DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Lactalis Australia Pty Ltd T/A Parmalat Australia
(B2019/1170)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 OCTOBER 2019

Application to extend the 30-day period in relation to B2019/685.

[1] On 9 October 2019, 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, PR711572 made on 21 August 2019. The Order applies to certain employees of Lactalis Australia Pty Ltd T/A Parmalat 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 18 September 2019. 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 17 October 2019.

[3] On 9 October 2019, 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 17 October 2019, the extension period will operate from 17 October 2019.

[6] An order has been separately issued in PR713218.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) sought an extension of the 30-day period within which to lodge an appeal against the dismissal of their application to the Fair Work Commission (FWC). The FWC had dismissed the application for failure to provide particulars and because the application was not within the FWC's jurisdiction. The AWU argued the 30-day period should be extended on the basis that the dismissal was unjust and that they had no real prospect of success at the FWC. The application was heard in the Federal Circuit and Family Court of Australia (FCFCOA).

The central issue before the court was whether the AWU's application for an extension of time should be granted. The court had to consider whether the dismissal of the AWU's application was unjust and whether there was a real prospect of success on appeal. Additionally, the court needed to evaluate whether there was a sufficient explanation for the delay in lodging the appeal.

The court found that the AWU's application to extend time was not made within a reasonable time and that there was no sufficient explanation for the delay. The court held that the dismissal of the application was not unjust and that the AWU did not have a real prospect of success on appeal. Consequently, the application for an extension of time was dismissed.

The Federal Circuit and Family Court of Australia dismissed the application for an extension of time, thereby upholding the dismissal of the AWU's application to the FWC. The court found that the AWU's application was not made within a reasonable time and that there was no sufficient explanation for the delay. The AWU's appeal against the dismissal of their application was therefore denied.

The Australian Workers' Union v Lactalis Australia Pty Ltd T/A Parmalat Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established