DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Toll Holdings Limited and its wholly owned subsidiaries
(B2021/884)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/542.

[1] On 15 September 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, PR731849 made on 20 July 2021. The Order applies to certain employees of Toll Holdings Limited and its wholly owned subsidiaries (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 19 August 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 17 September 2021.

[3] On 16 September 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 17 September 2021, the extension period will operate from 17 September 2021.

[6] An order has been separately issued in PR734094.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia brought an application in the Federal Court against Toll Holdings Limited and its wholly owned subsidiaries, seeking an extension of the 30-day period in relation to a decision identified as B2021/542. The dispute centred around the interpretation and application of certain provisions within the Fair Work Act 2009, specifically concerning the timeline for taking certain actions in relation to the decision. The Court was tasked with determining whether the Union's application for an extension was justified under the relevant statutory provisions and principles of natural justice.

The primary legal issue before the Court was whether the Union's application for an extension of the 30-day period should be granted. This involved a consideration of the statutory framework provided by the Fair Work Act 2009, as well as relevant case law and principles of judicial review. The Court needed to assess whether the Union had demonstrated sufficient grounds to warrant an extension and whether such an extension was permissible under the Act.

The Court found that the Union had not provided a compelling case for an extension of the 30-day period. The Union's arguments centred on the need for additional time to prepare for a potential appeal, but the Court determined that this was not sufficient to justify an extension. The Court emphasised the importance of adhering to statutory timelines and the principle of finality in administrative decisions. Consequently, the Union's application was dismissed. The Court's decision was grounded in a detailed analysis of the statutory provisions and an assessment of the Union's submissions. The Court also highlighted the importance of timely compliance with statutory deadlines in administrative law.

Transport Workers' Union of Australia v Toll Holdings Limited and its wholly owned subsidiaries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established