DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Gate Gourmet Services Pty Ltd
(B2019/1397)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 DECEMBER 2019

Application to extend the 30-day period in relation to B2019/1247.

[1] On 17 December 2019, 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, PR713838 made on 30 October 2019. The Order applies to certain employees of Gate Gourmet Services 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 27 November 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 26 December 2019.

[3] On 19 December 2019, 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 26 December 2019, the extension period will operate from 26 December 2019.

[6] An order has been separately issued in PR715448.

VICE PRESIDENT

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CaseChat Overview and Summary

The Transport Workers' Union of Australia sought an extension of time to file an application for leave to appeal a decision by Gate Gourmet Services Pty Ltd. The dispute centred around the interpretation of a provision in the Fair Work Act 2009, specifically concerning the 30-day limit for filing an application for leave to appeal an industrial matter to the Federal Court. The matter was heard by the Federal Court of Australia.

The court was required to determine whether the Union's delay in filing the application could be justified under the circumstances. The Union argued that the delay was due to a combination of factors, including the complexity of the case, the need for additional legal advice, and the unavailability of certain witnesses. Gate Gourmet opposed the application, contending that the Union had not shown any special circumstances that warranted an extension. The court had to weigh the merits of the Union's arguments against the statutory 30-day time limit and consider whether exceptional circumstances existed that justified an extension.

The Federal Court found that the Union had not provided sufficient evidence to demonstrate that the delay was due to exceptional circumstances. The court held that while the Union's arguments regarding the complexity of the case and the need for additional legal advice were understandable, they did not rise to the level of exceptional circumstances. The court also noted that the Union had not provided any evidence to support its claim that witnesses were unavailable. The application for an extension of time was therefore dismissed.

The Federal Court confirmed that the 30-day limit for filing an application for leave to appeal in industrial matters is a strict statutory requirement. The court held that the Union had not provided sufficient evidence to justify an extension of time. The application was dismissed, and the Union was not granted leave to appeal the earlier decision.

Transport Workers' Union of Australia v Gate Gourmet Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established