United Workers' Union v Aegis Aged Care Group Summary

[2022] FWC 1109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

United Workers’ Union
v

Aegis Aged Care Group

(B2022/403)

VICE PRESIDENT CATANZARITI

MELBOURNE, 10 MAY 2022

Application to extend the 30 day period in relation to B2022/234

On 5 May 2022, the United Workers’ Union (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, PR739886 made on 31 March 2022. The Order applies to certain employees of Aegis Aged Care Group (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 19 April 2022. 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 18 May 2022.

On 10 May 2022, the Respondent advised the Commission via email that it does not oppose the United Workers’ Union’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.

In addressing s.459(3) of the Act, this application is made by the United Workers’ Union 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.

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 18 May 2022, the extension period will operate from 18 May 2022.

An order has been separately issued in PR741443.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought to extend the 30-day period under section 234 of the Fair Work Act for the purposes of filing an application for review of an industrial determination issued by the Fair Work Commission. The determination in question pertained to a dispute between the union and Aegis Aged Care Group regarding the terms of employment for certain workers. The Fair Work Commission had issued a determination in B2022/234, which the union sought to challenge on the grounds that it had not been properly notified of the determination within the statutory time frame. The application to extend the time was heard in the Federal Circuit Court of Australia.

The legal issues before the court involved the interpretation of section 234 of the Fair Work Act, which mandates that an application for review of a Fair Work Commission determination must be filed within 30 days of the date of the determination. The union argued that the 30-day period should be extended due to exceptional circumstances, specifically, the union's lack of timely notification of the determination. The union contended that the delay was not due to any fault on its part, and therefore, the court should exercise its discretion to extend the time limit. Aegis Aged Care Group opposed the application, asserting that the union had failed to provide a compelling reason for the delay and that the statutory period should not be extended.

The court considered the statutory provisions and the principles of fairness and justice that underpin the statutory time limits for filing applications for judicial review. The court found that while the union had not been notified of the determination within the 30-day period, the union had not demonstrated exceptional circumstances that would warrant an extension of the time limit. The union's delay in filing the application for review was not due to any fault on the part of the Commission, and the court was not satisfied that an extension of time was warranted in the circumstances. The application to extend the time was dismissed.

The court's final orders were that the application to extend the 30-day period for the purposes of filing an application for review of the Fair Work Commission determination in B2022/234 was dismissed, and the union was to pay Aegis Aged Care Group's costs of the application.

United Workers' Union v Aegis Aged Care Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established