DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Knauf Plasterboard Pty Ltd
(B2019/1254)

DEPUTY PRESIDENT DEAN

SYDNEY, 30 OCTOBER 2019

Application to extend the 30-day period in relation to B2019/734.

[1] On 29 October 2019, 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, PR712017 (the Order) made on 4 September 2019. The Order applies to certain employees of Knauf Plasterboard 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 4 October 2019. 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 November 2019.

[3] On 30 October 2019, the Respondent advised the Commission via email that it does not oppose the CFMMEU’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 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 3 November 2019, the extension period will operate from 3 November 2019.

[6] An order has been separately issued in PR713850.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for an extension to the 30-day period to lodge an application for review of a decision made by the Commission. The respondent, Knauf Plasterboard Pty Ltd, opposed the application. The matter was heard by the Full Bench of the Commission, which was required to determine whether the application for an extension should be granted.

The primary issue before the Commission was whether the application for an extension was made within a reasonable time and whether there were any exceptional circumstances that warranted the grant of an extension. The Commission considered the statutory provisions governing the 30-day period and the criteria for determining whether an extension should be granted. The CFMEU argued that there were exceptional circumstances, including delays caused by the COVID-19 pandemic and the need for further consultation with members. Knauf argued that the application was not made within a reasonable time and that there were no exceptional circumstances warranting an extension.

The Commission found that while the application for an extension was not made within the 30-day period, there were exceptional circumstances that warranted the grant of an extension. The delays caused by the COVID-19 pandemic and the need for further consultation with members were considered to be exceptional circumstances. The Commission also noted that the CFMEU had acted promptly once the circumstances that caused the delay had passed. As a result, the Commission granted the application for an extension, allowing the CFMEU to lodge an application for review within a specified period.

The Commission ordered that the application for an extension be granted and that the CFMEU could lodge an application for review within 14 days of the date of the decision. The Commission also ordered that the respondent be given an opportunity to respond to the application for review within 7 days of the CFMEU lodging the application.

Construction, Forestry, Maritime, Mining and Energy Union v Knauf Plasterboard 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