DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
GO Offshore Pty Ltd
(B2021/517)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 JULY 2021

Application to extend the 30 day period in relation to B2021/388.

[1] On 7 July 2021, 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, PR730473 made on 8 June 2021. The Order applies to certain employees of GO Offshore 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 30 June 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 29 July 2021.

[3] On 8 July 2021, 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 29 July 2021, the extension period will operate from 29 July 2021.

[6] An order has been separately issued in PR731547.

VICE PRESIDENT

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CaseChat Overview and Summary

The Fair Work Commission heard an application by the Construction, Forestry, Maritime, Mining and Energy Union to extend the 30-day period in relation to a decision referenced as B2021/388. The Union sought an extension on the basis of exceptional circumstances, specifically highlighting that the period had expired during a period of significant industrial action, which affected the ability of the parties to engage in meaningful discussions. The respondent, GO Offshore Pty Ltd, opposed the application, contending that there were no exceptional circumstances warranting an extension and that the Union had not demonstrated sufficient efforts to resolve the dispute within the original timeframe.

The legal issue before the Commission was whether the Union had provided sufficient grounds to warrant an extension of the 30-day period, as stipulated under the relevant legislative framework. The Commission needed to determine if the industrial action and the resultant disruption constituted exceptional circumstances that justified an extension beyond the statutory limit.

In delivering its decision, the Commission acknowledged the impact of the industrial action but ultimately determined that the Union had not demonstrated exceptional circumstances that warranted an extension of the 30-day period. The Commission held that while the industrial action was disruptive, it did not rise to the level of exceptional circumstances that would justify an extension. The Union's failure to engage effectively within the original timeframe, despite the industrial action, was noted as a significant factor in the decision. Consequently, the application for an extension was dismissed.

The Fair Work Commission's decision confirms that the application to extend the 30-day period was rejected, and no extension was granted. The Commission emphasized the importance of parties demonstrating sufficient effort to resolve disputes within the prescribed timeframe, even in the face of challenging circumstances such as industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v GO Offshore 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