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

[2025] FWC 1958

[2025] FWC 1958

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

Moffat Pty Ltd

(B2025/1089)

COMMISSIONER CLARKE MELBOURNE, 9 JULY 2025

Application to extend the 30-day period in relation to B2025/894

1. This matter concerns the declaration of the result of a protected action ballot PR787966 held in matter B2025/894 and declared on 23 June 2025.

1. 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. The relevant 30-day period in this instance is due to conclude on 22 July 2025.

1. 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.”

1. The Applicant had initially indicated at item 2.3 of its Form F34A application that the Commission had previously extended the 30-day period in respect of the same protected action ballot. This seemed unlikely given the time period, and there was no record of such an extension in the Commission’s internal systems. The Applicant subsequently confirmed that item 2.3 in the application form had been completed incorrectly and that there has not been a previous extension granted in respect of this protected action ballot.

1. Moffat Pty Ltd (Respondent) has advised the Commission it opposes the application. The grounds of opposition were not based on a failure to meet the relevant requirements but rather in the fact that there is a section 240 application before the Commission and that bargaining is continuing, such that there is “no utility in extending the order at this time”. The Respondent did not seek to be heard otherwise than to have that submission considered.

1. I am satisfied that the relevant requirements of the Act have been met and that the application may be granted. I understand the Respondent’s position to be that the application should be refused in an exercise of discretion. There is no doubt that there is a discretion to allow or refuse applications of this type where the relevant pre-requisites have been established.[1] However, there is no statutory indication that the taking of protected industrial action and participation in bargaining (or Commission facilitated efforts to resolve disputes in bargaining under section 240) are (necessarily or rationally) mutually exclusive avenues.[2] It may well be that agreements are reached to moderate, withdraw or delay plans to take protected industrial action as part of bargaining discussions. But the occurrence of bargaining discussions (whether with the assistance or the Commission or not) ought not predispose a bargaining representative to being denied access to a period of time to consider its position as to whether protected industrial action will be taken. It might be different if the bargaining representative was refusing to engage in bargaining at all,[3] but that appears to be the opposite of what is occurring here.

1. Accordingly, pursuant to section 459(3) of the Act, I have ordered[4] 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 Respondent be extended by a further 30 days, commencing from 23 July 2025.

COMMISSIONER

[1] AWU v. Tyco Water Pty Ltd[2009] FWA 512.

[2] See also LHMU v. Minda Incorporated [2010] FWA 3461 at [29], Re TWU [2015] FWC 8961 at [2], [15].

[3] Re TWU [2015] FWC 8961 at [15].

[4] PR789046.

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