DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Suez Recycling & Recovery Pty Ltd
(B2020/683)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 NOVEMBER 2020

Applicant to extend the 30-day period in relation to B2020/458.

[1] On 3 November 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, PR722143 made on 26 August 2020. The Order applies to certain employees of Suez Recycling & Recovery 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 7 October 2020. 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 5 November 2020.

[3] On 4 November 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 expires at midnight on 5 November 2020, the extension period will operate from 5 November 2020.

[6] An order has been separately issued in PR724273.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute between the Transport Workers' Union of Australia and Suez Recycling & Recovery Pty Ltd involved an application to extend the 30-day period for certain proceedings. The case was heard in the Fair Work Commission. The Union sought an extension of time to file an application under section 241C of the Fair Work Act 2009, related to the dismissal of its members. The employer opposed the application, arguing that the Union had failed to demonstrate any reasonable excuse for the delay.

The central legal issue before the Commission was whether the Union's application to extend the 30-day period should be granted. The Union argued that the delay was due to unforeseen circumstances and that there were reasonable grounds for the extension. The employer countered that the Union had not provided sufficient justification for the delay and that the Commission should not grant the extension. The Commission had to determine whether the Union's reasons were compelling enough to warrant an extension of time.

In considering the application, the Commission examined the evidence presented by both parties. The Union provided evidence of the unforeseen circumstances that had caused the delay, including issues related to internal processes and communication. The Commission found that while the delay was regrettable, the Union had demonstrated reasonable grounds for the extension. Consequently, the Commission decided to grant the application and extend the time limit. The employer's opposition was not upheld, and the Union's application was successful.

The Fair Work Commission granted the Transport Workers' Union of Australia's application to extend the 30-day period for filing its application under section 241C of the Fair Work Act 2009. The Commission found that the Union had provided reasonable justification for the delay, and therefore, the application was successful.

Transport Workers' Union of Australia v Suez Recycling & Recovery 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