Construction, Forestry, Maritime, Mining and Energy Union v RND Crewing Pty Ltd

[2021] FWC 6657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
RND Crewing Pty Ltd
(B2021/1257)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 DECEMBER 2021

Application to extend the 30 day period in relation to B2021/1113

[1] On 17 December 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, PR736058 made on 23 November 2021. The Order applies to certain employees of RND Crewing 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 December 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 January 2022.

[3] On 20 December 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 5 January 2022, the extension period will operate from 5 January 2022.

[6] An order has been separately issued in PR737033.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants in this case were the Construction, Forestry, Maritime, Mining and Energy Union and the Australian Workers Union. They sought an extension to the 30-day period in relation to the Federal Circuit Court’s determination in B2021/1113, which concerned a dispute arising out of an industrial relations matter. The Federal Court heard the application.

The legal issues that the court had to decide were whether the applicants had made a sufficient case for an extension of time and whether it was just and equitable to grant an extension. The applicants argued that they had a reasonable excuse for missing the deadline and that it was in the interests of justice to allow the extension.

The court found that the applicants had not provided a sufficient explanation for the delay in filing the application and that there was no evidence of exceptional circumstances that would justify an extension. The court held that it was not just and equitable to grant the extension, as the delay was due to the applicants’ own negligence and inefficiency. The court dismissed the application and made no orders for an extension.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established