Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union

Proposed protected action ballot of employees of Central Highlands Council

• [1] The Central Highlands Council (Central Highlands) is bargaining with its employees to make a new enterprise agreement (the proposed agreement). The proposed agreement will replace the Central Highlands Council Enterprise Agreement 2023 which reached its nominal expiry date on 30 June 2025_._ The Australian Municipal, Administrative, Clerical and Services Union (ASU) is a bargaining representative for some of the employees to be covered by the proposed enterprise agreement.
• [2] On 21 August 2025 the ASU made an application under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Central Highlands.
• [3] Central Highlands objects to the application. It says that "the request for protected action is not appropriate at this stage as the Union have not taken appropriate steps to negotiate in good faith their areas of concern with the Council". It appears Central Highlands contends that the Commission cannot be satisfied that the ASU has been, and is, genuinely trying to reach an agreement with Central Highlands, as required by s 443(1)(b) of the Act.
• [4] I conducted a hearing in relation to the application on 25 August 2025.

The requirements of s 443 of the Act

• [5] Section 443 of the Act provides the Commission must make a protected ballot order in relation to a proposed enterprise agreement if the application is made under s 437 of the Act and if the Commission is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The Commission must not make a protected action ballot order except in these circumstances. The Commission must as far as practicable, determine the application within 2 working days after it is made.
• [6] The principles to apply when considering these requirements are well settled. Those relevant to these proceedings may be summarised as follows:
• a. Whether an applicant "has been, and is, genuinely trying to reach an agreement" is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. This will frequently involve considering the extent of progress in negotiations and the steps taken by the applicant to try and reach an agreement. The Commission would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking to have included in the agreement, and to have provided a considered response to any demands made by the other side[1].
• b. The expression "genuinely trying" is concerned with the genuineness or authenticity of the trying; that is, the efforts, by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act and is not bargaining for some ulterior purpose[2].
• c. An allegation that an application for a protected action ballot order is premature does not, of itself, provide a basis for concluding that the applicant for the order has not been, or is not, genuinely trying to reach agreement. The Act envisages that protected action might be taken early in bargaining. The Commission must simply consider whether, in light of the circumstances operating at the time of its decision, the applicant has been, and is, genuinely seeking agreement[3].
• d. The question involves a temporal element. This follows from the use of the past tense ("has been") and present tense ("and is") in s 443(1)(b). The Commission must be satisfied that the applicant had been trying to reach an agreement prior to the time of determination and is continuing to do so at the time of the determination[4].
• e. The applicant bears the onus of establishing that it has been and is genuinely trying to reach an agreement[5].
• f. It is wrong to conflate the concept of genuinely trying to reach an agreement with the good faith bargaining requirements set out in s 228 of the Act. While there is a relationship between the concepts, a party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement[6].

• [7] On 22 August 2025 I advised the parties that, on the basis it appeared Central Highlands objects to the application, it would be listed for hearing at 2:00PM on 25 August 2025 and, if either party wished to rely on material during the hearing, it was to be filed by 11:00AM on that day.
• [8] Central Highlands sought to rely on a letter from Mr Stephen Mackey, Acting General Manager, dated 22 August 2025 and there was no objection by ASU that the letter be accepted in evidence as tendered. Mr Mackey was subjected to cross examination at the hearing.
• [9] The ASU sought to rely on a Declaration in support of an application for a protected action ballot order filed along with the application made by Ms Karen Tantari, organiser, dated 21 August 2025. There was no objection that this Statement be taken into evidence as tendered. Ms Tantari was not subjected to cross examination at the hearing. It also filed a copy of a log of claims document apparently sent to Central Highlands on 2 July 2025 and a copy of a document containing notes from a meeting of its members it held on 7 August 2025 recording those members' views about various responses provided by Central Highlands to the ASU claims.
• [10] The evidence as filed reveals the following picture:
  1. Central Highlands says it first initiated contact with the ASU on 27 November 2024. ASU says Central Highlands advised on 4 April 2025 that it was ready to begin bargaining subject to it being provided with a log of claims. Mr Mackey said in his evidence, which was not challenged, that there were two failed meeting attempts to commence negotiations with the Union. There was no further evidence on this matter. It seems to me that Central Highlands was desirous of bargaining commencing earlier than 4 April 2025 but bargaining did not start until after this date.
  2. Central Highlands says it had a "staff meeting" on 4 June 2025. Mr Mackey confirmed in his evidence that this was a meeting between Central Highlands and its employees about the proposed agreement.
  3. The ASU says it sent a "log of claims" to Central Highlands on 2 July 2025 and a bargaining meeting was held on 3 July 2025. The log of claims, which was tendered, contains a summary outline of what appear to be each of the matters ASU members propose be included in the proposed agreement.
  4. Apparently in relation to the meeting held on 3 July 2025, Mr Mackey said that "discussions took place on matters they felt needed to be addressed. Some of these were resolved on the day and others needing a response as to council's views were forwarded by email to the Union once additional information we requested was received from the Union". This largely accords with Ms Tantari's evidence, who said that after the meeting a request for further information was made by Central Highlands and this information provided by the ASU on 20 July 2025.
  5. At some point thereafter Central Highlands sent the ASU what Ms Tantari described as its "offer" or what Mr Mackey described as its "response".
  6. Ms Tantari said there was an ASU members meeting on 7 August 2025 to consider the offer at which time a decision was made to file an application for a protected action ballot to be held. Notes from this meeting were tendered. The notes appear to show that during the meeting, each of the ASU claims and the Central Highlands' response was discussed and the members made decisions to "agree" with Central Highlands' position, not agree (or "keep our claim"), "drop out claim" or propose a counter offer.
• [11] Mr Mackey said "another meeting was arranged by the Union but unfortunately organised without noting the responses they had received from council on the matters previously raised". As I understand it, Mr Mackey thinks that the ASU should provide a written response to Central Highlands' bargaining position.
  1. Ms Tantari said that on 18 August 2025 the ASU wrote to Central Highlands to request another bargaining meeting in order for the negotiations to continue. She said there has been no response to this correspondence. Mr Mackey accepted this is so - again - it appears Mr Mackey considers that ASU should provide Central Highlands with a written response, and ASU would prefer to provide its response in a meeting.

• [12] The Union argues that the form and content of the application meets the requirements of s 437 of the Act. It also submits it has and is genuinely attempting to reach an agreement with Central Highlands. In this regard it relies on the evidence of Ms Tantari, with particular reference to the ASU's responsiveness to requests for information, its willingness to meet and its members demonstrated willingness to engage in bargaining, evidenced by the material tendered by the members meeting on 7 August 2025.
• [13] Central Highlands describes the application as "not appropriate at this stage" and on this basis appears to contend it is premature. It also says ASU "have not taken appropriate steps to negotiate in good faith their areas of concern with Council" and perhaps simultaneously argues both a failure to genuinely try to reach an agreement and a failure to bargain in good faith.

• [14] I am not persuaded by Central Highland's contentions. It is plainly frustrated that bargaining did not commence earlier, is not progressing more quickly and that ASU has not yet provided it with a written response to its offer. However, there is no evidence before me that ASU's efforts to try to reach agreement are with some ulterior motive in mind, or are otherwise not genuine and, to the extent Central Highlands asks me to infer a lack of genuineness because of timing or process issues, I am not prepared to do so. I note in particular the evidence as to the ASU members meeting on 7 August 2025 evinces a genuine willingness to engage with Central Highlands' response to ASU claims - agree with some but not all; drop some claims and propose counter offers on others. I note in particular that on 18 August 2025 ASU requested in writing for another bargaining meeting to occur. Having outlined its bargaining proposals ("log of claims"), responded to requests from Central Highlands for more information, considered, in conjunction with its members, Central Highlands' "offer" and sought a further bargaining meeting to occur, I am satisfied ASU has and is genuinely trying to reach an agreement with Central Highlands. I am further satisfied that the application has been made under s 437 of the Act and the requirements of s 443(1) have been met.
• [15] 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.
• [16] 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 8 September 2025.[7] This also establishes the ballot period for the purpose of s 448A(2) of the Act.
• [17] An Order has been separately issued in PR790996.
• [18] This matter will be listed for a s 448A compulsory conciliation conference. The Member who lists it 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] Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 [31] - [32]; Esso Australia Pty Ltd v AMWU & Ors [2015] FWCFB 210 [35], [57] (Esso)

[2] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nepean Power Pty Ltd [2025] FWC 2230 [16]; J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963[89]; Kuiper Australia Pty Ltd v The Australian Workers' Union [2024] FWCFB 378 [26] - [30] (Kuiper)

[4] Coles Supermarkets (Australia) Pty Ltd v Australasian Meat Industry Employees Union [2015] FWCFB 379 [45]

[5] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Kraft Foods Limited [2010] FWA 4404[34]

[7] 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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