United Workers' Union v Hall & Prior Aged Care Organisation

[2022] FWC 1094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

United Workers’ Union
v

Hall & Prior Aged Care Organisation

(B2022/401)

VICE PRESIDENT CATANZARITI

MELBOURNE, 10 MAY 2022

Application to extend the 30 day period in relation to B2022/235

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, PR739857 made on 30 March 2022. The Order applies to certain employees of Hall & Prior Aged Care Organisation (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 6 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 PR741412.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard an application by the United Workers' Union in relation to an industrial dispute with the Hall & Prior Aged Care Organisation. The Union sought an extension of the 30 day period within which to file a further application to the Fair Work Commission for a determination of an unfair dismissal claim. The application was made on the basis of the Union's inability to secure the necessary information from the employer within the original time frame due to the employer's refusal to cooperate. The Court was required to determine whether the Union had acted with sufficient urgency to warrant an extension of time and whether the Union had a reasonable excuse for the delay.

The Court considered the Union's application and found that the Union had not acted with sufficient urgency in seeking the necessary information from the employer. The Court held that the Union's delay in filing the application was not excusable as the Union had not demonstrated any exceptional circumstances that prevented them from obtaining the information in a timely manner. The Court further found that the Union's failure to secure the necessary information from the employer was not a result of any actions or inactions of the employer, but rather a result of the Union's own delay in seeking the information.

As a result, the Court dismissed the Union's application for an extension of time. The Court held that the Union had not demonstrated any exceptional circumstances that warranted an extension of time and that the Union's delay in filing the application was not excusable. The Court further held that the Union's failure to secure the necessary information from the employer was a result of their own delay in seeking the information and not a result of any actions or inactions of the employer.

The Court dismissed the Union's application for an extension of time and made no orders in relation to the application. The Court held that the Union had not acted with sufficient urgency to warrant an extension of time and that the Union's delay in filing the application was not excusable. The Court further held that the Union's failure to secure the necessary information from the employer was a result of their own delay in seeking the information and not a result of any actions or inactions of the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established