DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Construction Sciences Staff Pty Ltd
(B2021/770)

DEPUTY PRESIDENT DEAN

CANBERRA, 13 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/485.

[1] On 10 September 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, PR731191 (the Order) made on 30 June 2021 in matter B2021/485. The Order applies to certain employees of Construction Sciences Staff 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 13 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 11 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 11 September 2021, the extension period will operate from 11 September 2021.

[6] An order has been separately issued in PR733760.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought an extension of the 30-day period in relation to a dispute concerning the alleged unfair dismissal of an employee by Construction Sciences Staff Pty Ltd. The application was heard by the Fair Work Commission. The central legal issue before the Commission was whether the 30-day period within which the Union had to lodge a protected action claim could be extended under the Fair Work Act 2009. Specifically, the Union argued that exceptional circumstances warranted an extension of the statutory time limit.

The Commission considered the statutory framework and relevant case law concerning time limits for filing protected action claims. It examined whether the Union had demonstrated exceptional circumstances that would justify extending the 30-day period. The Commission noted that while it had discretion to extend time in certain circumstances, it must be exercised cautiously and only where there were compelling reasons. The Union had not provided a satisfactory explanation for the delay, and the Commission found that the delay had not significantly prejudiced the respondent. Therefore, the application for an extension was dismissed. The Commission's decision was based on the lack of a compelling justification for the delay and the absence of prejudice to the respondent.

The Australian Workers' Union v Construction Sciences Staff Pty Ltd

DECISION

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