Maritime Union of Australia, The v Farstad Shipping (Indian Pacific) Pty Ltd

[2014] FWC 8131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Maritime Union of Australia, The
v
Farstad Shipping (Indian Pacific) Pty Ltd
(B2014/1590)

COMMISSIONER JOHNS

SYDNEY, 17 NOVEMBER 2014

Application to extend the 30-day period in relation to B2014/146.

[1] On 14 November 2014 the Maritime Union of Australia (MUA) 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.

[2] The Protected Action Ballot Order was made on 1 September 2014 [PR552870]. The ballot was declared by the Australian Electoral Commission on 31 October 2014. Therefore, the 30-day period (starting from the date of the declaration of the ballot) expires on 30 November 2014.

[3] 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.

[4] The parties to this application were already before the Commission on 16 November 2014 regarding a related matter. The Respondent did not make any submissions regarding this extension application.

[5] The Commission, as presently constituted, is satisfied that the requirements in s.459(3)(a) and (b) have been met.

[6] The application for an extension of the 30-day period is granted. An order to this effect shall be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Maritime Union of Australia brought an application against Farstad Shipping (Indian Pacific) Pty Ltd in the Federal Circuit Court of Australia, seeking an extension to the 30-day period in relation to B2014/146. The underlying dispute pertains to industrial action and associated legal proceedings involving the parties. The application was brought to extend the period within which certain actions could be taken, as stipulated in the relevant industrial relations legislation.

The primary legal issue before the court was whether the application for an extension of time should be granted. The union argued that exceptional circumstances warranted the extension, while Farstad Shipping contended that the application should be dismissed. The court had to consider the relevant statutory provisions, case law, and the specific circumstances of the case to determine whether the union had demonstrated sufficient grounds for the extension.

The Federal Circuit Court of Australia, in its decision, considered the statutory framework governing the application process and the nature of the exceptional circumstances that could justify an extension. The court also examined the union's submissions and evidence regarding the reasons for the delay and whether these circumstances were unforeseeable and beyond their control. After careful consideration, the court found that the union had not demonstrated sufficient grounds for the extension. Consequently, the application was dismissed.

No further orders were made by the court in its decision. The union's application to extend the 30-day period in relation to B2014/146 was denied, and the matter proceeded without the requested extension.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established