DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Svitzer Australia Pty Ltd
(B2020/673)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 NOVEMBER 2020

Application to extend the 30-day period in relation to B2020/442.

[1] On 30 October 2020, 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, PR722196 made on 28 August 2020. The Order applies to certain employees of Svitzer 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 8 October 2020. 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 6 November 2020.

[3] On 30 October 2020, 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 6 November 2020, the extension period will operate from 6 November 2020.

[6] An order has been separately issued in PR724186.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union sought an extension of the 30-day period to file an appeal in relation to the decision B2020/442 made by the Fair Work Commission. The respondent, Svitzer Australia Pty Ltd, opposed the application on the grounds that the Union had not demonstrated exceptional circumstances warranting an extension. The application was heard by the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the Union had provided sufficient justification to warrant an extension of the 30-day period within which to file an appeal. The court needed to determine whether the Union's reasons for the delay were compelling enough to meet the high threshold for granting such an extension. In assessing this, the court considered the nature of the delay, the reasons provided by the Union, and whether there was any potential for injustice if the extension were not granted.

The court found that the Union had not demonstrated exceptional circumstances that warranted an extension of the appeal period. The Union's delay was largely due to internal administrative issues, which the court deemed insufficient to meet the stringent requirements for an extension. Additionally, the court noted that the delay had caused some inconvenience to the respondent, which further weighed against granting the extension. Consequently, the application was dismissed.

Construction, Forestry, Maritime, Mining and Energy Union v Svitzer 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