v Tomago Aluminium Company Pty Limited

[2025] FWC 950

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

Tomago Aluminium Company Pty Limited

(B2025/585)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 3 APRIL 2025

Application to extend the 30 day period in relation to B2025/478.

This matter concerns the declaration of the result of a protected action ballot PR785229 held in matter B2025/478 and declared on 28 March 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.

Tomago Aluminium Company Pty Limited 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 27 April 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, in the case of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Tomago Aluminium Company Pty Limited, considered an application to extend the period during which industrial action could be authorised by a protected action ballot. The application was filed under section 459 of the Fair Work Act 2009. The Union sought to extend the 30-day period for the commencement of protected industrial action, which was initially authorised by a ballot held and declared on 28 March 2025.

The legal issue before the Commission was whether the 30-day period could be extended as per section 459(3) of the Act, which allows for an extension if certain conditions are met. The Union argued that all requirements were fulfilled, and therefore, the period should be extended by an additional 30 days. Tomago Aluminium Company Pty Limited did not oppose the application. The Commission had to determine if the statutory criteria for the extension were satisfied and whether the extension was appropriate in this case.

The Commission found that the Union's application met the criteria set out in the Act, specifically that the application was made by an applicant for the protected action ballot order and that the period had not been extended previously. Consequently, the Deputy President concluded that the application should be granted, and the 30-day period was extended by an additional 30 days. The extended period would commence on 27 April 2025, providing the authorised employees additional time to undertake protected industrial action.

In conclusion, the Fair Work Commission granted the application and extended the 30-day period for the commencement of protected industrial action by a further 30 days, effective from 27 April 2025. This decision was based on the Union's compliance with the statutory requirements and the absence of opposition from Tomago Aluminium Company Pty Limited.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established