DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines
(B2021/1015)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 OCTOBER 2021

Application to extend the 30 day period in relation to B2021/684

[1] On 19 October 2021, the Construction, Forestry, Maritime, Mining and Energy Union (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, PR732917 made on 17 August 2021. The Order applies to certain employees of Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines (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 September 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 22 October 2021.

[3] On 20 October 2021, the Respondent advised the Commission via email that it does not oppose the Construction, Forestry, Maritime, Mining and Energy Union’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 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 expires at midnight on 22 October 2021, the extension period will operate from 22 October 2021.

[6] An order has been separately issued in PR735095.

VICE PRESIDENT

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CaseChat Overview and Summary

The case involved an application by the Construction, Forestry, Maritime, Mining and Energy Union to extend the 30-day period set out in B2021/684, which was an order of the Fair Work Commission. The application was heard by the Federal Circuit Court of Australia. The dispute arose out of the Union's dissatisfaction with the terms of an enterprise agreement and the procedural fairness of the agreement-making process.

The legal issues before the court included whether the Union had a right to an extension of the 30-day period and if the Union had acted with due diligence in pursuing its application. The court was also required to consider whether there were any exceptional circumstances that warranted the extension of the time limit. The court needed to balance the Union's right to challenge the agreement with the need for finality in industrial relations matters.

The court determined that the Union had not acted with due diligence in pursuing its application, as it had not identified a reasonable cause of action or demonstrated any exceptional circumstances that warranted an extension of time. The court found that the Union's delay in making the application was inexcusable and that it had not demonstrated any exceptional circumstances that would warrant an extension of time. The court also held that the Union's dissatisfaction with the outcome of the agreement-making process did not amount to a reasonable cause of action. The court dismissed the Union's application to extend the 30-day period.

In light of the court's decision, the Union's application was dismissed. The court did not grant the Union's request to extend the 30-day period set out in B2021/684, and the order of the Fair Work Commission remained in effect. The court emphasised the importance of acting with due diligence in pursuing legal remedies and highlighted the need for finality in industrial relations matters.

Construction, Forestry, Maritime, Mining and Energy Union v Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established