Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Cape Flattery Silica Mines Pty Ltd

[2025] FWC 1464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Cape Flattery Silica Mines Pty Ltd

(B2025/829)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 28 MAY 2025

Application to extend the 30 day period in relation to B2025/627

This matter concerns the declaration of the result of a protected action ballot PR786129 held in matter B2025/627 and declared on 2 May 2025.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days from the expiry of the original 30 days.

Cape Flattery Silica Mines Pty Ltd has not advised the Commission of any objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 31 May 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided by Deputy President Hampton, dealt with an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Cape Flattery Silica Mines Pty Ltd. The union sought an extension of the 30-day period within which industrial action was authorised by a protected action ballot. The application was lodged under section 459(3) of the Fair Work Act 2009, which permits the Commission to extend the specified period by up to 30 days if certain criteria are met. The union argued that it had fulfilled all necessary requirements for the extension, and Cape Flattery Silica Mines Pty Ltd did not oppose the application.

The legal issue before the Commission was whether the union's application met the statutory requirements for extending the 30-day period for industrial action. Specifically, the court had to determine if the union's application was made within the prescribed timeframe and if the period had not already been extended previously. Section 459(3) of the Fair Work Act 2009 was central to this decision, as it outlined the conditions under which the Commission could grant such an extension.

In examining the application, the Deputy President considered the statutory provisions and found that the union had satisfied all the requirements. The union had applied for the extension before the original 30-day period expired, and there was no evidence that the period had been previously extended. Given the absence of any objection from Cape Flattery Silica Mines Pty Ltd, the Deputy President concluded that the application should be granted. As a result, the 30-day period for the commencement of protected industrial action for eligible employees employed by the respondent was extended by an additional 30 days, effective from 31 May 2025.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established