DECISION

Fair Work Act 2009
s.459—Protected action

National Tertiary Education Industry Union
v
University of Canberra
(B2018/1031)

VICE PRESIDENT CATANZARITI

DARWIN, 8 NOVEMBER 2018

Application to extend the 30-day period in relation to B2018/845.

[1] On 7 November 2018, the National Tertiary Education Industry 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, PR700589 (the Order) made on 21 September 2018. The Order applies to certain employees of University of Canberra (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 9 October 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 expired at midnight on 7 November 2018.

[3] On 8 November 2018, the Respondent advised the Commission via email that it does not oppose the National Tertiary Education Industry 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 National Tertiary Education Industry 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 expired at midnight on 7 November, the extension period will operate from 7 November 2018.

[6] An order has been separately issued in PR702146.

VICE PRESIDENT

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CaseChat Overview and Summary

The National Tertiary Education Industry Union (NTEU) applied to the Fair Work Commission (FWC) for an extension of the 30-day period within which to seek review of a decision made by the University of Canberra. The university had taken disciplinary action against an employee, and the NTEU sought to challenge this decision. The FWC was tasked with determining whether the 30-day statutory period for seeking review should be extended.

The primary legal issue before the FWC was whether the NTEU had demonstrated sufficient grounds to warrant an extension of the 30-day period under section 347(2)(c) of the Fair Work Act 2009. The FWC had to consider the NTEU's reasons for the delay in seeking review and whether these reasons were satisfactory. The union argued that the delay was due to its efforts to resolve the matter internally and its belief that the university might reconsider its decision.

In evaluating the application, the FWC considered the NTEU's explanation for the delay and the merits of the application. The FWC noted that the union had acted promptly once it became apparent that internal resolution was not possible. The FWC also took into account the university's stance on the disciplinary action and whether there were any exceptional circumstances that justified an extension. Ultimately, the FWC determined that the NTEU's reasons for the delay were reasonable and that the application for an extension should be granted.

The FWC ordered that the 30-day period for seeking review of the university's decision be extended. This allowed the NTEU to proceed with its review application, providing an opportunity to challenge the university's disciplinary action. The decision underscores the FWC's discretion in considering applications for extensions under the Fair Work Act, balancing the need for timely resolution of disputes with the circumstances that may cause delays.

National Tertiary Education Industry Union v University of Canberra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established