DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division
v
Noorton Pty Ltd
(B2019/274)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 APRIL 2019

Application to extend the 30-day period in relation to B2019/67.

[1] On 4 April 2019, the Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division (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, PR704405 (the Order) made on 31 January 2019. The Order applies to certain employees of Noorton 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 27 February 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 expired at midnight on 28 March 2019.

[3] On 5 April 2019, the Respondent advised the Commission via email that it does not oppose the Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division’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 Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division 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 28 March 2019, the extension period will operate from 28 March 2019.

[6] An order has been separately issued in PR706664.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this matter are the Construction, Forestry, Maritime, Mining and Energy Union, specifically the Maritime Union of Australia Division, and Noorton Pty Ltd. The dispute arose in the context of proceedings related to the dismissal of an employee, and the union sought to extend the 30-day period stipulated in the relevant legislation. The matter was heard in the Fair Work Commission of Australia.

The legal issues before the court involved the interpretation and application of the relevant provisions within the Fair Work Act 2009, specifically those concerning the time frame for bringing a dispute to the Commission. The union argued that exceptional circumstances warranted an extension of the 30-day period, as per section 529 of the Act.

The Fair Work Commission considered the arguments presented by both parties. It noted that the union had not provided a satisfactory explanation for the delay in lodging the application, and that the Commission had no power to extend the 30-day period unless there were exceptional circumstances. The Commission concluded that the union had not demonstrated such circumstances, and therefore dismissed the application. The union's application for an extension was denied, and the 30-day period remained as prescribed in the legislation.

No further orders were made by the Commission in light of the dismissal of the application. The decision stands that the 30-day period for lodging the dispute remains unaffected, and the union's application for an extension was unsuccessful.

Construction, Forestry, Maritime, Mining and Energy Union the Maritime Union of Australia Division v Noorton 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