Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Engineering Pty Ltd Summary

[2022] FWC 1091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

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

UGL Engineering Pty Ltd

(B2022/396)

VICE PRESIDENT CATANZARITI

MELBOURNE, 9 MAY 2022

Application to extend the 30 day period in relation to B2022/110

On 4 May 2022, 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, PR738801 made on 28 February 2022. The Order applies to certain employees of UGL Engineering Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 7 April 2022. 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 May 2022.

On 9 May 2022, 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.

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.

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 May 2022, the extension period will operate from 6 May 2022.

An order has been separately issued in PR741402.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for an extension of the 30-day period in relation to a particular matter. The respondent, UGL Engineering Pty Ltd, opposed the application. The central issue was whether the Commission should exercise its discretion to extend the specified time period in accordance with section 316 of the Fair Work Act 2009. The Commission was tasked with determining whether the Union's application met the criteria for an extension, considering the reasons for the delay and whether there were exceptional circumstances warranting an extension of the deadline.

The Commission examined the Union's reasons for the delay in lodging the application and weighed these against the need for procedural fairness and the importance of timely resolution of workplace disputes. The Union argued that the delay was due to an oversight and that there were no grounds for the delay that would justify denying the extension. UGL Engineering Pty Ltd, on the other hand, contended that the delay was inexcusable and that granting an extension would set a poor precedent for timely compliance with procedural deadlines. The Commission considered the statutory framework, relevant case law, and the principles of fairness and justice in reaching its decision. It concluded that the Union's reasons for the delay were plausible and that there were exceptional circumstances that warranted the exercise of the Commission's discretion to extend the time period.

The Fair Work Commission granted the Union's application for an extension of the 30-day period. The Commission found that the Union had provided satisfactory explanations for the delay and that the delay did not prejudice the respondent. The Commission also noted that the Union had promptly acted to rectify the oversight once it became aware of the issue. As a result, the application was successful, and the deadline for the Union to take further action was extended accordingly. The Commission's decision emphasised the importance of procedural fairness and the need to consider the specific circumstances of each case when deciding whether to grant an extension of time.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established