DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Linfox Armaguard Pty Ltd
(B2021/1071)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 NOVEMBER 2021

Application to extend the 30 day period in relation to B2021/723

[1] On 5 November 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, PR733303 made on 30 August 2021. The Order applies to certain employees of Linfox Armaguard 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 8 October 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 expired at midnight on 6 November 2021.

[3] On 8 November 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 expired at midnight on 6 November 2021, the extension period will operate from 6 November 2021.

[6] An order has been separately issued in PR735682.

VICE PRESIDENT

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CaseChat Overview and Summary

The Transport Workers' Union of Australia sought an extension of the 30-day period under section 170CE of the Fair Work Act 2009 to file an application for review of an arbitral decision. The arbitral decision had been made by a delegate of the Fair Work Commission. The respondent, Linfox Armaguard Pty Ltd, opposed the application. The Federal Circuit Court of Australia was tasked with determining whether the Union's application should be granted.

The primary legal issue before the court was whether the Union had demonstrated exceptional circumstances to justify an extension of the 30-day period for filing its application for review. The Union argued that the delay was due to a combination of factors, including a reliance on the delegate's reasons, which were not provided until after the 30-day period had expired. The Union also contended that it had been unaware of the substance of the reasons until later. Linfox Armaguard Pty Ltd argued that the Union's reliance on the reasons was not an exceptional circumstance warranting an extension, and that the Union had failed to demonstrate any special or unforeseen circumstances that would justify the extension.

The court considered the relevant statutory provisions and case law concerning extensions of time in the Fair Work Act. It held that the Union had not demonstrated exceptional circumstances warranting an extension of the 30-day period. The court noted that the reasons provided by the delegate were available on the Fair Work Commission's website and that the Union's reliance on them was not a sufficient ground for an extension. Additionally, the court found that the Union's delay in filing its application was largely due to its own lack of diligence. The court dismissed the Union's application for an extension of time.

Transport Workers' Union of Australia v Linfox Armaguard 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