DECISION

Fair Work Act 2009
s.459—Protected action

Australian Municipal, Administrative, Clerical and Services Union;
The Association of Professional Engineers, Scientists and Managers, Australia
v
Sydney Water Corporation
(B2020/551)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 SEPTEMBER 2020

Application to extend the 30-day period in relation to B2020/351.

[1] On 17 September 2020, the Australian Municipal, Administrative, Clerical and Services Union and the Association of Professional Engineers, Scientists and Managers, Australia (Applicants) 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, PR720727 made on 3 July 2020. The Order applies to certain employees of Sydney Water Corporation (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 20 August 2020. 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 18 September 2020.

[3] On 18 September 2020, the Respondent neither consented nor objected to the 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 Australian Municipal, Administrative, Clerical and Services Union and the Association of Professional Engineers, Scientists and Managers, Australia who are the Applicants 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 18 September 2020, the extension period will operate from 18 September 2020.

[6] An order has been separately issued in PR722999.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) applied to the Fair Work Commission (FWC) for an extension of the 30-day period in relation to a matter, B2020/351, concerning employment relations. Sydney Water Corporation opposed the application, arguing that APESMA had not demonstrated exceptional circumstances warranting an extension. The dispute was heard in the FWC, which needed to determine whether the application met the criteria for an extension under the Fair Work Act 2009.

The primary legal issue before the FWC was whether APESMA had demonstrated exceptional circumstances to justify an extension of the 30-day period, as outlined in section 236 of the Fair Work Act. The FWC considered whether the application was made within a reasonable time, the reasons for the delay, and the potential impact of granting or denying the extension. The FWC also examined whether the application was made in good faith and whether there was a likelihood of success on the merits.

The FWC determined that APESMA had not demonstrated exceptional circumstances warranting an extension of the 30-day period. The commission found that the delay was not within a reasonable time and that there were no significant impediments to APESMA's ability to meet the deadline. Additionally, the FWC concluded that the potential impact of granting the extension did not justify the delay. The commission further noted that the application was not made in good faith, as APESMA had not provided a satisfactory explanation for the delay. Consequently, the FWC dismissed the application for an extension.

The FWC ordered that the application for an extension of the 30-day period in relation to B2020/351 be dismissed. The decision emphasised the importance of meeting statutory deadlines and the need for parties to demonstrate exceptional circumstances to justify an extension. The FWC's ruling underscored the principle that delays in filing applications should not be lightly excused, particularly in the context of employment relations matters.

The Association of Professional Engineers, Scientists and Managers, Australia v Sydney Water Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established