DECISION

Fair Work Act 2009
s.459—Protected action

United Workers’ Union
v
Spotless Facility Services Pty Ltd T/A Spotless
(B2021/597)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 JULY 2021

Application to extend the 30 day period in relation to B2021/326.

[1] On 27 July 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, PR729811 made on 13 May 2021. The Order applies to certain employees of Spotless Facility Services Pty Ltd T/A Spotless (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 29 June 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 expired at midnight on 28 July 2021.

[3] On 28 July 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 expired at midnight on 28 July 2021, the extension period will operate from 28 July 2021.

[6] An order has been separately issued in PR732284.

VICE PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, United Workers' Union applied for an extension of the 30-day period within which to lodge an application for review of an enterprise agreement, arguing that they had not been provided with a copy of the agreement until after the 30-day period had expired. The respondent, Spotless Facility Services Pty Ltd T/A Spotless, opposed the application on the grounds that the Union had not exercised due diligence in obtaining the agreement. The dispute hinged on whether the Union's failure to obtain the agreement within the specified time frame constituted a valid reason for extending the 30-day period.

The Commission considered whether the Union had acted with reasonable diligence in attempting to obtain the agreement and whether the delay was caused by circumstances beyond their control. The Commission noted that the Union had made efforts to obtain the agreement but had not taken the necessary steps to follow up on their request. The Commission further found that the Union's failure to obtain the agreement was due to their own lack of diligence rather than any fault on the part of the employer. Accordingly, the application for an extension of time was dismissed.

The Fair Work Commission held that the Union had not exercised due diligence in attempting to obtain the agreement, and therefore, the delay in lodging the application for review was not justified. The application for an extension of time was dismissed, and the Union's application for review was deemed to be out of time. The decision highlights the importance of exercising reasonable diligence in obtaining relevant documents and the consequences of failing to do so. The Union was ordered to pay the respondent's costs of the application.

United Workers' Union v Spotless Facility Services Pty Ltd T/A Spotless

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established