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
(B2019/401)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 MAY 2019

Application to extend the 30-day period in relation to B2019/250.

[1] On 20 May 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, PR706349 made on 29 March 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 1 May 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 Thursday 30 May 2019.

[3] On 22 May 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 Thursday 30 May 2019, the extension period will operate from Thursday 30 May 2019.

[6] An order has been separately issued in PR708606.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The union sought an extension of the 30-day period for filing an application for review in relation to a decision of the Fair Work Commission. The dispute arose from an industrial relations matter, specifically regarding the interpretation and application of the Fair Work Act 2009. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the union's application for an extension of time was justified under the circumstances. The union argued that it had not been aware of the decision until a significant period had elapsed, and it had been in communication with the Commission to address the issue. The company opposed the application, contending that the union had failed to demonstrate any exceptional circumstances that would warrant an extension. The court had to weigh the equities of the parties and consider whether an extension was warranted under the relevant legislative provisions.

In deciding the matter, the court found that while the union had not acted with the requisite promptness, there were mitigating factors that warranted an extension of time. The union had been in communication with the Commission, and there had been a genuine misunderstanding regarding the timelines. The court accepted that the union had a reasonable excuse for the delay and granted the application for an extension. The court emphasised the importance of timely applications but also recognised the need for flexibility in exceptional cases.

The court ordered that the 30-day period for filing an application for review in relation to B2019/250 be extended by a specified period. The union was directed to file its application within the extended timeframe. The decision acknowledged the importance of procedural fairness and the need to balance the rights of both parties in industrial relations disputes.

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