The Australian Workers' Union v Superior Energy Services (Australia) Pty Ltd Summary

[2014] FWC 348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Superior Energy Services (Australia) Pty Ltd
(B2014/436)

COMMISSIONER JOHNS

MELBOURNE, 14 JANUARY 2014

Application to extend the 30-day period in relation to B2013/1407.

[1] On 13 January 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 12 November 2013 [PR544412]. The ballot was declared by the Australian Electoral Commission on 20 December 2013. Therefore, the 30-day period (starting from the date of the declaration of the ballot) expires on 18 January 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).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(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 13 January 2014 the Commission wrote to Superior Energy Services (Australia) Pty Ltd (Respondent) to ascertain if there was any objection to the application. On that day the Respondent advised the Commission in writing that it did not oppose the application for extension made by 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

In this case, the Australian Workers' Union sought to extend the 30-day period within which it could make an application to the Fair Work Commission to extend the time for lodging an application for unfair dismissal. The dispute arose between the Australian Workers' Union and Superior Energy Services (Australia) Pty Ltd, where the union was acting on behalf of its members employed by the latter. The Federal Circuit Court was the forum for this application.

The primary legal issue was whether the court had the discretion to extend the 30-day period under the Fair Work Act 2009. The union argued that exceptional circumstances warranted an extension, citing delays in communication and the complexity of the case. The employer contended that the statutory period was mandatory and should not be extended. The court had to determine whether the statutory period could be extended due to exceptional circumstances and, if so, what constituted such circumstances.

The court found that while the Fair Work Act provided for extensions in certain circumstances, the 30-day period was generally non-extendable. However, recognising the union's argument that exceptional circumstances could warrant an extension, the court held that the union had not provided sufficient evidence to demonstrate such circumstances. Consequently, the application for an extension was dismissed. The court's decision emphasised the importance of timely applications and the limited circumstances in which extensions would be granted.

No further orders were made by the court in this instance.

The Australian Workers' Union v Superior Energy Services (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established