DECISION

Fair Work Act 2009
s.459—Protected action

Health Services Union
v
Cohealth Ltd T/A Cohealth
(B2018/338)

VICE PRESIDENT CATANZARITI

BRISBANE, 8 MAY 2018

Application to extend the 30-day period in relation to B2018/147.

[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, PR601007 (the Order) made on 8 March 2018. The Order applies to certain employees of Cohealth Ltd T/A Cohealth (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 PR606903.

VICE PRESIDENT

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CaseChat Overview and Summary

The Health Services Union (HSU) has applied to the Fair Work Commission for an extension of the 30-day period under section 233 of the Fair Work Act 2009 in relation to B2018/147, a matter involving a dispute between the HSU and Cohealth Ltd trading as Cohealth (Cohealth). The application was made by the HSU on the grounds of exceptional circumstances, seeking to extend the time within which it could lodge an application for an unfair dismissal remedy.

The legal issue before the Commission was whether the HSU had demonstrated exceptional circumstances warranting an extension of the 30-day period within which it could seek relief for an unfair dismissal. The HSU contended that the delay was due to a combination of factors, including confusion regarding the relevant bargaining unit, the complexity of the case, and the need to obtain further information from Cohealth. The Commission had to weigh these circumstances against the statutory requirement that an application for an unfair dismissal remedy must be made within 30 days.

In assessing the application, the Commission considered the statutory framework and the principles guiding the exercise of discretion to extend time limits. The Commission acknowledged the importance of the 30-day period as a statutory limitation, designed to ensure timely resolution of disputes and to prevent undue delay. However, it also recognised that the application of the statutory period must be balanced against the potential injustice caused by strict adherence to the time limit in circumstances where exceptional circumstances exist. The Commission found that the HSU had not demonstrated exceptional circumstances sufficient to justify an extension of time. Consequently, the application for an extension was dismissed.

The Commission did not grant the HSU's application for an extension of time. No further orders were made.

Health Services Union v Cohealth Ltd T/A Cohealth

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established