Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Capital Territory (ACT Education Directorate)

Proposed protected action ballot of employees of Australian Capital Territory (ACT Education Directorate) - non-AEC ballot agent electronic voting

[1] This is an application by the Australian Education Union (AEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Australian Capital Territory (ACT Education Directorate) (ACT-ED or Employer).

• [2] I note that the AEU[1] has made a separate application for a protected action ballot order in relation to a different proposed enterprise agreement with ACT-ED.

[3] On 2 April 2026, the Commission was advised that the Employer, in effect, did not object to the Application, however, it reserved their right to raise safety concerns connected with ballot questions (1) and (2) at a later date. The parties also agreed for the AEU to provide an extended period of notice for the taking of proposed protected industrial action. The Employer also raised a number of drafting issues with the proposed order and these were accommodated by the Applicant with the exception of 2 proposals that were left to the Commission to consider.

[4] In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, including the declaration of Patrick Judge, Branch Secretary, setting out the steps taken by the AEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with ACT-ED, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

[6] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

[7] Pursuant to section 443(5) of the Act, I am satisfied that there are relevant exceptional circumstances justifying the period of written notice referred to in section 414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified five (5) working days as the minimum period of written notice required in respect of the industrial action taken by employees arising from the ballot questions in clause 5 of the Order.

• [8] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 1 May 2026.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[9] In terms of the 2 drafting proposals that have not been reflected into the amended application, I have not adopted them on the basis that the normal orders of the Commission have an established meaning, and it is not necessary to adopt these proposals. With respect to the proposal to introduce the word "in writing" to order 14.2, the agent will always provide a written report and the use of that term in a single clause might create uncertainty about the many other requirements, which must also be undertaken in writing.

[10] An Order has been separately issued in PR798368.

[11] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[2] This is, in effect, 17 working days from the making of the Order and was the date sought in the application.

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