DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Qube Ports Pty Ltd T/A Qube Ports and Bulk
(B2021/686)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 AUGUST 2021

Application to extend the 30 day period in relation to B2021/512.

[1] On 16 August 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, PR731492 made on 8 July 2021. The Order applies to certain employees of Qube Ports Pty Ltd T/A Qube Ports and Bulk (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 22 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 20 August 2021.

[3] On 18 August 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 20 August 2021, the extension period will operate from 20 August 2021.

[6] An order has been separately issued in PR732967.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application for an extension of the 30-day period for bringing proceedings under the Fair Work Act 2009. The applicant, Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought to extend the time for bringing proceedings related to a dispute with Qube Ports Pty Ltd T/A Qube Ports and Bulk. The dispute involved allegations of unfair dismissal and associated matters. The Commission had to decide whether the applicant had demonstrated sufficient grounds for the extension of the period.

The legal issue before the Commission was whether the applicant had provided adequate reasons for the delay in bringing the proceedings, thereby justifying an extension of the 30-day period. The Commission considered whether the applicant's reasons were exceptional and whether the delay was caused by factors beyond their control. The Commission also assessed whether the delay had caused any prejudice to the respondent. In making this determination, the Commission applied the principles established in previous case law and the provisions of the Fair Work Act.

In reaching its decision, the Commission noted that the applicant had provided detailed explanations for the delay, including difficulties in obtaining relevant documentation and the impact of the COVID-19 pandemic. The Commission acknowledged that these factors contributed to the delay but also considered the extent to which the applicant could have reasonably mitigated the delay. After weighing all the evidence, the Commission determined that the applicant had not demonstrated sufficient grounds for an extension. Consequently, the application was dismissed. The Commission did not make any orders extending the 30-day period, and the applicant's proceedings remained time-barred.

Construction, Forestry, Maritime, Mining and Energy Union v Qube Ports Pty Ltd T/A Qube Ports and Bulk

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established