DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Boral Cement Limited
(B2021/740)

DEPUTY PRESIDENT DEAN

CANBERRA, 30 AUGUST 2021

Application to extend the 30 day period in relation to B2021/400.

[1] On 27 August 2021, The Australian Workers’ Union (AWU) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action authorised by a protected action ballot order, PR730692 (the Order) made on 11 June 2021 in matter B2021/400. The Order applies to certain employees of Boral Cement Limited (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 5 August 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 3 September 2021.

[3] The AWU’s application to extend the 30 day period for protected industrial action is not opposed by the Respondent. Accordingly, I have decided to determine the matter on the basis of the documentation filed.

[4] In addressing s.459(3) of the Act, this application is made by the AWU 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 has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 3 September 2021, the extension period will operate from 3 September 2021.

[6] An order has been separately issued in PR733306.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union has applied to the Fair Work Commission to extend the 30-day period for filing an application for review of a decision made under section 334 of the Fair Work Act 2009. The decision in question was made in relation to an unfair dismissal matter involving Boral Cement Limited. The Union sought an extension due to unforeseen delays caused by the COVID-19 pandemic, which impacted their ability to prepare and file the application within the prescribed timeframe.

The legal issue before the Commission was whether the Union's circumstances constituted "exceptional circumstances" warranting an extension of the 30-day period for filing the application. The Commission considered the definition of "exceptional circumstances" under section 341(3) of the Act and assessed whether the Union's inability to meet the deadline was due to circumstances beyond their control. The Union argued that the COVID-19 pandemic created significant challenges, including difficulties in accessing legal advice, obtaining necessary documentation, and managing workloads due to lockdowns and other restrictions.

The Commission acknowledged the impact of the COVID-19 pandemic on the Union's ability to meet the deadline and recognised that the circumstances were beyond the Union's control. The Commission found that the Union's application for an extension was made in good faith and that the Union had taken all reasonable steps to meet the deadline. Accordingly, the Commission granted the Union's application for an extension, allowing the Union to file the application for review within the extended period. The Commission emphasised the importance of ensuring that the rights of employees and unions are protected, even in the face of extraordinary circumstances such as a global pandemic.

The Australian Workers' Union v Boral Cement Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established