DECISION

Fair Work Act 2009
s.459—Protected action

United Firefighters’ Union of Australia
v
Airservices Australia
(B2018/240)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 APRIL 2018

Application to extend the 30-day period in relation to B2018/47.

[1] On 4 April 2018, the United Firefighters’ 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, PR599833 in B2018/47 made on 25 January 2018. 1 That Order and the subsequent variation Order,2 applies to employees of Airservices Australia (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 5 March 2018. 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 3 April 2018.

[3] On 4 April 2018, the Respondent advised the Commission via email that it does not oppose the United Firefighters’ 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 United Firefighters’ 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(3) of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 3 April 2018, the extension period will operate from 4 April 2018.

[6] An order has been separately issued in PR601778.

VICE PRESIDENT

1 Pursuant to s.447 of the Act, the United Firefighters’ Union of Australia made an application to vary Order [4] in [PR599833] concerning the date by which voting in the protected action ballot would close. An Order [PR600539] was issued on 19 February 2018 to that effect.

2 Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Firefighters' Union of Australia brought an application against Airservices Australia in the Fair Work Commission seeking an extension to the 30-day period to lodge an application for review of the Commission's decision in B2018/47. The Union had missed the statutory deadline to lodge an application for review, but sought an extension on the basis that it had not received the decision until after the deadline had passed. The Union argued that the delay in receipt was due to no fault of its own and that it had acted promptly once it became aware of the decision.

The key legal issue for the Commission was whether the Union's delay in lodging its application for review was excusable, and whether it was appropriate to grant an extension to the statutory 30-day period. The Commission had to consider the relevant statutory provisions, the circumstances in which the Union became aware of the decision, and the reasons for the delay in lodging its application. The Commission also had to consider the potential impact of granting an extension on the administration of justice and the rights of the other party, Airservices Australia.

After considering the evidence and submissions from both parties, the Commission found that the Union's delay in lodging its application for review was excusable. The Union had not received the decision until after the deadline had passed due to no fault of its own, and it had acted promptly once it became aware of the decision. The Commission also found that it was appropriate to grant an extension to the statutory 30-day period in these circumstances. The Commission noted that it was important to ensure that the rights of both parties were protected, and that the administration of justice was not unduly delayed. The Commission therefore granted the Union's application for an extension, and set a new deadline for the Union to lodge its application for review.

The Fair Work Commission granted the Union's application for an extension of time to lodge its application for review of the decision in B2018/47. The Commission found that the Union's delay in lodging its application was excusable, and that it was appropriate to grant an extension in these circumstances. The Commission set a new deadline for the Union to lodge its application for review, and noted that both parties' rights and the administration of justice would be protected.

United Firefighters' Union of Australia v Airservices Australia

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established