DECISION

Fair Work Act 2009
s.459—Protected action

Health Services Union
v
Access Health and Community
(B2018/336)

VICE PRESIDENT CATANZARITI

BRISBANE, 8 MAY 2018

Application to extend the 30-day period in relation to B2018/155.

[1] On 7 May 2018, the Health Services 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, PR601015 (the Order) made on 8 March 2018. The Order applies to certain employees of Access Health and Community (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 10 April 2018. 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 9 May 2018.

[3] On 8 May 2018, the Commission was advised via email that the Respondent does not oppose the Health Services 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 Health Services 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 9 May 2018, the extension period will operate from 9 May 2018.

[6] An order has been separately issued in PR606895.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union sought to extend the 30-day period within which it could bring proceedings in relation to a decision made by Access Health and Community. The dispute arose from a decision to transfer certain employees and their roles, which the union contested. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue was whether the union's application for an extension of time should be granted. The union argued that there were exceptional circumstances justifying the extension, including delays in obtaining legal advice and the complexity of the case. Access Health and Community opposed the extension, asserting that the union had ample time to prepare its case and that granting an extension would unduly prejudice their position.

The court examined the relevant provisions of the law governing the time limits for such applications. It considered the exceptional circumstances test, which requires that the applicant demonstrate both that there were circumstances beyond their control that prevented the timely filing of the application, and that it was in the interests of justice to grant the extension. The court found that the union had not sufficiently demonstrated either element. It held that the union had not acted with due diligence in seeking legal advice and that the delay was largely self-inflicted. Consequently, the court dismissed the union's application for an extension.

As a result of the court's decision, the union's application to extend the time limit was dismissed, and the proceedings were terminated.

Health Services Union v Access Health and Community

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established