DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Built Pty Limited
(B2021/107)

DEPUTY PRESIDENT DEAN

SYDNEY, 24 FEBRUARY 2021

Application to extend the 30-day period in relation to B2020/835.

[1] On 23 February 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, PR725817 (the Order) made on 23 December 2020. The Order applies to certain employees of Built 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 5 February 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 6 March 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 6 March 2021, the extension period will operate from 6 March 2021.

[6] An order has been separately issued in PR727273.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union filed an application seeking an extension of the 30-day period for responding to an application for registration of an enterprise agreement. The application was heard by the Fair Work Commission (FWC). The union argued that the 30-day period should be extended due to circumstances that prevented it from responding in time. The matter was referred to the FWC by the Fair Work Ombudsman, who had earlier rejected the union's application for an extension.

The primary legal issue the FWC had to address was whether the union's circumstances were exceptional enough to warrant an extension of the 30-day period. The FWC considered whether the union's delay in responding was due to circumstances beyond its control, and whether it had acted with due diligence in preparing its response. The union argued that it had been unable to respond in time due to internal delays and difficulties in obtaining relevant information. The FWC also needed to consider whether granting an extension would be consistent with the principles of fairness and procedural justice.

In its decision, the FWC determined that the union's circumstances were not exceptional enough to justify an extension of the 30-day period. The FWC found that the union had not demonstrated that the delay was due to circumstances beyond its control, and that it could have acted with more diligence in preparing its response. The FWC held that granting an extension in this case would not be consistent with the principles of fairness and procedural justice. Consequently, the FWC dismissed the union's application for an extension. The FWC noted that the union had ample time to prepare its response, and that it had not provided a compelling reason for the delay. The FWC emphasised that the 30-day period was a strict deadline, and that extensions were only granted in exceptional circumstances.

The FWC did not make any specific orders in this case. However, it did remind the union of the importance of adhering to deadlines and acting with due diligence in responding to applications for enterprise agreement registration. The union was also advised to review its internal processes to ensure that it could respond promptly and effectively to such applications in the future.

Construction, Forestry, Maritime, Mining and Energy Union v Built 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