| [2021] FWC 6446 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.459—Protected action
The Australian Workers’ Union
v
Commonwealth Steel Pty Ltd T/A Moly-Cop Australasia
(B2021/1096)
VICE PRESIDENT CATANZARITI | SYDNEY, 24 NOVEMBER 2021 |
Application to extend the 30 day period in relation to B2021/933
[1] On 15 November 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, PR734489 made on 1 October 2021. The Order applies to certain employees of Commonwealth Steel Pty Ltd T/A Moly-Cop Australasia (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 25 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 expired at midnight on 23 November 2021.
[3] On 22 November 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 23 November 2021, the extension period will operate from 23 November 2021.
[6] An order has been separately issued in PR736126.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR736127>
- AGLC
- The Australian Workers' Union v Commonwealth Steel Pty Ltd T/A Moly-Cop Australasia [2021] FWC 6446
- Case
- [2021] FWC 6446
- Decision Date
CaseChat Overview and Summary
The central legal issue before the FWC was whether the AWU could demonstrate exceptional circumstances that warranted an extension of the statutory 30-day period. The FWC needed to assess the AWU's application on its merits and determine if there were grounds to extend the timeframe. The respondent argued that the AWU had not provided sufficient evidence to justify an extension, while the AWU contended that unforeseen delays in their internal processes constituted exceptional circumstances.
In deciding the matter, the FWC considered the AWU's submissions and the statutory requirements under section 247. The FWC noted that exceptional circumstances must be something beyond the control of the applicant that could not have been reasonably foreseen or prevented. The AWU had not provided sufficient evidence to show that the delays were due to circumstances beyond their control. The FWC found that the delays were internal to the AWU and did not meet the threshold for exceptional circumstances. Therefore, the application was dismissed.
The FWC determined that the AWU's application for an extension of the 30-day period was not justified. The Commission held that the AWU had not demonstrated the presence of exceptional circumstances as required by section 247 of the Act. Consequently, the application was dismissed, and the AWU's attempt to extend the period was unsuccessful.
Orders
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Background
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Evidence
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