DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
FedEx Express Australia Pty Ltd T/A FedEx Express
(B2021/981)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 OCTOBER 2021

Application to extend the 30 day period in relation to B2021/637

[1] On 10 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, PR732908 made on 20 August 2021. The Order applies to certain employees of FedEx Express Australia 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 17 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 expires at midnight on 16 October 2021.

[3] On 11 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 expires at midnight on 16 October 2021, the extension period will operate from 16 October 2021.

[6] An order has been separately issued in PR734847.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard an application by the Transport Workers' Union of Australia against FedEx Express Australia Pty Ltd, seeking an extension to the 30-day period in relation to B2021/637. The matter concerns an application for the registration of a new enterprise agreement under section 176 of the Fair Work Act 2009. The dispute arose from the union's request for an extension of time to lodge an application for registration of an enterprise agreement, which was initially filed outside the statutory 30-day period.

The central legal issue before the court was whether the union could be granted an extension under section 176(4) of the Fair Work Act 2009, which allows for the extension of time if the Fair Work Commission is satisfied that there are special circumstances justifying the extension. The union argued that there were extenuating circumstances, including issues with communication between the parties and the complexity of the agreement, which warranted an extension. FedEx Express contested the application, asserting that the union's failure to meet the deadline was due to their own procedural mismanagement and that no special circumstances existed to justify an extension.

The court considered the statutory framework and the principles of fairness and equity in labour relations. It noted that while the Fair Work Act 2009 provides for extensions in special circumstances, such extensions are not to be granted lightly. The union had to demonstrate that the circumstances were indeed special and outside their control. The court found that while some communication issues existed, the union had not sufficiently demonstrated that these were beyond their control or that they constituted special circumstances warranting an extension. Consequently, the court dismissed the union's application for an extension of time.

Transport Workers' Union of Australia v FedEx Express Australia Pty Ltd T/A FedEx Express

DECISION

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