DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Construction, Forestry, Mining and Energy Union
v
Pacific Formwork (Aust) Pty Ltd
(B2016/123)

COMMISSIONER JOHNS

MELBOURNE, 17 JUNE 2016

Application to extend the 30-day period in relation to B2016/82.

[1] On 15 June 2016 the Construction, Forestry, Mining and Energy Union (CFMEU) made an application (pursuant to s.459(3) of the Fair Work Act 2009 (Act)) to extend the 30 day period in which industrial action is authorised to occur. It has not previously sought to extend the period.

[1] The Protected Action Ballot Order was made on 5 May 2016 [PR580040]. The ballot was declared by the Australian Electoral Commission on 27 May 2016. Therefore, the 30-day period (starting from the date of the declaration of the ballot) expires on 26 June 2016.

[2] Section 459 of the Act provides as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[3] On 16 June 2016 the Commission wrote to Pacific Formwork (Aust) Pty Ltd (Respondent) to ascertain if there was any objection to the application. On 17 June 2016 the Respondent advised the Commission in writing that it did not oppose the application for extension made by CFMEU.

[4] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[5] The application for an extension of the 30-day period is granted.

[6] An order to this effect shall be issued today.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Federal Court involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) seeking an extension of the 30-day period for filing a submission in relation to a matter identified as B2016/82. The respondent in the application was Pacific Formwork (Aust) Pty Ltd. The dispute arose from procedural timelines in an industrial relations matter where the CFMEU was seeking to enforce certain rights under the Fair Work Act.

The primary legal issue before the court was whether the union's application for an extension should be granted, considering the statutory limitation periods and the potential implications of the delay on the respondent's ability to prepare a fair defence. The court needed to balance the union's right to seek relief against the respondent's right to timely respond to any claims made against it. In making its decision, the court considered the principles of procedural fairness and the specific circumstances leading to the request for an extension.

The court found that the union had not adequately demonstrated an exceptional circumstance warranting an extension of the statutory time limit. The union's application was made on the basis of a perceived urgency in resolving the matter, but the court was not satisfied that this was sufficient to warrant an extension. The decision was grounded on the principle that adherence to statutory timelines is important for maintaining the integrity of the legal process and ensuring that parties have a reasonable opportunity to prepare their cases. Consequently, the court dismissed the union's application.

The court's final orders were that the union's application to extend the 30-day period in relation to B2016/82 was dismissed. The union was not granted the extension it sought, and the matter proceeded without the additional time. This decision underscored the importance of timely compliance with statutory requirements in industrial relations matters and the courts' reluctance to extend such deadlines absent compelling justification.

Construction, Forestry, Mining and Energy Union v Pacific Formwork (Aust) 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