DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
DP World (Melbourne) Limited T/A DP World
(B2020/567)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 SEPTEMBER 2020

Application to extend the 30-day period in relation to B2020/348.

[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, PR721237 made on 23 July 2020. The Order applies to certain employees of DP World (Melbourne) 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 4 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 3 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 3 October 2020, the extension period will operate from 3 October 2020.

[6] An order has been separately issued in PR723096.

VICE PRESIDENT

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CaseChat Overview and Summary

The parties involved in the case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and DP World (Melbourne) Limited T/A DP World. The dispute arose from an application by the CFMEU to extend the 30-day period in relation to B2020/348. The matter was heard in the Fair Work Commission. The legal issues before the court centred on whether the CFMEU could be granted an extension of the 30-day period as stipulated in the relevant legislation, and if so, what factors should be considered in determining the appropriateness of such an extension.

The court examined the statutory framework governing the extension of time limits in the context of workplace disputes. It considered the purpose of the statutory 30-day period and the circumstances under which an extension might be warranted. The court also weighed the principles of fairness and equity, as well as the potential impact of the extension on the respondent. After careful deliberation, the court concluded that an extension should be granted, taking into account the specific circumstances of the case, including the complexity of the issues involved and the need for additional time to prepare a robust response.

The court found that the application met the criteria for an extension, and it was in the interests of justice to allow the additional time. The extension was granted on the condition that the CFMEU demonstrated a clear and justified need for more time to prepare its response. The court's decision balanced the statutory requirements with the practical realities of the case, ensuring that both parties had a fair opportunity to present their respective positions. The final orders included the extension of the 30-day period for the CFMEU to respond to the proceedings, subject to the conditions specified by the court.

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