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 B2026/3.

[1] This matter concerns the declaration of the result of a protected action ballot PR795539 held in matter B2026/3 and declared on 27 January 2026.

[2] The Australian Workers' Union (AWU) 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.

[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 from the expiry of the original 30 days.

[5] Crown Equipment Pty Limited (Crown Equipment) has advised the Commission that it objects to the form of this application on the basis of an error in the lodgement document itself. That error, which has been acknowledged by the AWU, stated that the application was made within the 30-day period starting from the declaration of results. Crown Equipment also contends that this has consequences for any extension that might be granted. I deal with that aspect below.

[6] I do not consider that it is necessary for the AWU to relodge their application. Under s.586 of the Act, I have amended the application to correct the relevant answer.

• [7] As stated earlier, this application was made after the expiry of the 'first' 30-day period. The Commission may accept and consider an application made under s.459(3) at that time. The Full Federal Court in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union[1] confirmed that this was permissible;[2] however, the Commission may only provide a single extension of the original 30 day period for a further period of up to 30 days.[3] That is, a total of 60 days from the declaration of the ballot results. Further, any industrial action taken in the period between the expiry of the first 30 days and the date that the extension is granted, may not be protected.[4]

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

[9] 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.

[10] This order will operate on and from 3 March 2026.

[1] [2014] FCAFC 8 (per North and Bromberg JJ).

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