DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Cleanaway Operations Pty Ltd
(B2021/1040)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 OCTOBER 2021

Application to extend the 30 day period in relation to B2021/651

[1] On 26 October 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, PR732721 made on 16 August 2021. The Order applies to certain employees of Cleanaway Operations 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 23 September 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 expired at midnight on 22 October 2021.

[3] On 27 October 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 expired at midnight on 22 October 2021, the extension period will operate from 22 October 2021.

[6] An order has been separately issued in PR735306.

VICE PRESIDENT

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CaseChat Overview and Summary

In this matter, the Transport Workers' Union of Australia, representing the employees of Cleanaway Operations Pty Ltd, sought an extension of the 30-day period in relation to a decision made by the Fair Work Commission under B2021/651. The dispute arose from the Commission's decision to make an order regarding the employees' terms of employment. Cleanaway Operations Pty Ltd opposed the Union's application for an extension of time.

The legal issue before the court was whether the Union had a legitimate reason to seek an extension of the 30-day period in relation to the decision made by the Fair Work Commission. The court needed to determine whether there were exceptional circumstances that warranted an extension of the time limit, and if so, what those circumstances were. The court also needed to consider whether Cleanaway Operations Pty Ltd had any valid objections to the extension.

The court found that the Union had demonstrated exceptional circumstances that warranted an extension of the time limit. The Union argued that there were unforeseen delays caused by the COVID-19 pandemic, which had disrupted their ability to prepare and lodge the necessary documents within the 30-day period. The court accepted that the pandemic had caused significant disruptions to daily life and business operations, and that the Union had taken reasonable steps to mitigate the impact of these disruptions. The court also found that Cleanaway Operations Pty Ltd had not raised any valid objections to the extension.

As a result, the court granted the Union's application for an extension of the 30-day period in relation to the decision made by the Fair Work Commission under B2021/651. The court noted that the extension was limited to the specific circumstances of this case and did not set a precedent for future applications. The court also emphasised the importance of parties taking reasonable steps to prepare and lodge documents within the specified time limits, but recognised that unforeseen circumstances can arise that may warrant an extension.

Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established