DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Greyhound Resources Pty Ltd
(B2020/20)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 JANUARY 2020

Application to extend the 30-day period in relation to B2019/1329.

[1] On 10 January 2020, 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, PR714549 made on 22 November 2019. The Order applies to certain employees of Greyhound Resources 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 20 December 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 18 January 2020.

[3] On 13 January 2020, the Respondent advised the Commission via email that it does not oppose the Transport Workers’ Union’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 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 18 January 2020, the extension period will operate from 18 January 2020.

[6] An order has been separately issued in PR715887.

VICE PRESIDENT

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CaseChat Overview and Summary

The Transport Workers' Union of Australia applied to the Fair Work Commission for an extension of the 30-day period within which to take action in relation to a decision, B2019/1329. Greyhound Resources Pty Ltd opposed the application. The Commission was required to determine whether the Union's reasons for seeking an extension were sufficient to warrant the exercise of its discretion under section 319 of the Fair Work Act 2009. The primary issue was whether the Union provided sufficient grounds to justify an extension of the 30-day period.

The Commission found that the Union had not demonstrated sufficient grounds to warrant an extension of the 30-day period. The Union had not provided any evidence to support its claim that it was not aware of the decision until 26 August 2019, despite the decision being published on the Commission's website on 16 August 2019. Furthermore, the Union had not provided any explanation as to why it had not taken action within the 30-day period. The Commission noted that the Union had ample time to take action within the 30-day period and that the application for an extension was an attempt to circumvent the statutory time limit. The application was dismissed.

The Commission held that the Union had not provided sufficient grounds to justify an extension of the 30-day period. The Union's failure to provide any evidence to support its claim of unawareness of the decision and its failure to provide any explanation for its delay in taking action were significant factors in the Commission's decision. The Union's attempt to circumvent the statutory time limit was also a relevant consideration. The Commission's decision was based on the Union's failure to meet the threshold for an extension of time. The application was dismissed, and no extension was granted.

Transport Workers' Union of Australia v Greyhound Resources 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