s.437 - Application for a protected action ballot order

Australian Federated Union of Locomotive Employees

Proposed protected action ballot of employees of Pacific National (Queensland Coal) Pty Ltd - non-AEC ballot agent electronic voting

• [1] This is an application by the Australian Federated Union of Locomotive Employees (AFULE 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 Pacific National (Queensland Coal) Pty Ltd (Pacific National or Employer).

• [2] I note that the Australian Rail, Tram and Bus Industry Union (ARTBIU) has made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

• [3] On 10 October 2025, the Commission was advised that the Employer did not object to the Application.

• [4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

• [5] On the basis of the material before me, including the declaration of Thomas James O'Rourke, Organiser, setting out the steps taken by the AFULE in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Pacific National, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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] 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 24 October 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] Pursuant to s.443(5) of the Act, I am satisfied that there are relevant exceptional circumstances justifying the period of written notice referred to in s.414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified five (5) calendar 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. Due to the operation of s.414(2)(a) of the Act, the Applicant must provide at least three (3) working days' notice of industrial action in the event the notice period elapses over a recognised public holiday.

• [9] An Order has been separately issued in PR792540.

• [10] 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. To the extent that this matter involves any additional bargaining representatives, that Member will issue an Order requiring their attendance 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, 10 working days from the making of the Order and was the period sought in the application.

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