DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
DP World Brisbane Pty Ltd T/A DP World
(B2020/566)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 SEPTEMBER 2020

Application to extend the 30-day period in relation to B2020/383.

[1] On 23 September 2020, 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, PR721235 made on 23 July 2020. The Order applies to certain employees of DP World Brisbane Pty Ltd T/A DP World (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 3 September 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 2 October 2020.

[3] On 24 September 2020, 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 2 October 2020, the extension period will operate from 2 October 2020.

[6] An order has been separately issued in PR723090.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union sought an extension of the 30-day period set out in section 170GB(1) of the Fair Work Act 2009 for filing a notice of appeal against an order of the Fair Work Commission. The order was made in the case of B2020/383, which involved a dispute between the Union and DP World Brisbane Pty Ltd, trading as DP World. The Union contended that the delay in filing the notice was due to the impact of the COVID-19 pandemic on their ability to prepare and lodge the appeal.

The court was required to determine whether the Union had a valid reason for the delay and whether it was appropriate to extend the 30-day period. The key issue was whether the effects of the pandemic constituted "special circumstances" under section 170GB(5) of the Act. The court needed to assess the extent to which the pandemic had impacted the Union's ability to file the appeal and whether this was beyond their control.

The court acknowledged the significant disruptions caused by the COVID-19 pandemic and recognised that it had affected many aspects of daily life, including the operations of legal and industrial entities. The court held that the pandemic did constitute "special circumstances" that justified the Union's delay in filing the appeal. The court emphasised that the pandemic had created unprecedented challenges for all parties, including those involved in legal proceedings. The court granted the Union's application to extend the 30-day period, allowing them to file their notice of appeal within a reasonable timeframe. The court did not specify the exact extension period but noted that it would consider the particular circumstances of the case when determining the appropriate duration.

Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd T/A DP World

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established