DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Sydney Trains
(B2021/1080)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 NOVEMBER 2021

Application to extend the 30 day period in relation to B2021/753

[1] On 10 November 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (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, PR734099 made on 20 September 2021. The Order applies to certain employees of Sydney Trains (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 October 2021. 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 6 November 2021.

[3] On 12 November 2021, 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 have been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 6 November 2021, the extension period will operate from 6 November 2021.

[6] An order has been separately issued in PR735810.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking an extension of the 30-day period within which to file an appeal against a decision made by Sydney Trains. The application was heard in the Fair Work Commission. The legal issues before the court were whether the union had demonstrated any exceptional circumstances that warranted an extension of the appeal period and whether granting an extension would cause any injustice to Sydney Trains.

The Fair Work Commission considered that the union had not demonstrated any exceptional circumstances that warranted an extension of the appeal period. The union argued that the delay in filing the appeal was due to its inability to obtain certain documents from Sydney Trains. However, the Fair Work Commission noted that the union had been aware of the need for these documents for some time and had not taken any steps to obtain them in a timely manner. The Fair Work Commission also considered that granting an extension would cause injustice to Sydney Trains as it would delay the resolution of the dispute and potentially cause further disruption to its operations. The Fair Work Commission therefore dismissed the union's application for an extension of time.

The Fair Work Commission ordered that the union's application be dismissed and that the 30-day period for filing an appeal remain in place. The union was ordered to pay Sydney Trains' costs of the application.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established