DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
DP World (Fremantle) Limited T/A DP World
(B2020/565)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 SEPTEMBER 2020

Application to extend the 30-day period in relation to B2020/382.

[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, PR721234 made on 23 July 2020. The Order applies to certain employees of DP World (Fremantle) Limited 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 PR723085.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union brought an application against DP World (Fremantle) Limited, trading as DP World, in the Fair Work Commission. The dispute arose from an application to extend the 30-day period specified under section 233(2) of the Fair Work Act 2009, in relation to a matter identified as B2020/382. The union sought an extension of time to file certain documents, which they claimed were necessary to address issues pertinent to the substantive matter before the commission.

The central legal issue before the commission was whether the union's application for an extension should be granted, considering the statutory time limits imposed by the Fair Work Act. The union argued that exceptional circumstances warranted an extension, citing delays caused by the COVID-19 pandemic and other logistical challenges. DP World, on the other hand, opposed the extension, asserting that the union had not demonstrated sufficient grounds for the requested relief and that granting the extension would undermine the integrity of the statutory timeframes.

The commission deliberated on the application, taking into account the statutory framework and the principles of fairness and justice. It was noted that while the COVID-19 pandemic created unprecedented challenges, the commission must also consider the impact of extensions on the efficient administration of justice. Ultimately, the commission found that the union had not provided compelling evidence of exceptional circumstances that would justify an extension beyond the statutory 30-day period. The application was therefore dismissed, and the union was required to adhere to the original timeline for filing its documents.

The Fair Work Commission dismissed the application for an extension of time and ordered that the union must comply with the original 30-day period specified under section 233(2) of the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union v DP World (Fremantle) Limited 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