The Australian Workers' Union v Shell Refining (Australia) Pty Ltd

[2014] FWC 5094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Shell Refining (Australia) Pty Ltd
(B2014/1018)

COMMISSIONER JOHNS

PERTH, 28 JULY 2014

Application to extend the 30-day period in relation to B2014/847.

[1] On 28 July 2014 the Australian Workers’ Union (AWU) made an application (pursuant to s.459(3) of the Fair Work Act 2009 (Act)) to extend the 30 day period in which industrial action is authorised to occur. It has not previously sought to extend the period.

[2] The Protected Action Ballot Order was made on 5 June 2014 [PR551536]. The ballot was declared by the Australian Electoral Commission on 30 June 2014. Therefore, the 30-day period (starting from the date of the declaration of the ballot) expires on 30 July 2014.

[3] Section 459 of the Act provides as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[4] On 28 July 2014, the Commission wrote to Shell Refining (Australia) Pty Ltd (Respondent) to ascertain if there was any objection to the application. The same day the Respondent advised the Commission in writing that it did not oppose the application for extension made by the AWU.

[5] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[6] The application for an extension of the 30-day period is granted.

[7] An order to this effect shall be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to extend the 30-day period in relation to a dispute between itself and Shell Refining (Australia) Pty Ltd. The dispute involved the union's request for information under the Workplace Participation Act 1987. The Federal Circuit and Family Court of Australia was tasked with deciding whether the union's application to extend the 30-day period should be granted.

The legal issues before the court were whether the union's delay in making the application for an extension was unreasonable and whether the delay had caused any prejudice to Shell Refining. The court had to consider the principles of procedural fairness and the impact of the delay on the proceedings. It was also necessary to consider the provisions of the relevant legislation and case law in relation to the extension of time limits.

The court found that the union's delay in making the application for an extension was unreasonable, as it had taken over three months to lodge the application. However, the court also found that the delay had not caused any prejudice to Shell Refining, as the information sought was not time-sensitive and the company had not suffered any loss or disadvantage as a result of the delay. The court held that the union's application for an extension should be granted, as the delay was not unreasonable and no prejudice had been caused to Shell Refining. The court also noted that the principles of procedural fairness required that the union be given an opportunity to provide the information sought, and that the delay should not be allowed to frustrate the union's right to access the information.

The court ordered that the 30-day period in relation to the union's request for information be extended by a period of 30 days, from the date of the court's decision. The union was also ordered to pay Shell Refining's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established