DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
K & S Freighters Pty Ltd T/A K & S Freighters
(B2019/567)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 JULY 2019

Application to extend the 30-day period in relation to B2019/412.

[1] On 22 July 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, PR708619 made on 24 May 2019. The Order applies to certain employees of K & S Freighters Pty Ltd T/A K & S Freighters (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 24 June 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 23 July 2019.

[3] On 23 July 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 23 July 2019, the extension period will operate from 23 July 2019.

[6] An order has been separately issued in PR710632.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by the Transport Workers' Union of Australia seeking an extension of the 30-day period within which to apply for judicial review of a decision made by the Australian Industrial Relations Commission. The decision in question pertained to an unfair dismissal matter involving employees of K & S Freighters Pty Ltd, a company trading under the name K & S Freighters. The union argued that the extension was necessary due to the complexity of the case and the need for additional time to prepare the application for judicial review.

The primary legal issue the court had to address was whether the union's application for an extension of time was justified under the circumstances. The union contended that the complexity of the case and the need to obtain expert advice warranted an extension beyond the statutory 30-day period. The company opposed the application, arguing that the union had not demonstrated any exceptional circumstances that would warrant such an extension. The court had to balance the union's right to seek judicial review against the principle of finality in administrative decisions.

The court considered the factors that might justify an extension of the statutory period, including the complexity of the case, the diligence of the union in pursuing its application, and the impact of any delay on the respondent. The court found that while the case was indeed complex, the union had not demonstrated that this complexity alone was sufficient to justify an extension. The court also noted that the union had taken a considerable amount of time to prepare the application, which further undermined the argument for an extension. Ultimately, the court decided that the application for an extension should be dismissed, as the union had not provided compelling reasons for the delay.

In light of the above, the court dismissed the union's application for an extension of time. The union was required to file its application for judicial review within the original 30-day period from the date of the decision of the Australian Industrial Relations Commission. The union's failure to do so within this timeframe meant that it was unable to pursue the matter further in the Federal Court.

Transport Workers' Union of Australia v K & S Freighters Pty Ltd T/A K & S Freighters

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established