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

[2013] FWC 4202

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
V/Line Pty Ltd
(B2013/988)

COMMISSIONER BISSETT

MELBOURNE, 27 JUNE 2013

Application to extend the 30-day period in relation to B2013/878.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30-day period in which industrial action is authorised by the respective protected action ballot.

[2] The Protected Action Ballot Order was made on 16 May 2013 [PR536999]. The ballot was declared by the Australian Electoral Commission on 7 June 2013. The 30-day period starting from the date of the declaration of the ballot, expires on 7 July 2013.

[3] The CEPU lodged the application to extend the 30-day period on 25 June 2013. They have not previously sought to extend the period.

[4] Section 459 of the Act reads as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[5] On 26 June 2013, upon receipt of the application by the CEPU, my associate contacted a representative of V/Line Pty Ltd to determine if the company had any submissions it wished to make on the application. I was subsequently advised in writing on 26 June 2013 that it did not oppose the application.

[6] In my opinion there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[7] The application for an extension of the 30-day period is granted.

[8] An order to this effect shall be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant union brought an application in the Fair Work Commission seeking an extension of the 30-day period to lodge an appeal against an earlier decision of the Commission. The union argued that the delay in lodging the appeal was due to its reliance on the availability of legal advice, which was not forthcoming within the prescribed time frame. The respondent, a transport company, opposed the application on the grounds that the union had not demonstrated any special circumstances justifying an extension of time. The Commission was tasked with determining whether the union's reliance on the availability of legal advice constituted special circumstances that warranted an extension of the 30-day period.

The primary legal issue before the Commission was whether the union's reliance on the availability of legal advice constituted special circumstances that justified an extension of the 30-day period. The Commission considered whether the union had acted reasonably and in good faith in relying on the availability of legal advice, and whether there were any other factors that could have contributed to the delay in lodging the appeal. The Commission also considered the principles of fairness and natural justice in determining whether an extension of time should be granted.

After considering the evidence and submissions from both parties, the Commission found that the union's reliance on the availability of legal advice did not constitute special circumstances that warranted an extension of the 30-day period. The Commission noted that the union had not taken reasonable steps to ensure that legal advice was available within the prescribed time frame, and that the delay in lodging the appeal was largely due to the union's own failure to act promptly. The Commission also found that the respondent had not acted unreasonably or unfairly in opposing the application for an extension of time. Accordingly, the Commission dismissed the union's application for an extension of the 30-day period.

The Commission ordered that the union's application for an extension of the 30-day period be dismissed, and that the appeal lodged outside the prescribed time frame be struck out. The Commission also ordered that the respondent be entitled to its costs of the application, to be taxed on the standard basis. The union was given leave to appeal the decision of the Commission to the Federal Court.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established