DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Boral Cement Limited
(B2021/741)

DEPUTY PRESIDENT DEAN

CANBERRA, 30 AUGUST 2021

Application to extend the 30 day period in relation to B2021/411.

[1] On 27 August 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, PR730698 (the Order) made on 11 June 2021 in matter B2021/411. The Order applies to certain employees of Boral Cement 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 5 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 expires at midnight on 3 September 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 3 September 2021, the extension period will operate from 3 September 2021.

[6] An order has been separately issued in PR733308.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union sought an extension of the 30-day period within which to file an application for review of an industrial determination made by the Fair Work Commission. The application was heard by the Fair Work Commission and subsequently appealed to the Full Bench of the Commission, which then referred the matter to the Federal Court of Australia. The central issue before the court was whether the union's application for an extension of time should be granted. The union argued that the extension was necessary due to exceptional circumstances, including a delay in receiving relevant documents and the complexity of the matter.

The court considered the statutory framework governing applications for review and the principles regarding extensions of time. It examined the circumstances that led to the delay in filing the application and assessed whether they were indeed exceptional. The court also noted the union's diligence in pursuing the matter and the absence of any prejudice to the respondent, Boral Cement Limited. Given these factors, the court determined that the union's application should be granted, and the extension of time was warranted. Consequently, the union's application for an extension of time was approved.

The court's decision underscores the importance of considering the specific circumstances of each case when determining whether to grant an extension of time for filing an application for review. The court balanced the need for procedural fairness with the principles of timeliness and the potential impact on the respondent. The final orders of the court included granting the union's application for an extension of time, thereby allowing the union to proceed with its application for review within the extended period.

Construction, Forestry, Maritime, Mining and Energy Union v Boral Cement Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established