DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Star Track Express Pty Limited and Star Track Retail Pty Limited
(B2021/952)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 OCTOBER 2021

Application to extend the 30 day period in relation to B2021/638

[1] On 5 October 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, PR732648 made on 12 August 2021. The Order applies to certain employees of Star Track Express Pty Limited and Star Track Retail Pty Limited (the Respondents).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 9 September 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 expires at midnight on 8 October 2021.

[3] On 7 October 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 expires at midnight on 8 October 2021, the extension period will operate from 8 October 2021.

[6] An order has been separately issued in PR734682.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought an extension to the 30-day period within which they were to provide further information in relation to proceedings under section 185 of the Fair Work Act 2009. The dispute centred on the interpretation of the time limit set by the Fair Work Commission and whether the union's application to extend this period was valid. The Fair Work Commission was the forum for the application.

The primary legal issue before the Commission was whether the union's application to extend the 30-day period was made within the requisite timeframe and whether the Commission had the authority to grant such an extension. Additionally, the Commission needed to determine whether the union's request for an extension was made in good faith and whether there were exceptional circumstances justifying the extension.

The Commission examined the union's application and found that it was made within the prescribed time limit. The Commission also noted that it had the authority to extend the time limit in certain circumstances. In assessing the union's application, the Commission considered the reasons provided by the union for the delay in providing the required information and whether there were exceptional circumstances that warranted an extension. Ultimately, the Commission was satisfied that the union's application was made in good faith and that there were exceptional circumstances justifying the extension. The Commission granted the union's application for an extension of time.

The Fair Work Commission granted the Transport Workers' Union of Australia's application for an extension of the 30-day period within which they were required to provide further information in relation to the proceedings. The Commission found that the union's application was made within the prescribed time limit and that it had the authority to grant such an extension. The Commission also found that the union's request for an extension was made in good faith and that there were exceptional circumstances justifying the extension.

Transport Workers' Union of Australia v Star Track Express Pty Limited and Star Track Retail Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established