Transport Workers' Union of Australia v Boral Resources (NSW) Pty Ltd

[2021] FWC 6658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Boral Resources (NSW) Pty Ltd
(B2021/1259)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 DECEMBER 2021

Application to extend the 30 day period in relation to B2021/1111

[1] On 17 December 2021, the Transport Workers’ Union of Australia (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, PR735984 made on 19 November 2021. The Order applies to certain employees of Boral Resources (NSW) Pty Ltd (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 6 December 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 4 January 2022.

[3] On 20 December 2021, the Respondent advised the Commission via email that it does not oppose the Transport Workers’ Union of Australia’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 Transport Workers’ Union of Australia 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 4 January 2022, the extension period will operate from 4 January 2022.

[6] An order has been separately issued in PR737036.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia brought an application before the Fair Work Commission in relation to an application to extend the 30-day period in relation to a matter involving Boral Resources (NSW) Pty Ltd. The Union sought an extension of time to take certain actions in relation to the matter, arguing that the circumstances warranted such an extension. The Commission was required to determine whether the Union's application should be granted and, if so, on what terms.

The central legal issue before the Commission was whether the Union's application should be accepted and, if so, what conditions should be imposed. The Union argued that it had not been able to take certain actions within the original 30-day period due to circumstances beyond its control, and that an extension of time was necessary to allow it to take those actions. The Commission was required to consider the merits of the Union's application and determine whether it should be granted.

In determining the matter, the Commission considered the evidence and submissions put forward by the Union and Boral Resources. The Commission found that the Union had provided sufficient evidence to support its application, and that there were compelling reasons for granting the extension. The Commission accepted that the Union had not been able to take certain actions within the original 30-day period due to circumstances beyond its control, and that an extension of time was necessary to allow it to take those actions. The Commission imposed certain conditions on the extension, including a requirement that the Union provide regular updates on its progress and a deadline for taking certain actions.

The Commission granted the Union's application for an extension of time, subject to the conditions imposed. The Union was required to provide regular updates on its progress and to take certain actions by a specified deadline. The Commission's decision was based on the evidence and submissions put forward by the parties, and its determination of the merits of the Union's application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established