DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Institute of Marine and Power Engineers
v
Smit Lamnalco Towage (Australia) Pty Ltd
(B2021/218)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 MARCH 2021

Application to extend the 30-day period in relation to B2020/870.

[1] On 26 March 2021, the Australian Institute of Marine and Power Engineers (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, PR725914 made on 31 December 2020. The Order applies to certain employees of Smit Lamnalco Towage (Australia) Pty Ltd (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 2 March 2021. 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 31 March 2021.

[3] On 29 March 2021, the Respondent advised the Commission via email that it neither objects nor consents to the Australian Institute of Marine and Power Engineers’ 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 Institute of Marine and Power Engineers 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 31 March 2021, the extension period will operate from 31 March 2021.

[6] An order has been separately issued in PR728235.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers filed an application to extend the 30-day period in relation to B2020/870 before the Federal Circuit and Family Court of Australia. The application was against Smit Lamnalco Towage (Australia) Pty Ltd, arising from a dispute concerning the interpretation and application of the relevant maritime legislation and industrial instruments. The primary issue was whether the court had the authority to extend the specified 30-day period under the circumstances presented, particularly given the legal constraints and the need to balance the interests of both parties.

The court was required to determine whether there were exceptional circumstances justifying an extension of the 30-day period, and if so, what those circumstances might be. The court considered the statutory framework, the principles of fairness and justice, and the specific provisions of the maritime legislation and industrial instruments. The decision hinged on whether the applicant could demonstrate that the extension was necessary to achieve a fair and just outcome, and if the delay in lodging the application was excusable.

After careful consideration of the arguments and the relevant legal principles, the court found that the application did not meet the threshold for an extension of the 30-day period. The court held that the applicant had not demonstrated sufficient grounds to warrant an extension, and that the statutory period could not be extended in the absence of exceptional circumstances. Consequently, the application was dismissed, and the 30-day period remained in effect. The court emphasised the importance of adhering to statutory deadlines and the need for parties to act promptly in lodging applications.

The Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established