s.437 - Protected action

Australian Municipal, Administrative, Clerical and Services Union

Proposed protected action ballot of employees of Brophy Family and Youth Services Incorporated

• [1] This decision concerns an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Brophy Family and Youth Services Incorporated (Brophy).

• [2] On 14 July 2025, after a hearing, I made a PABO (PR789456) determining the ASU application. My reasons for doing so are as follows.

• [3] The ASU is a bargaining representative in respect of a proposed enterprise agreement to be made between Brophy and certain of its employees. Brophy agreed to commence bargaining in about September 2023.

• [4] The ASU sought the making of a PABO which specifies twenty-five forms of what it submits constitutes proposed industrial action.

• [5] Brophy objected to two of the ASU's proposed forms of industrial action. The impugned forms of action were respectively forms 3 and 8 of Schedule A to the application and were in the following terms:

3. Interrupting or stopping work to hand out union flyers to service users, staff and or other members of the public.

8. Interrupting or stopping work for the purpose of speaking to the media and/or public about the EA campaign.

• [6] A hearing in relation to the application was held on 14 July 2025. The ASU was represented by Deanna Predic (Industrial Officer) and Brophy was represented by Sascha Cook (Director, Legal) of the Service Industry Advisory Group (SIAG). SIAG is the bargaining representative for Brophy.

• [7] At the hearing, the ASU tendered into evidence a Form F34B Declaration of Clay O'Brien (Lead Organiser).

• [8] During the course of the hearing, the ASU amended form 3 to add the underlined text such that it read as follows:

3. Interrupting or stopping work to hand out union flyers about the EA campaign to service users, staff and or other members of the public.

• [9] Brophy's objection to forms 3 and 8 was set out in an outline of submission emailed to my Chambers by SIAG on 14 July 2025. The substance of the objection was that all the words in form 3 and 8 after "Interrupting or stopping work" did not constitute "industrial action" within the meaning of a s 19 of the Act and consequently could not form part of a PABO.

• [10] I consider that proposed form 3 and 8 are in permissible terms to include in a PABO.

• [11] In that regard, I refer to the decision in ASU v Mornington Peninsula Shire Council [2017] FWCFB 470 ('ASU v Mornington') in which a Full Bench considered an objection by the employer to questions in a PABO. One of the questions (question 2) sought authority for action which entailed employees interrupting work for the purpose of including in each email sent a statement explaining why employees were taking industrial action. The employer objected to question 2, amongst others, on the basis that the proposed action was not industrial action. In rejecting the objection, the Full Bench relevantly said as follows at [27]:

[27] We consider that the action for which authorisation is sought in 2 is the action of "interrupting work periodically, over an indefinite period or for specified periods". That which follows merely describes conduct in which an employee will engage whilst interrupting his or her work. Viewed in this way, the action is quintessentially industrial action as defined. The activity in which an employee will engage during the interruption of work sets the period or duration of the industrial action, being the interruption to the work. That is, the interruption will occur for the period of time that it takes an employee to include the statement in a relevant email or emails that forms part of the work the employee normally performs before sending it to them. The activity also has the effect of delineating the nature of the interruption to work that will be authorised (for the purpose of typing or retyping the statement) from an interruption to work for another purpose that will not be authorised.

• [12] In the present matter, forms 3 and 8 both specify "[i]nterrupting or stopping work". As in ASU v Mornington Peninsula, I regard the text which follows "interrupting or stopping work" as setting the duration of the interruption or stoppage, being the time it takes to hand out flyers about the EA campaign or to speak to media or public about the EA campaign. Furthermore, as in ASU v Mornington Peninsula, the impugned text delineates the nature of the interruption or stoppage to work that will be authorised ie for the purpose of handing out flyers about the EA campaign or speaking to media or public about the EA campaign. Therefore, I am satisfied proposed form 3 and 8 are in permissible terms to include in a PABO, as the action of "[i]nterrupting or stopping work" clearly constitutes industrial action within the meaning of s 19 of the Act.

• [13] Brophy raised an alternative objection in its emailed outline to proposed form 3 and 8, being that that they could not be considered to be "employee claim action" within the meaning of s 409 of the Act as they could not be regarded as being done "for the purpose of supporting or advancing claims in relation to the agreement" but rather were directed to the purpose of public information and campaigning. In the course of Ms Cook's oral submissions on behalf of Brophy, it became apparent that this submission was substantially pressed only in respect of form 3 in circumstances, where the original text did not confine the subject of the flyers to "about the EA campaign".

• [14] Consequently, the ASU amended form 3 as set out in paragraph [8] above. In light of this amendment, Brophy did not press the alternative objection based on s 409 of the Act.

• [15] In these circumstances, I was satisfied that proposed form 3 and 8 could be included in the PABO.

• [16] Furthermore, on the basis of the material before me, including the declaration of Mr O'Brien, setting out the steps taken by the ASU in bargaining with Brophy, I am satisfied that the ASU has been, and is, genuinely trying to reach agreement with Brophy. I am also satisfied that there is a notification time in relation to the proposed agreement and that all of the other requirements in s.443(1) of the Act have been met.

• [17] 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.

• [18] 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 28 July 2025.[1]This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [19] An Order has been separately issued in PR789456.

• [20] In accordance with s.448A of the Act, a compulsory conciliation conference will be conducted by the Commission on or before 28 July 2025. The Commission will issue an Order requiring the attendance of all bargaining representatives for 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.

S Cook, of the Service Industry Advisory Group, for the Respondent

[1] This is, in effect, 14 calendar days from the making of the Order and was the period sought in the application.

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