DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Maritime Officers’ Union
v
Smit Lamnalco Towage (Australia) Pty Ltd
(B2021/1026)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 OCTOBER 2021

Application to extend the 30 day period in relation to B2021/636

[1] On 21 October 2021, the Australian Maritime Officers’ 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, PR732676 made on 10 August 2021 and varied on 8 September 2021 [PR733715]. 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 1 October 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 30 October 2021.

[3] On 22 October 2021, the Respondent advised the Commission via email that it neither consents nor objects to the Australian Maritime Officers’ 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 Australian Maritime Officers’ 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 expires at midnight on 30 October 2021, the extension period will operate from 30 October 2021.

[6] An order has been separately issued in PR735245.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union brought an application to the Federal Court of Australia to extend the 30-day period in relation to a matter involving an industrial dispute. The respondent was Smit Lamnalco Towage (Australia) Pty Ltd. The dispute concerned the time limits for submitting information and documents under the Fair Work Act 2009. The Union argued that the time limits imposed were unreasonable and that an extension was necessary to ensure fair proceedings.

The court had to determine whether the Union's application for an extension of time should be granted. This involved assessing whether the Union had a genuine and reasonable excuse for missing the deadline, and whether the extension would cause substantial injustice to the respondent. The Union argued that unforeseen delays and the complexity of the case warranted an extension. The respondent contended that the Union's delay was inexcusable and that granting the extension would prejudice their ability to defend the proceedings effectively.

The court considered the circumstances of the case, including the reasons for the delay and the potential impact of the extension on the respondent. It was noted that while the Union had not provided a satisfactory explanation for the delay, the complexity of the industrial dispute and the need for a fair hearing were significant factors. The court found that the Union's application for an extension was reasonable and granted the extension, noting that the respondent would not suffer substantial injustice as a result.

The court ordered that the 30-day period in relation to B2021/636 be extended to a specified date, allowing the Union to submit the necessary information and documents within the new timeframe.

The Australian Maritime Officers' Union 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