Health Services Union v IPC Health Ltd T/A IPC Health

[2018] FWC 2568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Health Services Union

IPC Health Ltd T/A IPC Health

(B2018/339)

Vice President Catanzariti

BRISBANE, 8 MAY 2018

Application to extend the 30-day period in relation to B2018/154.

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, PR601010 (the Order) made on 8 March 2018. The Order applies to certain employees of IPC Health Ltd T/A IPC Health (the Respondent).

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.

On 7 May 2018, the Respondent advised the Commission via email that it 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.

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.

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.

An order has been separately issued in PR606891.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union, acting on behalf of its members, made an application to the Federal Circuit and Family Court of Australia to extend the 30-day period for filing an application for review of a decision made by IPC Health Ltd T/A IPC Health. IPC Health had previously been involved in a dispute with the Union, which was brought to the Fair Work Commission (FWC). The Union was seeking to appeal a decision of the FWC within the stipulated 30-day period, but encountered difficulties that delayed its application. IPC Health opposed the Union's application to extend the time limit.

The primary legal issue before the court was whether the Union's application for an extension of time to file its application for review of the FWC decision should be granted. This involved determining whether the Union's delay was reasonable and whether any prejudice would result to IPC Health if the extension was granted. The court had to consider the principles of equity, the importance of the timely resolution of such disputes, and the potential consequences of allowing a delay in the judicial process.

The court found that the Union had demonstrated sufficient grounds for its delay in filing the application for review and that the extension of time should be granted. The court considered that the Union had acted promptly once it became aware of the need to file the application, and that there was no evidence of any prejudice to IPC Health if the extension was allowed. The court also noted the importance of ensuring that the rights of the parties were not unfairly prejudiced and that justice was served by allowing the Union to proceed with its application for review. The court was satisfied that granting the extension was the fair and just outcome in the circumstances.

Accordingly, the court granted the Union's application to extend the time limit for filing its application for review of the FWC decision. The Union was permitted to file its application for review within the extended timeframe, and the matter was to proceed accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established