DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Orica Australia Pty Ltd
(B2021/45)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 FEBRUARY 2021

Application to extend the 30-day period in relation to B2020/729.

[1] On 3 February 2021, the Construction, Forestry, Maritime, Mining & Energy Union – Northern Mining and NSW Energy District (the CFMMEU) (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, PR724702 made on 19 November 2020. The Order applies to certain employees of Orica 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 7 January 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 5 February 2021.

[3] On 4 February 2021, 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 have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 5 February 2021, the extension period will operate from 5 February 2021.

[6] An order has been separately issued in PR726677.

VICE PRESIDENT

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to extend the 30-day period in relation to a particular case. The respondent, Orica Australia Pty Ltd, opposed the application. The Commission was tasked with determining whether the application for an extension should be granted.

The central legal issue was whether the circumstances surrounding the delay in lodging the application were sufficient to warrant an extension of the statutory 30-day period. The Commission had to consider whether the delay was due to exceptional circumstances and whether there was a reasonable prospect that the application would succeed if it were to be heard. Additionally, the Commission needed to balance the principles of procedural fairness and the importance of timeliness in legal proceedings.

In its decision, the Fair Work Commission assessed the reasons provided by the CFMEU for the delay. It found that the delay was not due to exceptional circumstances and that the CFMEU had not demonstrated a reasonable prospect of success on the merits of the application. The Commission held that the delay was not excusable under the circumstances presented. Consequently, the application for an extension was dismissed.

The Commission's final order was that the application by the CFMEU to extend the 30-day period in relation to B2020/729 was dismissed. The decision underscored the importance of adhering to statutory timelines and the need for parties to demonstrate justifiable reasons for any delay in proceedings.

Construction, Forestry, Maritime, Mining and Energy Union v Orica Australia 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