v Cape Flattery Silica Mines Pty Ltd

[2025] FWC 1414

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

Australian Workers' Union

Cape Flattery Silica Mines Pty Ltd

(B2025/811)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 MAY 2025

Application to extend the 30 day period in relation to B2025/636.

This matter concerns the declaration of the result of a protected action ballot PR786264 held in matter B2025/636 and declared on 2 May 2025.

The Australian Workers' Union 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 Australian Workers' Union has applied to the Fair Work Commission to extend the period during which industrial action may be taken by employees of Cape Flattery Silica Mines Pty Ltd, following a protected action ballot. This application was made under section 459(3) of the Fair Work Act 2009. The initial period for taking industrial action, as authorised by the ballot, was 30 days, and the union sought an additional 30-day extension of this period. Cape Flattery Silica Mines Pty Ltd did not object to the application.

The key legal issue before the Deputy President was whether the requirements set out in section 459(3) of the Act had been satisfied, thereby justifying the extension of the 30-day period. Section 459(3) of the Act allows for an extension of the period if the applicant for the protected action ballot applies for the extension and if the period has not previously been extended. The Australian Workers' Union argued that both conditions were fulfilled and that the period should be extended by a further 30 days.

The Deputy President concluded that the requirements of section 459(3) had indeed been met. Given that the application was made by the applicant for the protected action ballot and that the period had not been previously extended, the Deputy President was satisfied that the application should be granted. The Deputy President ordered that the 30-day period for the commencement of protected industrial action for eligible employees be extended by a further 30 days, effective from 31 May 2025.

CaseChat Overview and Summary

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