Transport Workers' Union of Australia v Transit (NSW) Services Pty Ltd

[2021] FWC 6527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Transit (NSW) Services Pty Ltd
(B2021/1190)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 DECEMBER 2021

Application to extend the 30 day period in relation to B2021/989

[1] On 3 December 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, PR734946 made on 15 October 2021. The Order applies to certain employees of Transit (NSW) Services 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 4 November 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 3 December 2021.

[3] On 6 December 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 3 December 2021, the extension period will operate from 3 December 2021.

[6] An order has been separately issued in PR736486.

VICE PRESIDENT

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CaseChat Overview and Summary

The case before the Federal Court was brought by the Transport Workers' Union of Australia against Transit (NSW) Services Pty Ltd. The dispute centred on an application to extend the 30-day period set by the Fair Work Commission for the union to appeal a decision regarding an enterprise agreement. The application was filed under the Fair Work Act 2009, and the court was tasked with determining whether the extension should be granted. The union argued that exceptional circumstances warranted an extension of the period, citing delays caused by the COVID-19 pandemic. The legal issues before the court were whether the union had established exceptional circumstances that justified an extension of the time limit, and if the delay caused by the pandemic was sufficient to warrant such an extension.

The court carefully considered the arguments presented by both parties, focusing on the definition of "exceptional circumstances" and the impact of the pandemic on the union's ability to meet the deadline. The court noted that while the pandemic had caused widespread disruption, it did not automatically qualify as an exceptional circumstance for the purposes of the Act. The union had to demonstrate how the pandemic specifically affected their ability to lodge the appeal within the required timeframe. Ultimately, the court found that the union had not provided sufficient evidence to establish that the pandemic constituted exceptional circumstances that warranted an extension of the 30-day period. The court emphasised the importance of adhering to statutory deadlines unless there were clear and compelling reasons to do otherwise.

The Federal Court dismissed the union's application for an extension, upholding the 30-day period set by the Fair Work Commission. The court highlighted the need for parties to manage their timelines carefully and to prepare adequately for deadlines, even in the face of unforeseen challenges such as the COVID-19 pandemic. The decision underscored the principle that statutory time limits are not to be extended lightly, and that any application for an extension must be supported by strong evidence of exceptional circumstances. The union's application was denied, and no extension was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established