s.459 - Application to extend the 30-day period in which industrial action is authorised by protected action ballot

Application to extend the 30-day period in relation to B2025/772

• [1] This matter concerns the declaration of the result of a protected action ballot PR787263 held in matter B2025/772 and declared on 27 May 2025.

• [2] The Transport Workers' Union of Australia SA/NT Branch ("the TWU") has made an application pursuant to s 459(3) of the Fair Work Act 2009 ("the 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] Trident Services Security Pty Ltd ("Trident") has advised the Commission it objects to this application on the basis that the TWU has not been bargaining in good faith.

• [6] The United Workers' Union is a bargaining representative for the proposed agreement, and entered an appearance at the hearing, without expressing a position as to the application.

• [7] I am satisfied that the relevant requirements of the Act have been met, enlivening the discretion to grant the extension.

• [8] The discretion conferred on the Commission under s 459(3) is to be exercised having regard to the evident statutory purpose of the provision, read in the context of Part 3-3 and the Act as a whole, and taking into account the circumstances of the relevant application. I note that the object of Division 8 of Part 3-3, in which s 459(3) appears, is to "establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement."

• [9] I have considered the parties' submissions. No party led evidence, but the TWU and Trident filed documents and made representations as to various factual matters in their submissions. I am able to take into account the uncontested representations as to fact,[1] and I have done so in making this decision.

• [10] Having considered the materials before me, I find that:

(b) there has been no delay between the expiry of the original 30-day period and the application for an extension being made, given it was made the following day; and

(c) no industrial action has been taken during the 30-day period.

• [11] The basis for Trident's submission that the TWU has not been bargaining in good faith is that:

(a) the TWU misunderstood the effect of a particular provision, which the parties referred to as "the day span" provision;

(b) the TWU had made a new claim at a late stage in the process; and

(c) the TWU had withheld information in relation to the TWU's view that workers at one of Trident's sites, Sunshine Coast Airport, had been underpaid, an issue relevant to the construction of the day span provision because the agreement in force at Sunshine Coast Airport had a day span provision that was no different.

• [12] The TWU argued that it had been bargaining in good faith, and that:

(a) it and Trident had disagreed on the proper construction of the day span provision;

(b) its new claim had been in response to a proposal by Trident to change the language of the day span provision; and

(c) it had not withheld information - once it was on notice about the issue at Sunshine Coast Airport, it had done 'due diligence' by making inquiries about the issue, and it had then provided information to Trident.

• [13] Trident's view was that its proposal to amend the day span provision did not involve any substantive change to the effect of that provision, but was to clarify the provision's intended operation. Trident had commenced a vote on the proposed agreement, which it stopped to deal with the issue in relation to the day span provision. It said this was not to be taken as an intention to negotiate further but to deal with a misunderstanding.

• [14] To be clear I make no finding as to the construction of the day span provision, or any claim of underpayment at Sunshine Coast Airport. These issues are considered to the extent relevant to whether the TWU had been bargaining in good faith, an issue that is in turn relevant to the exercise of the discretion in these proceedings.

• [15] It is not necessary for me to resolve the issue of whether the TWU and Trident were simply at odds about the effect of the day span provision, or whether the TWU misapprehended its effect, as Trident contends. Even if the TWU's construction was incorrect, making mistakes does not of itself constitute a failure to bargain in good faith. Negotiating parties are human.

• [16] I accept that Trident did not consider that it was bargaining for substantive change when it made a claim for revised language for the day span provision. But Trident's subjective view in that regard does not render the TWU's conduct, in responding with its own claim, unfair. To bargain in good faith, parties are expected consider and respond to each other's proposals. Parties are not required to concede or agree. Responding might involve making counter-proposals.

• [17] Failing to disclose relevant information, other than confidential or commercially sensitive information, in a timely manner can constitute a failure to bargain in good faith. It has not been established that the TWU withheld information.

• [18] In the circumstances I do not accept that the TWU has not been bargaining in good faith.

• [19] Trident made submissions about the effect that industrial action would have on its business, its clients, and on the travelling public. It referred to the provisions regarding suspending or terminating industrial action. The scheme of the Act provides for protected industrial action, and for suspension or termination of it. The object of the Act, in section 3, explicitly contemplates the provision of clear rules for industrial action. Any person with standing to make application for suspension or termination of protected action will be at liberty to do so and can make their case according to those relevant statutory provisions.

• [20] It is clear that employees have expressed their desire to engage in protected industrial action by the ballot held previously. As has been pointed out in other decisions of this Commission, if the Commission is too restrictive in granting extensions of the period in which industrial action is authorised, that will give rise to a perverse incentive for workers to take industrial action in the first thirty days so as not to lose the opportunity to take it on a protected basis. The TWU made this point in their submissions, relying on MUA v DP World Adelaide.[2] A similar point has been made in other decisions since.[3] Avoiding the creation of that perverse incentive is in my view consistent with the object of the Fair Work Act.

• [21] In the circumstances having weighed the material before the Commission, I consider that the discretion to extend the period should be exercised in favour of doing so, and that the application should be granted.

• [22] 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.

• [23] This order will operate on and from 26 June 2025.

[1] R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] FCA 50, 113 CLR 228 at 243 per Barwick CJ; Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.

[2] [2010] FWA 7638.

[3] Such as Health Services Union of Australia Victoria No 1 Branch v Clinical Laboratories Pty Ltd [2025] FWC 826, citing Australian Manufacturing Workers' Union v Mulgrave Central Mill Company Ltd [2016] FWC 4976 [9] - [10].

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