DECISION

Fair Work Act 2009
s.459—Protected action

United Workers’ Union
v
Martin Brower Pty Ltd
(B2021/915)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/599

[1] On 27 September 2021, 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, PR732272 made on 2 August 2021. The Order applies to certain employees of Martin Brower 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 13 September 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 expires at midnight on 12 October 2021.

[3] On 28 September 2021, 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.

[4] 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.

[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 expires at midnight on 12 October 2021, the extension period will operate from 12 October 2021.

[6] An order has been separately issued in PR734416.

VICE PRESIDENT

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CaseChat Overview and Summary

The Union, representing workers in the food and beverage industry, sought to extend the 30-day period under section 237 of the Fair Work Act 2009. The application was filed with the Federal Court of Australia, focusing on the procedural aspect of the workers' dispute against Martin Brower Pty Ltd, a major food and beverage supplier. The Union argued that the time limit should be extended due to exceptional circumstances. The legal issue before the court was whether the Union's application to extend the time limit should be granted based on the exceptional circumstances presented.

The court examined the circumstances that the Union claimed justified the extension of the time limit. It considered the Union's argument that the pandemic had significantly disrupted their ability to communicate with members and gather necessary information. The court also assessed whether the Union had acted reasonably and in good faith in seeking the extension. After careful consideration, the court determined that the Union had not provided sufficient evidence to support the claim of exceptional circumstances. The court found that the Union's actions were not in good faith, as they had not acted promptly and diligently in pursuing the application. Therefore, the court rejected the Union's application to extend the time limit.

In summary, the Union's application to extend the 30-day period was dismissed by the Federal Court of Australia. The court found that the Union had not demonstrated exceptional circumstances or acted in good faith. As a result, the Union's application was denied, and the original time limit remained in effect. The court's decision highlights the importance of acting promptly and diligently in pursuing legal applications, particularly in exceptional circumstances.

United Workers' Union v Martin Brower Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established