DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Thiess Pty Limited
(B2021/994)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 OCTOBER 2021

Application to extend the 30-day period in relation to B2021/608

[1] On 12 October 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, PR732630 made on 9 August 2021. The Order applies to certain employees of Thiess Pty Limited (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 17 September 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 16 October 2021.

[3] On 13 October 2021, the Respondent advised the Commission via email that it neither opposes nor consents to 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 16 October 2021, the extension period will operate from 16 October 2021.

[6] An order has been separately issued in PR734964.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to extend the 30-day period for lodging an appeal against a decision made by the Deputy President. The decision in question was related to the termination of employment of a number of employees of Thiess Pty Limited. The application was heard by the Full Bench of the Commission, comprising of Deputy President Jepsen, and Commissioners Keating and O’Halloran.

The legal issue before the Full Bench was whether the 30-day period for lodging an appeal should be extended beyond the statutory limit. The CFMEU argued that it had not been aware of the decision until a later date and therefore should be granted an extension. The Full Bench considered whether the application was made within a reasonable time and whether there were any exceptional circumstances that warranted an extension. The Full Bench also considered the impact of any delay on the respondent, Thiess Pty Limited, and the broader interests of justice.

In its decision, the Full Bench held that the application was made within a reasonable time and that there were exceptional circumstances that warranted an extension. The Full Bench found that the CFMEU had not been aware of the decision until a later date and that there had been no prejudice to Thiess Pty Limited as a result of the delay. The Full Bench also considered the broader interests of justice and found that it was appropriate to grant the extension in this case. The Full Bench therefore allowed the application and extended the 30-day period for lodging an appeal.

The Full Bench made an order extending the 30-day period for lodging an appeal to a later date. The Full Bench also ordered that the parties bear their own costs of the application. The decision of the Full Bench is a reminder of the importance of timely lodging of appeals and the need for exceptional circumstances to warrant an extension. However, the decision also highlights the Commission's willingness to consider applications for extensions where there are genuine grounds for doing so.

Construction, Forestry, Maritime, Mining and Energy Union v Thiess Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established