v Cape Flattery Silica Mines Pty Ltd Summary

[2025] FWC 1500

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

Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division

Cape Flattery Silica Mines Pty Ltd

(B2025/842)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 JUNE 2025

Application to extend the 30 day period in relation to B2025/647.

This matter concerns the declaration of the result of a protected action ballot PR786311 held in matter B2025/647 and declared on 2 May 2025.

The Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division 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 2 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division, the applicant, and Cape Flattery Silica Mines Pty Ltd, the respondent, the Fair Work Commission was tasked with considering an application for the extension of a 30-day period during which industrial action is authorised by a protected action ballot. The application was made under section 459(3) of the Fair Work Act 2009, seeking to extend the period beyond its initial expiry date, as declared in ballot PR786311, which was held and declared on 2 May 2025. The application was made in relation to matter B2025/647, and no objections were raised by Cape Flattery Silica Mines Pty Ltd.

The central legal issue before the Deputy President, Hampton, was whether the statutory requirements under section 459(3) of the Fair Work Act 2009 had been satisfied to warrant an extension of the 30-day period. The applicant argued that all conditions for extension, including the timely application and the fact that the period had not previously been extended, were fulfilled. The respondent did not object to the application. Consequently, the Deputy President had to determine whether the application met the legislative criteria and if the extension should be granted to allow for additional time for potential industrial action.

The Deputy President concluded that the statutory requirements for the extension were indeed met, as the application was made within the stipulated timeframe and the period had not been extended previously. Given that no objections were raised by the respondent, and the application was compliant with the legislative provisions, the Deputy President ruled in favour of the applicant. The 30-day period for the commencement of protected industrial action was extended by an additional 30 days from the original expiry date, effective from 2 June 2025.

Pursuant to section 459(3) of the Fair Work Act 2009, the Deputy President ordered 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 Cape Flattery Silica Mines Pty Ltd be extended by a further 30 days. This extension was to operate from 2 June 2025.

v Cape Flattery Silica Mines Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established