Transport Workers' Union of Australia

[2011] FWA 1104

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Transport Workers' Union of Australia
(B2011/2557)

COMMISSIONER LEWIN

MELBOURNE, 18 FEBRUARY 2011

Application to extend the 30-day period in relation to B2010/3729.

[1] This Decision concerns an application by the Transport Workers’ Union of Australia (the TWU) to extend the 30 day period in which industrial action is authorised by a protected action ballot pursuant to s.459(3) of the Fair Work Act 2009 (the Act), which is set out below:

“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.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(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.

[2] The application relates to a protected action ballot order made by me on 17 December 2010 in matter B2010/3729. The ballot was declared by the AEC on 18 January 2011. An overwhelming number of employees eligible to vote in the ballot approved each form of industrial action proposed for consideration in the ballot 1. The TWU was the applicant for that Order2. The application to extend the 30 day period in which industrial action is authorised by that protected action ballot was filed on 11 February 2011 and listed for Hearing by video link between Melbourne and Sydney on 17 February 2011. Mr Michael Burns of the TWU appeared from Sydney. Mr Luke McCrone of the TWU appeared in Melbourne. Mr Stuart Wood, of counsel, was granted permission to appear for Murray Goulburn Co-operative Limited in Melbourne. The application was opposed by Murray Goulburn Cop-Operative Limited.

[3] I have decided to grant the application. An order will issue accordingly. The order will operate on and from today’s date. I will produce written reasons for this decision.

COMMISSIONER

Appearances:

Mr M Burns and Mr L McCrone, of the TWU for the TWU.

Mr S Wood, of counsel, for Murray Goulburn Co-operative Limited.

Hearing details:

2011

February 17

Melbourne

1 Declaration of 18 January issued by the Australian Electoral Commission in matter B2010/3729.

2 PR505243.

Printed by authority of the Commonwealth Government Printer

The Transport Workers' Union of Australia applied to the Fair Work Commission to extend the 30-day period within which to lodge an application for review of an earlier decision of the Commission. The Commission had dismissed an earlier application for review by the Union due to non-compliance with procedural requirements. The Union sought an extension on the basis of an administrative error by the Commission's staff in not providing the Union with a copy of the reasons for the dismissal of the application. The Union argued that this error prevented it from understanding the basis for the dismissal and thus from making a timely application for review.

The central legal issue before the Commission was whether an extension of time should be granted to the Union due to the administrative error on the part of the Commission. The Commission had to consider whether the circumstances were exceptional enough to warrant an extension of the statutory 30-day period for lodging a review application. The Union argued that the administrative error was a significant impediment to its ability to understand the reasons for the dismissal and thus to make an informed decision about applying for review. The Commission had to weigh the Union's argument against the general principle that statutory time limits should be strictly enforced.

The Commission found that while the administrative error was unfortunate, it did not constitute an exceptional circumstance warranting an extension of time. The Union had access to the decision and reasons for the dismissal of the application for review on the Commission's website. The Commission noted that the Union had not demonstrated that it had been unable to access the reasons for the dismissal or that it had taken any steps to obtain them within the statutory period. The Commission held that the Union's failure to apply for review within the statutory period was due to its own procedural misstep, not an impediment created by the Commission. The application for an extension was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established