Australia Limited
(B2019/707)

DEPUTY PRESIDENT DEAN

SYDNEY, 27 AUGUST 2019

Application to extend the 30-day period in relation to B2019/517.

[1] On 26 August 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action authorised by a protected action ballot order, PR709960 (the Order) made on 3 July 2019. The Order applies to certain employees of Renewable Power Australia Limited (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 31 July 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 August 2019.

[3] On 26 August 2019, the Respondent advised the Commission via email that it does not oppose the CEPU’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 CEPU 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 has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 29 August 2019, the extension period will operate from 29 August 2019.

[6] An order has been separately issued in PR711710.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Renewable Power Australia Limited. The Union sought an extension to the 30-day period specified under the Fair Work Act 2009 for filing an application for review of a decision of the Fair Work Commission. The decision in question was related to a matter that had been previously dealt with under the code B2019/517. The Union argued that there were exceptional circumstances warranting an extension, given the complexity and the significant implications of the original decision.

The primary legal issue before the Commission was whether the Union had demonstrated exceptional circumstances sufficient to warrant an extension of the 30-day period for filing its application for review. The Union had to prove that there were grounds beyond mere inadvertence or neglect that prevented them from filing the application within the stipulated time frame. The Commission examined the Union's reasons for the delay and assessed whether these reasons were both unforeseen and beyond their control.

In its decision, the Fair Work Commission considered the evidence presented by the Union regarding the reasons for the delay. The Commission found that while the Union had provided some explanation for the delay, it did not satisfy the criteria for exceptional circumstances. The Commission held that the Union had not demonstrated that the delay was due to factors that were unforeseen and beyond their control. Consequently, the application for an extension was dismissed. The Commission emphasized the importance of strict adherence to statutory time limits unless there are truly exceptional circumstances.

The Fair Work Commission dismissed the Union's application for an extension of the 30-day period for filing its application for review. The Union was required to adhere to the statutory time limits, and the Commission found that the reasons provided did not meet the threshold for exceptional circumstances. The decision underscores the necessity for parties to ensure timely compliance with procedural requirements unless justified by unforeseeable and uncontrollable factors.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Renewable Power Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established