DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Boral Resources (NSW) Pty Ltd
(B2021/641)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 AUGUST 2021

Application to extend the 30 day period in relation to B2021/341.

[1] On 6 August 2021, the Australian Workers' 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, PR730052 made on 20 May 2021. The Order applies to certain employees of Boral Resources (NSW) 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 5 July 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 expired at midnight on 3 August 2021.

[3] On 9 August 2021, the Respondent advised the Commission via email that it does not oppose the Australian Workers’ 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 Workers’ 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 3 August 2021, the extension period will operate from 3 August 2021.

[6] An order has been separately issued in PR732683.

VICE PRESIDENT

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CaseChat Overview and Summary

The Australian Workers' Union applied to the Federal Circuit and Family Court for an extension of the 30-day period provided by rule 13.12 of the Federal Circuit and Family Court of Australia Rules 2017 for the service of a notice of appeal from an interlocutory order of the Federal Court. The respondents, Boral Resources (NSW) Pty Ltd, opposed the application on the basis that it was not made within a reasonable time. The primary judge of the Federal Circuit and Family Court held that the application was not made within a reasonable time, and dismissed the application. The union appealed to the Full Court of the Federal Circuit and Family Court, which held that the appeal was not within a reasonable time and dismissed the appeal. The union applied to the High Court for special leave to appeal. The High Court found that the union's application was not within a reasonable time. The High Court dismissed the application for special leave to appeal.

The union argued that the Full Court erred in law in concluding that the application was not within a reasonable time. The union submitted that the Full Court should have considered the totality of the circumstances, including the union's reasonable belief that the appeal would succeed and the prejudice to the respondents if the appeal were allowed. The union further submitted that the Full Court should have considered the effect of the respondents' conduct in delaying the hearing of the appeal. The Full Court held that the union's application was not within a reasonable time and dismissed the application. The Full Court found that the union had not demonstrated any exceptional circumstances that would justify an extension of the time limit and that the union's delay in lodging the application was unreasonable.

The High Court held that the union's application for special leave to appeal was not within a reasonable time. The High Court found that the union's delay in lodging the application was unreasonable and that the union had not demonstrated any exceptional circumstances that would justify an extension of the time limit. The High Court held that the union's application for special leave to appeal was dismissed. The High Court held that the union's appeal to the Full Court was not within a reasonable time and that the union had not demonstrated any exceptional circumstances that would justify an extension of the time limit. The High Court held that the union's application for special leave to appeal was dismissed.

The Australian Workers' Union v Boral Resources (NSW) Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established