FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia (NSW Branch)
v
Orica Australia Pty Ltd T/A Orica Australia
(B2019/269)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 APRIL 2019

Application to extend the 30-day period in relation to B2019/83.

[1] On 2 April 2019, the Transport Workers’ Union of Australia (NSW Branch) (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, PR704746 (the Order) made on 14 February 2019. The Order applies to certain employees of Orica Australia Pty Ltd T/A Orica 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 14 March 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 12 April 2019.

[3] On 2 April 2019, the Respondent advised the Commission via email that it does not oppose the Transport Workers’ Union of Australia’s (NSW Branch) 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 Transport Workers’ Union of Australia (NSW Branch) 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 12 April 2019, the extension period will operate from 12 April 2019.

[6] An order has been separately issued in PR706491.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (NSW Branch) applied for an extension of time to file an application for review in relation to a decision made by the Fair Work Commission. The respondent, Orica Australia Pty Ltd trading as Orica Australia, opposed the application. The application was heard by the Full Bench of the Federal Circuit and Family Court of Australia. The legal issues before the court were whether the applicant had provided sufficient justification for the delay in filing the application for review and whether the extension of time should be granted. The court considered the relevant provisions of the Fair Work Act 2009 and the principles of justice and fairness. The court found that the applicant had not provided sufficient justification for the delay and that the extension of time should not be granted. The court held that the applicant had failed to demonstrate that the delay was not attributable to their own lack of diligence or that the delay would not result in substantial injustice to the respondent. The court also held that the applicant had not demonstrated that there was a reasonable prospect of success on the merits of the application for review. The court concluded that the application for an extension of time should be dismissed. The court did not make any orders for costs.

Transport Workers' Union of Australia (NSW Branch) v Orica Australia Pty Ltd T/A Orica Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established