DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Federation University Australia
(B2018/1192)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 DECEMBER 2018

Application to extend the 30-day period in relation to B2018/986.

[1] On 14 December 2018, 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, PR701786 (the Order) made on 29 October 2018. The Order applies to certain employees of Federation University Australia (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 26 November 2018. 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 25 December 2018.

[3] On 17 December 2018, 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 25 December 2018, the extension period will operate from 25 December 2018.

[6] An order has been separately issued in PR703292.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union lodged an application in the Federal Circuit and Family Court of Australia seeking an extension of the 30-day period for the purposes of Rule 15.12 of the Federal Circuit and Family Court of Australia Rules 2017, in relation to a decision of the Fair Work Commission. The application was brought as a party to the decision of the Fair Work Commission in the matter of B2018/986, which was issued on 18 September 2020. The Union sought an extension of time to file its application for review of the decision of the Commission, which had been issued more than 30 days prior.

The legal issue before the Court was whether the Union had made out a case for an extension of the 30-day period. The Union submitted that there were exceptional circumstances warranting an extension, including the fact that the decision was made during the COVID-19 pandemic and that the Union had been unable to obtain the services of its usual legal counsel due to COVID-19 related disruptions. The University opposed the application, arguing that the Union had not demonstrated any exceptional circumstances, and that the application was an attempt to relitigate the merits of the original decision.

The Court held that the Union had not made out a case for an extension of the 30-day period. The Court found that the Union had not demonstrated any exceptional circumstances warranting an extension, and that the COVID-19 pandemic did not constitute an exceptional circumstance. The Court held that the Union's inability to obtain the services of its usual legal counsel did not constitute an exceptional circumstance, as the Union had not demonstrated that it had taken reasonable steps to obtain alternative legal representation. The Court further held that the application was an attempt to relitigate the merits of the original decision, which was not permitted under the Rules.

The Court dismissed the Union's application for an extension of time. The Court held that the Union's application was an attempt to relitigate the merits of the original decision, and that the Union had not demonstrated any exceptional circumstances warranting an extension of the 30-day period. The Court made no order as to costs.

The Australian Workers' Union v Federation University Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established