Fair Work Act 2009

s.437 - Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Proposed protected action ballot of employees of Fonterra Australia Pty Ltd

• [1] This decision concerns an application made on 10 July 2025 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers' Union (AMWU) under s 437 of the Fair Work Act 2009 (Act). The application asks the Commission to make a protected action ballot order in relation to employees of Fonterra Australia Pty Ltd (Fonterra). Fonterra advised the Commission that it objected to the application on the grounds that the proposed ballot questions were vague, that the proposed industrial action gave rise to health and safety concerns, that the unions had not consulted its members about the application, and that the unions were not genuinely trying to reach agreement. Section 441 of the Act provides that, as far as practicable, an application of this kind must be determined within two working days after it is made. I heard the application at 4.00pm this afternoon.

• [2] The application was accompanied by F34B declarations made by Chris Clarke, CEPU state secretary, and Michael Wickham, AMWU branch organiser. The employees to be balloted are those who will be covered by a proposed enterprise agreement and are represented by the CEPU and the AMWU. The employees in question are maintenance employees of Fonterra currently covered by the Fonterra - Spreyton and Wynyard site (Maintenance) Agreement 2022 (2022 Agreement). The nominal expiry date of the 2022 Agreement was 30 June 2025. The proposed ballot agent is the Australian Electoral Commission (AEC). A draft order was attached to the application. The proposed ballot would ask employees whether they authorise 32 forms of industrial action for the purposes of reaching an enterprise agreement with the company.

• [3] The declarations state that the 'notification time' for the proposed agreement was 3 April 2025, and describe the steps taken by the unions to try to reach an agreement with Fonterra. The declarations state that the unions have been participating in fortnightly bargaining meetings with the company since 20 May 2025, at which the parties' claims have been exchanged, discussed, and considered. They state that outstanding claims relate to wages, personal leave, and the shutdown allowance, and that the unions and their members have been willing to discuss all claims with the company and have considered Fonterra's proposals.

• [4] At the hearing, Fonterra spoke to a written submission that it had submitted to the Commission in which it outlined the basis for each of its four objections. The unions maintained that there was no substance to any of the objections and relied on a written submission filed in response to Fonterra's submission.

• [5] Fonterra's first objection was that the ballot questions were 'excessively broad and vague', encompassing 32 distinct forms of industrial action, many described in general terms and without specifying the scope, duration, or operational impact of the action, such that employees would not be able to make an informed decision about whether to authorise the action. I reject this contention. Section 437(3)(b) requires an application for a protected action ballot order to specify the questions to be put to the employees who will be balloted, including the 'nature of the proposed industrial action'. The application does this. Each of the proposed items of industrial action describes the nature of that action. Each relates to a stoppage of work, or a ban on work, of different kinds and periods. The fact that some of the periods are stated to be 'indefinite' does not reflect any failure to specify the nature of the action. As the unions rightly point out, the purpose of the ballot is to determine which forms of action employees endorse. The particular action that will occur must be the subject of a notice under s 414 of the Act. Further details can be expected at that stage. The fact that there are 32 different forms of proposed action is irrelevant, so too is the fact that only a single question is asked rather than 32 questions seeking separate approval for each item of proposed action. Further, there is no requirement for the questions to address the consequences of the action.

• [6] The second objection was that the proposed bans on resetting electrical equipment, HV switching, call backs and use of mobile phones could compromise the safe operation and maintenance of machinery and equipment, particularly in emergency situations. Fonterra said that mobile phones were the primary form of contact to relay critical information in emergencies, and that the absence of critical functions could pose significant risks to employees who rely on properly functioning equipment. However, there is no basis for the Commission to refuse a protected action ballot order on the ground that the industrial action might give rise to safety concerns. Rather, the Commission must make an order if it is satisfied of the matters in s 443. There is no discretion. In any event, I note that the unions have advised the company that they will provide exemptions for genuine emergencies or critical health and safety functions. Further, I would agree with the unions that the safety matters referred to by the company are a matter of speculation at this stage.

• [7] Fonterra's third objection was that it did not believe that the unions had consulted with their members prior to making the application. The unions deny this. It seems improbable to me that the unions would not have consulted their members before making the application, because no union wants to make a ballot application, only for it to be rejected by its members at the vote. But even if the company is correct, it is not a valid objection to the application. There is no requirement that the unions consult their members prior to making an application.

• [8] Finally, the company submitted that in all the circumstances the Commission could not be satisfied that the CEPU and the AMWU had been and were genuinely trying to reach agreement with the company, and that the precondition for the issuance of a protected action ballot order in s 443(1)(b) had not been met. It said that only yesterday it had provided an updated offer and that the parties had not yet had an opportunity to review and consider it. Fonterra said that the application was therefore premature. I reject this argument also. Bargaining has been underway since May. There have been numerous meetings to discuss a new agreement. It is plain that the CEPU and the AMWU want to reach an agreement with the employer and that they have been, and are, genuinely trying to do so. There is no other purpose or agenda at play. There is no requirement that the company's most recent offer be discussed before the application is made.

• [9] On the basis of the material before me, I am satisfied that there is a notification time in relation to the proposed agreement, that a valid application has been made, and that the CEPU and AMWU have been, and are, genuinely trying to reach an agreement with Fonterra. I note that the restriction in s 438 as to when applications may be made is not applicable. I am satisfied that within 24 hours after making the application the unions gave a copy of the application to Fonterra and the proposed ballot agent (see s 440). As I am satisfied that the requirements of s 443 have been met, I am required by s 443 to make a protected action ballot order in relation to the proposed agreement.

• [10] The ballot will be conducted by the AEC. For the purposes of s 443(3)(c), I determine that the date by which voting in the protected action ballot closes will be Monday 11 August 2025, which is 31 days after the date of the order I will make. This also establishes the ballot period for the purpose of s 448A(2) of the Act. The protected action ballot order is issued separately in PR789176.

• [11] A further order will be issued shortly under s 448A requiring the attendance of all bargaining representatives at a conciliation conference, together with directions to ensure that the parties attend the conference ready to conduct meaningful negotiations.

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