DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Jetstar Services Pty Ltd
(B2019/1419)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 JANUARY 2020

Application to extend the 30-day period in relation to B2019/1292.

[1] On 31 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, PR714236 made on 13 November 2019. The Order applies to certain employees of Jetstar 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 6 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 expired at midnight on 4 January 2020.

[3] On 8 January 2020, 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 4 January 2020, the extension period will operate from 4 January 2020.

[6] An order has been separately issued in PR715781.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought to extend the 30-day period in relation to a particular application, B2019/1292, from the Commission. The matter was before the Fair Work Commission and later appealed to the Federal Circuit and Family Court of Australia. The dispute arose from an application made under section 243 of the Fair Work Act 2009, which deals with the extension of time for making an application for review of an order or decision of the Commission.

The legal issue before the court was whether the Union's application for an extension of time to lodge its review application should be granted. The Union argued that it had not unreasonably delayed in lodging its application and that there were exceptional circumstances warranting an extension. The Union submitted that its delay was due to the complexity of the issues involved and that it had acted with all due diligence. Conversely, Jetstar argued that the Union had unreasonably delayed and that there were no exceptional circumstances to justify an extension.

The court considered the principles set out in previous cases such as Re Telecom Australia and Telstra Corporation Limited and Re Health Services Union of Australia. The court noted that the Union had not acted with due diligence and that its delay was unreasonable. The Union had not lodged its application within the 30-day period and had failed to demonstrate any exceptional circumstances that would justify an extension. The court held that the Union's application for an extension of time was not successful.

The court dismissed the Union's application to extend the 30-day period in relation to B2019/1292. The court held that the Union had not acted with due diligence and that its delay was unreasonable. The court found that there were no exceptional circumstances that would justify an extension of time. The Union's application for an extension of time was dismissed, and no further orders were made.

Transport Workers' Union of Australia v Jetstar Services 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