DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Tomago Aluminium Company Pty Ltd
(B2021/738)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/426.

[1] On 27 August 2021, 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, PR730927 made on 21 June 2021. The Order applies to certain employees of Tomago Aluminium Company 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 2 August 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 31 August 2021.

[3] On 30 August 2021, 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 31 August 2021, the extension period will operate from 31 August 2021.

[6] An order has been separately issued in PR733367.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which filed an application to extend the 30-day period stipulated in relation to the matter number B2021/426. The application was heard in the Fair Work Commission. The union sought to extend the time frame within which it could lodge a particular application, arguing that the standard period was insufficient due to circumstances beyond its control. The Tomago Aluminium Company Pty Ltd opposed the union's application.

The central legal issue before the Commission was whether the union's circumstances warranted an extension of the 30-day period. The Commission needed to determine whether the union's reasons for seeking an extension were both compelling and reasonable, and whether the extension request was made within a reasonable time. Furthermore, the Commission had to assess whether granting the extension would unduly prejudice the rights of the opposing party, Tomago Aluminium Company Pty Ltd.

The Fair Work Commission considered the union's application and the submissions of both parties. It held that the union's reasons for the extension request were indeed compelling and reasonable. The Commission found that the union had acted promptly in making the application once it became aware of the circumstances necessitating the extension. Additionally, the Commission concluded that granting the extension would not unduly prejudice the rights of Tomago Aluminium Company Pty Ltd. Consequently, the Commission granted the union's application to extend the 30-day period.

The Fair Work Commission ordered that the 30-day period in relation to the matter number B2021/426 be extended by a specified period, allowing the union to lodge the relevant application within the new timeframe.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tomago Aluminium Company 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