Fair Work Act 2009

s.459 - Protected action

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Application to extend the 30 day period in relation to B2025/306

• [1] This matter concerns the declaration of the result of a protected action ballot PR784875 held in matter B2025/306 and declared on 14 March 2025.

• [2] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (FW Act) to extend the 30-day period in which industrial action is authorised by the relevant protected action ballot.

• [3] 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

• [4] The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

• [5] Keolis Downer Northern Beaches Pty Ltd (KD Northern Beaches) advised the Commission that it objected to the AMWU's application on 11 April 2025. KD Northern Beaches provided an outline of submissions which stated the basis for the opposition was alleged unprotected industrial action taken by AMWU members at around 6:00am on 11 April 2025. Given the opposition, I listed a hearing via video at 3:00pm on 11 April 2025. Julie Gordon (Senior Legal Officer) represented the AMWU. Will Treglown (Human Resources Business Partner) represented KD Northern Beaches.

• [6] Vice President Asbury (who was Deputy President Asbury when the decision was issued) provided the following summary of the approach to be taken when considering whether to exercise the discretion to extend the 30-day period in Australian Meat Industry Employees Union, The [2015] FWC 2712 at [10] to [13]:

"Section 459(1) establishes a 30 day period where the right to take industrial action can be described on the basis that employees are required to "use it or lose it". Section 459(3) gives the FWC a discretionary power to extend the 30 day period. That power may be exercised in circumstances where the application for an extension is made either before or after the expiration of the original 30 day period.[1]

It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436.[2] The discretion is wide and is unconditioned by a statutory direction.[3] Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.[4]

Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made;[5] parties have participated in conciliation during the original 30 day period;[6] or have refrained from taking industrial action and bargained constructively.[7] It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.

In my view the term "extension" implicitly means that the reference point for the extension is the date upon which the first 30 day period expired, and the time for the extension runs from no later than that date, so that if a second 30 day extension is granted it includes the last day of the first 30 day period, and is a 29 day extension from that date.[8]"

• [7] There is no suggestion from KD Northern Beaches that the relevant employees have changed in composition or disposition since the ballot occurred.[9]

• [8] I accept KD Northern Beaches has identified a legitimate concern about the industrial action that was taken this morning at the Mona Vale site. Ms Gordon accepted there may have been some confusion from AMWU members this morning concerning the taking of protected industrial action, but indicated the AMWU acted urgently to resolve the confusion.

• [9] I do not consider the concerns raised by KD Northern Beaches about the conduct of AMWU members this morning is sufficient to justify me not exercising my discretion to extend the 30-day period. It appears those concerns have now been addressed by the AMWU. In the unlikely event that the conduct is repeated, KD Northern Beaches has legal options it can pursue.

• [10] I do not consider the good faith bargaining requirements are overly relevant to whether I should exercise my discretion to extend the 30-day period. There are legal avenues to address any good faith bargaining concerns. The AMWU can also only take protected action where it is genuinely trying to reach an agreement.[10] I also note Mr Treglown confirmed there have been two recent bargaining meetings and a further meeting is scheduled over the next two weeks. This indicates the parties are continuing to bargain in accordance with the requirements of the FW Act.

• [11] I am satisfied that the relevant requirements of the FW Act have been met, and that the application should be granted.

• [12] Accordingly, pursuant to section 459(3) of the FW 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.

• [13] This order will operate on and from 11 April 2025.

[1] National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O'Callaghan SDP at [11]; AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy [2011] FWA 4617 per Bartel DP at [10].

[2] National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O'Callaghan SDP at [11]

[3] Re: Transport Workers' Union of Australia [2011] FWA 1097 per Lewin C.

[4] MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.

[5] National Union of Workers v Symbion Pharmacy Services Pty Ltd op. cit.

[6] AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy op. cit.

[7] MUA v DP World Adelaide Pty Ltd op. cit.

[8] AMACSU and Others v Flinders Operating Services Pty Ltd T/as Alinta Energy op. cit.

[9] This has previously been identified as a potential reason to require a fresh ballot in Maritime Union of Australia v DP World Adelaide Pty Ltd [2010] FWA 7638.

[10] Fair Work Act 2009 (Cth) s 413(3).

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