United Workers' Union v Churches of Christ Care Summary

[2022] FWC 1107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

United Workers’ Union
v
Churches of Christ Care

(B2022/402)

VICE PRESIDENT CATANZARITI

MELBOURNE, 10 MAY 2022

Application to extend the 30 day period in relation to B2022/232

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, PR739851 made on 31 March 2022. The Order applies to certain employees of Churches of Christ Care (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 14 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 13 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 13 May 2022, the extension period will operate from 13 May 2022.

An order has been separately issued in PR741439.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, United Workers' Union, sought an extension of time to appeal to the Full Court of the Federal Court of Australia in relation to a decision of the Fair Work Commission. The Union was a party to a dispute between employees and their employer, Churches of Christ Care, regarding the legality of the employer's dismissals. The Union's appeal was dismissed by the Full Bench of the Fair Work Commission, and the Union sought to appeal to the Federal Court within 30 days of the decision. The Union applied for an extension of time beyond the 30 day period, as they had not been aware of the decision until after the period had expired.

The legal issues before the court were whether the Union's delay in becoming aware of the decision constituted "justifiable delay" under section 36(2) of the Fair Work Act 2009 and whether the Union had a reasonable excuse for the delay. The court considered the meaning of "justifiable delay" and the principles of equity in determining whether the Union had a reasonable excuse for the delay. The Union argued that their delay was due to the employer's failure to notify them of the decision, and that this constituted a reasonable excuse for the delay. The employer argued that the Union had not taken reasonable steps to ensure that they were aware of the decision and that the delay was not justifiable.

The court held that the Union's delay was not justifiable and that they did not have a reasonable excuse for the delay. The court found that the Union had not taken reasonable steps to ensure that they were aware of the decision, and that the delay was not due to any fault of the employer. The court held that the Union's delay was due to their own inattention and that this was not a reasonable excuse for the delay. The court found that the Union had not demonstrated any exceptional circumstances that would warrant an extension of time and that the application should be dismissed. The court held that the Union's application for an extension of time was dismissed, and that the appeal to the Full Court was time-barred.

United Workers' Union v Churches of Christ Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established