v The Smith's Snackfood Company Pty Ltd

[2025] FWC 1258

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

The Smith's Snackfood Company Pty Ltd

(B2025/737)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 MAY 2025

Application to extend the 30 day period in relation to B2025/497.

This matter concerns the declaration of the result of a protected action ballot PR785436 held in matter B2025/497 and declared on 2 April 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.

The Smith's Snackfood Company Pty Ltd has advised the Commission it has no 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 5 May 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to extend the authorised period for industrial action under a protected action ballot. This ballot, PR785436, was held and declared on 2 April 2025 in relation to matter B2025/497. The application sought to extend the 30-day period during which industrial action is authorised by the protected action ballot, as per section 459(3) of the Fair Work Act 2009. The respondent, The Smith's Snackfood Company Pty Ltd, did not object to the application.

The legal issues before the court involved interpreting and applying section 459(3) of the Fair Work Act 2009, which allows for an extension of the 30-day period for protected industrial action under certain conditions. The key question was whether the applicant met the statutory requirements for an extension, specifically whether the period had not previously been extended and if the applicant had applied to the Fair Work Commission. The Smith's Snackfood Company Pty Ltd's lack of objection was also a significant factor.

In examining the application, the Deputy President found that the statutory requirements had been fulfilled. The protected action ballot period had not been extended before, and the applicant had made the necessary application to the Commission. Given the respondent's lack of objection, the Deputy President concluded that the application should be granted. The decision was made to extend the 30-day period for the commencement of protected industrial action by a further 30 days, effective from 5 May 2025. This extension ensures that eligible employees can still take industrial action if the union and the employer do not reach a resolution within the extended period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established