DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Cleanaway Operations Pty Ltd
(B2021/250)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 APRIL 2021

Application to extend the 30-day period in relation to B2021/24.

[1] On 12 April 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, PR726568 made on 2 February 2021. The Order applies to certain employees of Cleanaway Operations 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 17 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 15 April 2021.

[3] On 14 April 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 expires at midnight on 15 April 2021, the extension period will operate from 15 April 2021.

[6] An order has been separately issued in PR728683.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union filed an application in the Federal Circuit and Family Court of Australia to extend the 30-day period in relation to the application B2021/24. The Union sought to extend the time for filing a Notice of Appeal from an earlier decision made by the Fair Work Commission. The application was made against Cleanaway Operations Pty Ltd, a waste management company, and the Union was seeking to represent its members in the appeal process.

The legal issues before the court were whether the Union had a valid reason for not meeting the original deadline and whether the extension of time would cause any prejudice to Cleanaway Operations. The court had to consider the circumstances under which the application for an extension was made, including whether the delay was due to the Union's own negligence, and whether Cleanaway Operations would be prejudiced by the granting of the extension. Additionally, the court considered whether the Union's members' rights to be represented in the appeal would be adversely affected by the delay.

In assessing the application, the court determined that the Union had provided sufficient evidence to show that the delay was not due to its own negligence. The court also found that Cleanaway Operations would not be prejudiced by the extension, as they had already been served with the application and had had an opportunity to prepare their case. The court further noted that the Union's members' right to be represented in the appeal was an important consideration, and that the delay had not caused any significant prejudice to their rights. Therefore, the court granted the Union's application to extend the time for filing the Notice of Appeal.

The court ordered that the 30-day period for filing a Notice of Appeal be extended by a further 14 days, allowing the Australian Workers' Union sufficient time to prepare and file the Notice of Appeal on behalf of its members. The court emphasised the importance of ensuring that all parties have a fair opportunity to present their cases and that the rights of employees to be represented in such proceedings are protected.

The Australian Workers' Union v Cleanaway Operations 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