Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99 Appeal from: Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd t/a DP World and Others [2019] FWC 908 Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd t/a DP World and Others [2019] FWCFB 1150

File number: NSD 414 of 2019

Judges: RARES, JAGOT AND BROMWICH JJ

Date of judgment: 20 June 2019

Catchwords: INDUSTRIAL LAW – protected action ballot – application for the extension of time under s 443(5) of the Fair Work Act for the giving of notice of the taking of industrial action – was the decision of the Full Bench of the Fair Work Commission subject to jurisdictional error –whether the Deputy President had exercised discretion upon finding exceptional circumstances – whether the Deputy President considered if the extended notice period would diminish the employees' bargaining power – whether sufficient evidence was put before the Deputy President –application be dismissed.

Legislation: Fair Work Act 2009 (Cth) ss 12, 414(1), 414(2), 443(5) Judiciary Act 1903 (Cth) s 39B

Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 House v The King (1936) 55 CLR 499 National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600