DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Corinthian Industries (Australia) Pty Ltd
(B2019/1404)

DEPUTY PRESIDENT DEAN

SYDNEY, 20 DECEMBER 2019

Application to extend the 30-day period in relation to B2019/1256.

[1] On 19 December 2019, 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, PR713863 (the Order) made on 31 October 2019. The Order applies to certain employees of Corinthian Industries (Australia) 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 25 November 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 expires at midnight on 24 December 2019.

[3] On 20 December 2019, the Respondent advised the Commission via email that it does not oppose the CFMMEU’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 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 24 December 2019, the extension period will operate from 24 December 2019.

[6] An order has been separately issued in PR715515.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) versus Corinthian Industries (Australia) Pty Ltd, the dispute was brought before the Fair Work Commission. The matter revolved around the union's application to extend the 30-day period prescribed under section 239(1) of the Fair Work Act 2009 for issuing a notice of dispute to Corinthian Industries. The union sought the extension to allow for the completion of investigative processes in relation to an alleged contravention of the enterprise agreement.

The legal issues at the core of the decision involved the interpretation and application of section 239(1) of the Fair Work Act, focusing on whether the union had a valid reason to request an extension and whether the reasons provided were sufficient under the law. The union argued that the complexity and volume of the investigative work required necessitated an extension, while Corinthian Industries contended that the union had ample time to complete its investigation within the statutory period and that the request for an extension was unjustified.

The Commission considered the statutory framework, the union's duty to investigate disputes thoroughly, and the circumstances leading to the application for an extension. It found that while the union had a responsibility to investigate disputes effectively, the reasons provided for the extension were not sufficient to warrant a departure from the statutory timeframe. The Commission held that the union had not demonstrated exceptional circumstances that would justify an extension beyond the 30-day period. Consequently, the application for an extension was dismissed.

The Fair Work Commission's decision resulted in the union's application to extend the 30-day period being dismissed. The union was required to proceed with issuing the notice of dispute within the original timeframe as prescribed by the Fair Work Act. The Commission's ruling emphasized the importance of adhering to statutory deadlines unless there are compelling reasons to do otherwise, and it highlighted the need for unions to plan their investigative processes within the legislative constraints.

Construction, Forestry, Maritime, Mining and Energy Union v Corinthian Industries (Australia) 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