1 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 v Stowe Australia Pty Ltd (B2026/560) DEPUTY PRESIDENT WRIGHT SYDNEY, 27 MAY 2026 Application to extend the 30 day period in relation to B2026/338. Introduction [1] This matter concerns the declaration of the result of a protected action ballot PR798538 held in matter B2026/338 and declared on 24 April 2026. [2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 (the Extension Application). The 30 day period referred to in s.459(1)(d)(i) expired on 24 May 2026. [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 (b) the period has not previously been extended. [4] The CEPU 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] Stowe Australia Pty Ltd (Stowe) has objected to the Extension Application. [2026] FWC 1937 DECISION [2026] FWC 1937 2 Factual background [6] The factual background to this matter is set out in detail in my Decision granting the protected action ballot order (PABO).1 Briefly, the employees who are the subject of the Extension Application are covered by the Stowe Australia Sydney Projects Division & ETU NSW/ACT Construction Union Agreement 2022-2025 (the Agreement). On 17 December 2025, the CEPU requested that Stowe bargain with it for a replacement agreement in accordance with s.173(2A) of the FW Act. Stowe initially refused to bargain because it wanted to negotiate a multi-enterprise agreement to replace the Agreement. For this purpose, Stowe, along with ten other employers, made an application for a single interest employer authorisation pursuant to s.248 of the FW Act (SIEA Application) on 19 December 2025. The SIEA Application is listed for hearing in July 2026. [7] After making requests for bargaining meetings on 17 December 2025, 29 January 2026 and 27 March 2026 which Stowe did not agree do, the CEPU made an application for a protected action ballot order on 31 March 2026. I granted the order on 10 April 2026 after conducting a hearing on 9 April 2026. On 24 April 2026, the ballot agent declared the results of the ballot. 164 out of 176 eligible voters participated in the ballot. Although there was a small variation in relation to the responses to each of the 17 ballot questions, approximately 140 participants voted in favour of each question. [8] Since the declaration of the ballot, Stowe has agreed to bargain with the CEPU and issued a notice of employee representational rights (NERR) on 5 May 2026. Bargaining meetings have been held on 15, 19, 22 and 26 May 2026 with further bargaining meetings to take place on 29 May 2026, 2 and 5 June 2026. The CEPU and Stowe have exchanged logs of claim. To date, the CEPU and Stowe have reached agreement in relation to a number of claims but there are still matters which remain outstanding. [9] CEPU members took protected industrial action in the form of stoppages on each day from 5 to 8 May 2026 and then from 11 to 14 May 2026. On 8 May 2026, the CEPU gave notice to Stowe that its members intended to take industrial action comprising of a one hour stoppage commencing at 10:00am and a one hour stoppage commencing at 11:00am starting on 14 May 2026 and on each and every day thereafter indefinitely. On 15 May 2026, the CEPU gave notice to Stowe that its members intended to take industrial action comprising of a 24 hour stoppage commencing at 6am on 21 and 22 May 2026. [10] On 15 May 2026 Stowe agreed to provide employees with a 6% increase to the all- purpose hourly rate effective from 1 May 2026 in return for a commitment by the CEPU that it would not issue notices which would permit employees to take protected industrial action during the period from 15 May to 5 June 2026. Submissions [11] Stowe does not dispute that the pre-conditions in s.459(3) have been satisfied, but submits that as s.459(3) confers the Commission with a discretion to extend the period for taking protected industrial action, the Commission should exercise its discretion against the Extension Application because: [2026] FWC 1937 3 a) the purpose of the CEPU’s application for the PABO was to place industrial pressure on Stowe to issue the NERR and commence bargaining for a new agreement. This is the context that the ballot of relevant employees, pursuant to the PABO, was held by the relevant ballot agent. b) As Stowe has changed its position, issued a NERR in respect of the new agreement and participated in bargaining meetings, the industrial context in which the PABO was issued is entirely different from the industrial context in which the Extension Application has been made. c) Given that the industrial context between the times at which the PABO was issued and the Extension Application was made are not comparable, the Fair Work Commission (the Commission) cannot be satisfied that the results of the protected action ballot that was held pursuant to the PABO genuinely reflect the intention of the relevant employees with respect to authorising the taking of protected industrial action. d) In view of this, it would be appropriate for the Commission to exercise its discretion against the Extension Application so that, if the CEPU wishes to pursue further protected industrial action, it is required to make a new application for a protected action ballot order which would see a further protected action ballot being held to test the wishes of the relevant employees in these different circumstances. [12] The CEPU submitted that: a) Stowe’s submission simply asserts that since the protected action ballot closed on 24 April 2026, Stowe has engaged in conduct that complies with its good faith bargaining requirements. The submissions do not direct the Commission to any change in circumstances that is so significant that the Commission should disregard the views of the employees who participated in the protected action ballot. b) Stowe has not provided any evidence that employees who participated in the ballot have changed their views so substantially that the 83% who voted in favour of being able to take protected industrial action would now be less than 50%. c) Stowe has not directed the Commission to any conduct on the part of the CEPU or its members which should affect their right to take protected industrial action. d) The protected action ballot order issued by the Commission, and any subsequent extension, does not compel the employees to take protected industrial action. Rather, it provides them legal immunity if they determine to do so. e) Accordingly, Stowe’s reference to an apparent change in the bargaining landscape does not amount to evidence that the majority of employees who voted in the ballot now wish to lose the authorisation and statutory protection they obtained from voting in the ballot. As such, it would be unfair to employees to remove this statutory protection based on Stowe’s submissions. [2026] FWC 1937 4 f) It has been held that the discretion to grant the extension application should be exercised in situations where bargaining is proceeding and the granting of the extension would be consistent with the objects of the FW Act. Stowe appears to assert that bargaining is proceeding and that the parties are having productive negotiations. g) There is no suggestion that the CEPU and its members are not bargaining in good faith or are not genuinely trying to reach agreement. h) 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. i) There is no evidence before the Commission as to major changes to the composition or disposition of the relevant employees which would give rise to a need for employees to be re-balloted. [13] Both parties referred me to the decision in Transport Workers' Union of Australia,2 In that case, the Commission said that discretion to extend the 30 day period in which industrial action is authorised by a protected action ballot is wide and should be exercised having regard to the objects of the FW Act and in particular the objects of the relevant part of the FW Act in which the power to do so appears, as expressed in s.436.3 [14] Section 436 provides: Object of this Division The object of this Division 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. Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot. [15] The CEPU referred me to the decision of Deputy President Asbury (as the Vice President then was) in Australasian Meat Industry Employees Union4 which contains a useful summary of cases dealing with the Commission’s discretionary power to extend the 30 day period.5 The principles that may be derived from that summary are: • 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 FW Act as specified in s.436.6 • 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.7 • 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 [2026] FWC 1937 5 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 FW Act of establishing a fair and simple process.8 • Circumstances in which an extension has been granted are that: o parties are bargaining in good faith; o there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made;9 o parties have participated in conciliation during the original 30 day period;10 or o have refrained from taking industrial action and bargained constructively.11 [16] Stowe referred me to the Full Bench decision of EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union12 and the Full Federal Court decision in relation to the application for judicial review of that decision.13 These decisions considered whether on the proper construction of s.459(3), the Commission’s power to extend the 30 day period referred to in s.459(1)(d)(i) can be exercised on an application that is made after that period has expired. In the context of that inquiry, the Full Bench observed that it may be unfair or otherwise inappropriate to hold an employee bargaining representative strictly to the 30 day time limit in s.459(1)(d)(i) and impose upon them (and the employees they represent) the cost, delay and inconvenience of going back to scratch and making a fresh application for a new protected action ballot.14 The majority of the Full Court observed the requirement in s.459(1)(d) that to be protected, the action must commence during the 30-day period starting on the date of the declaration of the results of the ballot (or during the extended period if ordered by the Commission): seeks…to ensure that the authorisation which has been given by employees for the taking of particular industrial action remains current, in the sense that it continues to reflect the will of the majority of employees.15 [17] The majority of the Full Court endorsed the comments of the Full Bench that in many cases it will be plain that majority employee support for the taking of particular industrial action has continued beyond the 30 day period and that in those circumstances, the Commission’s discretion to extend the initial period by up to a further 30 days could sensibly be utilised.16 [18] In the application before me, I accept Stowe’s submissions that the circumstances in which the PABO was issued are different from circumstances in which the Extension Application has been made. Prior to the issuing of the PABO, Stowe had refused to bargain for a period of almost five months. During the three week period after the ballot was declared, Stowe has issued the NERR, participated in bargaining and provided employees with an interim payrise. The speed at which the parties have made progress towards reaching agreement during this three week period is impressive. However, an important context to that progress has been the taking of industrial action by CEPU members during the period from 5 to 8 May 2026 and then from 11 to 14 May 2026. Although there is no evidence before me of the number of CEPU members who took industrial action during that time, it is difficult for me to accept that it has been an ineffective strategy towards reaching agreement when considering the 6% interim payrise which was offered to employees immediately following the action. [2026] FWC 1937 6 [19] Further, if the only purpose of the PABO was to put pressure on Stowe to issue the NERR and commence bargaining, this does not explain why CEPU members participated in eight days of industrial action following the issuing of the NERR. [20] The number of employees who voted in favour of taking protected action was overwhelming. There is no evidence before me that any of these employees no longer support the taking of protected industrial action because of the changed circumstances since the ballot was declared. There is no basis for me to draw an inference that this is the case. Further, the fact that eight days of industrial action was taken after the NERR was issued and coincided with an interim payrise was provided by Stowe leads me to conclude that it is more likely than not that there continues to be a high level of support for protected industrial action amongst CEPU members given its apparent effectiveness in progressing bargaining. [21] I have taken into account these matters and also that bargaining is proceeding, the extension is consistent with s.436, and that the parties are bargaining in good faith. I have also had regard to the fact that bargaining did not commence until five months after the bargaining request was made and that the Agreement passed its nominal expiry date on 31 October 2025. Given the delays that have already taken place, it is important that the current momentum for progressing bargaining is not hindered by requiring the parties to participate in what appears to be an unnecessary fresh ballot application. [22] I am satisfied that the relevant requirements of the FW Act have been met and that the application should be granted. [23] 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. [24] This order will operate on and from 27 May 2026. DEPUTY PRESIDENT Appearances: Ms E. Strachan, Senior Legal Officer for the Applicant Mr B. Gottlieb, Legal Representative for the Respondent Hearing details: 2026 25 May [2026] FWC 1937 7 Online Printed by authority of the Commonwealth Government Printer <PR810432> 1 [2026] FWC 1252 2 [2011] FWA 1097 3 Ibid, [5] 4 [2015] FWC 2712 5 Ibid, [10]-[12] 6 National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284, [11] 7 MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 8 [2015] FWC 2712, [12] 9 National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 10 AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy [2011] FWA 4617 11 MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 12 [2013] FWCFB 2022 13 [2014] FCAFC 8 14 [2013] FWCFB 2022, [20] 15 [2014] FCAFC [8], [15] 16 Ibid, [16]