DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
AW Edwards Pty Limited
(B2021/15)

DEPUTY PRESIDENT DEAN

SYDNEY, 15 JANUARY 2021

Application to extend the 30-day period in relation to B2020/702.

[1] On 15 January 2021, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action authorised by a protected action ballot order, PR724474 (the Order) made on 11 November 2020. The Order applies to certain employees of AW Edwards Pty Limited (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 23 December 2020. 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 expires at midnight on 21 January 2021.

[3] The CFMMEU’s application to extend the 30 day period for protected industrial action is not opposed by the Respondent. Accordingly, I have decided to determine the matter on the basis of the documentation filed.

[4] In addressing s.459(3) of the Act, this application is made by the CFMMEU 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 has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 21 January 2021, the extension period will operate from 21 January 2021.

[6] An order has been separately issued in PR726192.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for an extension of the 30-day period in relation to the application B2020/702, which sought a declaration that the employer, AW Edwards Pty Limited, had contravened a provision of the Fair Work Act 2009. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the CFMEU had provided sufficient grounds for an extension of the 30-day period within which the application had to be filed. The Commission considered the principles of procedural fairness and the objective of providing a timely resolution to the dispute. It also examined the reasons provided by the CFMEU for the delay in filing the application.

The Commission acknowledged that procedural fairness required it to consider the application for an extension, despite the statutory deadline having passed. It noted that the CFMEU had provided evidence of efforts to resolve the dispute through negotiation and conciliation, which had been unsuccessful. The Commission further found that the CFMEU had acted reasonably in seeking the extension, given the circumstances. The application for an extension was therefore granted, and the 30-day period was extended to allow the CFMEU to proceed with its application. The Commission emphasised the importance of timely resolution of disputes and the need for parties to act diligently in pursuing their claims.

The final orders of the Commission were that the 30-day period within which the application B2020/702 had to be filed was extended, and the application would proceed to be heard on its merits. The Commission also directed the parties to engage in good faith negotiations and conciliation to resolve the dispute. The decision highlights the importance of procedural fairness and the objective of timely resolution of disputes in the Fair Work Commission. It also underscores the need for parties to act diligently in pursuing their claims and to provide sufficient grounds for any delays in filing applications.

Construction, Forestry, Maritime, Mining and Energy Union v AW Edwards Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established