DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Etex Australia Pty Ltd
(B2021/680)

DEPUTY PRESIDENT DEAN

CANBERRA, 17 AUGUST 2021

Application to extend the 30 day period in relation to B2021/396.

[1] On 16 August 2021, 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 made on 7 June 2021 in matter B2021/396. The Order applies to certain employees of Etex 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 21 July 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 19 August 2021.

[3] The CFMMEU’s application to extend the 30 day period for protected industrial action is not opposed by the Respondent. Accordingly, I have decided to determine 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 19 August 2021, the extension period will operate from 19 August 2021.

[6] An order has been separately issued in PR732899.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union and Etex Australia Pty Ltd. The dispute related to an application by the Union to extend the 30-day period in relation to B2021/396. The application was heard in the Fair Work Commission. The legal issues that the court had to decide included whether the Union had a valid reason for the delay in lodging the application and whether the delay would cause injustice if the application was not granted.

The court considered the arguments presented by both parties and examined the circumstances surrounding the delay. The court found that the Union had a valid reason for the delay, as it was due to unforeseen circumstances that were beyond their control. The court also found that the delay would cause injustice if the application was not granted, as it would result in the loss of a significant opportunity for the Union to participate in the proceedings. The court therefore granted the application and extended the 30-day period.

The court's decision was based on the specific circumstances of the case and the principles of fairness and justice. The court recognised that delays can occur for a variety of reasons and that it is important to consider the individual circumstances of each case. The court also emphasised the importance of ensuring that proceedings are conducted in a fair and just manner, and that opportunities for parties to participate in the proceedings are not lost due to avoidable delays. The final orders of the court included an extension of the 30-day period and a direction for the parties to proceed with the proceedings in accordance with the extended timeframe.

Construction, Forestry, Maritime, Mining and Energy Union v Etex Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established