s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of MODEC Management Services Pte Ltd

• [1] This is an application by the Australian Maritime Officers' Union (AMOU 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 MODEC Management Services Pte Ltd (MODEC or Employer).

• [2] I note that the Construction, Forestry and Maritime Employees Union and the Australian Workers' Union have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1] This was previously granted on 9 April 2025.

• [3] On 30 April 2025, MODEC advised that it did not object to the application subject to there being an extended notice period of "five calendar days" in relation the proposed forms of industrial action, noting that this would be consistent with the outcome of the related matter. The AMOU, in effect, accepted that there were relevant exceptional circumstances and agreed to that amendment. The Employer also requested the ballot period be a minimum of 10 working days, which the AMOU adopted.

• [4] I observe that one of the original ballot questions in Clause 5 was deleted from the proposed order following statutory matters being raised by the Commission. In correspondence, the AMOU accepted the proposed question "did not aim to ban, restrict, limit or delay the performance of work" and was therefore not capable of constituting protected industrial action. The proposed ballot question could not therefore be included in the Order.[2] The AMOU also stated that "AMOU members may proceed with these actions without putting them to ballot" and sought the Commission's acceptance of that proposition. That is not a matter for the Commission to determine as part of an application of this kind and the parties should seek their own advice on that issue.

• [5] In the circumstances, I have decided to amend the application to reflect the consent position reached, delete question 20, and have otherwise determined the matter on the papers without holding a hearing.

• [6] On the basis of the material before me, including the declaration of Amy Conwell, Industrial Officer, setting out the steps taken by the AMOU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with MODEC, 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.

• [7] The ballot is to be conducted by Fair Vote Service Pty Ltd (FairVote). FairVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [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 15 May 2025.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [9] Pursuant to section 443(5) of the Act, I am satisfied that there are relevant exceptional circumstances justifying the minimum 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) calendar days, with an absolute minimum of three (3) working days, as the 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. In this regard, I observe that the additional caveat of 3 working days in the clause is required as with a combination of weekends and public holidays, 5 calendar days may not always meet the absolute minimum requirement of 3 working days established by s.414(2) of the Act. This is also consistent with the approach adopted in the related matter that informed the consent position.

• [10] An Order has been separately issued in PR786879.

• [11] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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.

[1] B2025/611. CFMEU & AWU v MODEC Management Services Pte Ltd [2025] FWC 998.

[3] This is, in effect, 10 working days working from the making of the Order and was the period sought in the amended application.

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