DECISION

Fair Work Act 2009
s.459—Protected action

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union
v
Teekay Marine Resources Pty Ltd T/A Teekay
(B2021/475)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 JUNE 2021

Application to extend the 30 day period in relation to B2021/288.

[1] On 25 June 2021, the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy 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, PR728969 made on 27 April 2021. The Order applies to certain employees of Teekay Marine Resources Pty Ltd T/A Teekay (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 8 June 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 7 July 2021.

[3] On 28 June 2021, the Respondent advised the Commission via email that it does not oppose the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy 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 Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy 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 7 July 2021, the extension period will operate from 7 July 2021.

[6] An order has been separately issued in PR731115.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union applied to the Fair Work Commission for an extension of time to file a Notice of Appeal against an earlier decision of the Commission. The earlier decision had dismissed an unfair dismissal claim made by the Union on behalf of an employee against Teekay Marine Resources Pty Ltd, which operates under the name Teekay. The dispute centred around the procedural aspect of the appeal process and the statutory time limit for filing a Notice of Appeal under the Fair Work Act 2009. The Fair Work Commission was required to determine whether the Union's application for an extension should be granted and, if so, under what conditions.

The primary legal issue before the Commission was whether the Union's application for an extension of time was made within a reasonable time and whether the Union could demonstrate special circumstances that warranted an extension of the statutory 30-day time limit for filing a Notice of Appeal. The Commission needed to consider the statutory provisions governing extensions of time, the principles of procedural fairness, and relevant case law to determine whether the Union's application should be successful.

The Fair Work Commission found that the Union's application for an extension was not made within a reasonable time and did not provide sufficient evidence of special circumstances to justify an extension of the statutory time limit. The Commission emphasised that the statutory time limit for filing a Notice of Appeal is strict and intended to ensure finality and efficiency in the appeal process. The Commission noted that the Union had not demonstrated any exceptional circumstances that would warrant an extension and that the delay in filing the application for an extension had caused prejudice to the respondent. Therefore, the Commission dismissed the Union's application for an extension of time.

The Fair Work Commission's final order was that the Union's application for an extension of time to file a Notice of Appeal was dismissed. The decision reinforced the importance of adhering to statutory time limits in the appeal process and highlighted the Commission's reluctance to extend these limits except in exceptional circumstances.

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v Teekay Marine Resources Pty Ltd T/A Teekay

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established