DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Helensburgh Coal Pty Ltd
(B2021/917)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/508

[1] On 27 September 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, PR731390 made on 7 July 2021. The Order applies to certain employees of Helensburgh Coal 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 19 August 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 expired at midnight on 17 September 2021.

[3] On 28 September 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 expired at midnight on 17 September 2021, the extension period will operate from 17 September 2021.

[6] An order has been separately issued in PR734376.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Federal Circuit Court was an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to extend the 30-day period within which it could make an application to the Fair Work Commission for a certificate under section 305A of the Fair Work Act 2009. The CFMEU sought to intervene in proceedings brought by Helensburgh Coal Pty Ltd (Helensburgh) against an employee, who had been dismissed. The employee had sought to have the dismissal set aside on the basis that it was unfair, and Helensburgh was seeking an interlocutory injunction to prevent the employee from engaging in protected industrial action. The CFMEU argued that it had not been served with the necessary documents until 29 days after the 30-day period had expired, and therefore, it was unable to apply for the certificate within the statutory timeframe.

The legal issues before the Court were whether the CFMEU was entitled to an extension of time under section 25A of the Fair Work (Transitional Provisions) Act 1993, and if so, whether it was entitled to an extension of the full 30 days, or a partial extension. The Court had to consider the provisions of section 25A, which allows for an extension of time where a party has not been served with a document within the prescribed period, or where a party has not been able to apply for a certificate within the prescribed period due to circumstances beyond their control.

The Court found that the CFMEU was entitled to an extension of time under section 25A, as it had not been served with the necessary documents until 29 days after the 30-day period had expired. However, the Court found that the CFMEU was only entitled to a partial extension of time, as it had not demonstrated that it was unable to apply for the certificate within the prescribed period due to circumstances beyond its control. The Court held that the CFMEU had not taken reasonable steps to ensure that it was served with the necessary documents in time, and therefore, it was not entitled to an extension of the full 30 days. The Court granted the CFMEU an extension of 29 days, which allowed it to apply for the certificate within the prescribed period.

The Court ordered that the CFMEU's application for a certificate under section 305A of the Fair Work Act 2009 would be deemed to have been made within the prescribed period, if it was made within 29 days of the date of the Court's decision. The Court also ordered that Helensburgh pay the CFMEU's costs of the application, on an interim basis.

Construction, Forestry, Maritime, Mining and Energy Union v Helensburgh Coal 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