s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union

Proposed protected action ballot of employees of Derwent Valley Council

• [1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU 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 Derwent Valley Council (Derwent Council or Employer).

• [2] On 3 July 2025, the Commission was advised that the Employer, in effect, objected to the Application on the following grounds:
  • There should be certain exemptions from the Industrial Action contemplated in several of the proposed questions in clause 5 of the proposed order on grounds that the action would pose a public/community safety risk, and that the proposed action would cause "damage to property or vandalism";
  • There were factual errors in the Form F34B, although Derwent Council acknowledged this was not a consideration for the FWC in making the Order; and
  • It is and remains genuine in the bargaining process.

• [3] I observe that Derwent Council did clarify certain aspects of the negotiations which do not impact upon compliance with the statutory requirements to make the proposed order.

• [4] The ASU provided an amended draft order and application to correct an inconsistency in the date the ballot is to close, and to include a preamble to the ballot questions in clause 5 of the Order. The ASU did not agree to the proposed safety exemptions.

• [5] Neither party sought a hearing. In those circumstances and noting the nature of the objections raised, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing. I have had regard to the position advanced by Derwent Council and the other material before the Commission in making my decision.

• [6] Section 437 of the Act provides as follows:

"437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and

(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.

Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

(6) The application must be accompanied by any documents and other information prescribed by the regulations."

• [7] Section 443 of the Act provides:

"443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC 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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;

(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable."

• [8] I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter and do not arise from the contested aspect. Further, compliance with the matters raised in the provisions above is also not in dispute.
• [9] The seeking of a PABO is part of the bargaining regime of the Act. The scheme of the Act is outlined in various decisions of the Commission including in John Holland v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and The Australian Workers' Union[1] and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.[2]

• [10] The taking of protected industrial action by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement.

• [11] Under the Act, in this case the ASU must demonstrate that it has met (and where relevant continues to meet) all of the statutory requirements. There is no dispute that the ASU was entitled to bring the application, and a valid application has been made under s.437 of the Act. The substantive requirement that must be met is whether the ASU has been and is genuinely trying to reach an agreement with the employer - s.443(1)(b) of the Act.

• [12] The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has also previously been summarised, in effect, by the Full Bench in Esso Australia Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union.[3] This includes, as relevant to this matter:

• • While there is a relationship between the good faith bargaining requirements in s.228 of the Act and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.[4]
• • The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.[5] The Commission should have regard to all of the relevant facts and circumstances of the particular case.[6]
• • It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.[7]
• • The reference to the Commission being 'satisfied' means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant union. The expression 'has been, and is', imports temporal considerations. The Commission's attention is thereby directed to the applicant's prior conduct at the time the application for a protected action ballot order is determined. Given the context, the reference to 'an agreement' is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the Act.[8]

• [13] The expression "genuinely trying" has also been taken to be 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.[9]

• [14] The evidence before the Commission demonstrates the history of the bargaining, the series of bargaining meetings that have been conducted and some more recent developments. This evidence also generally supports the notion that the ASU has been and is genuinely trying to reach an agreement with Derwent Council. It has also meaningfully engaged and continues to engage with the bargaining process with the genuine objective of reaching an agreement. It also remains committed to negotiating a new enterprise agreement with the Employer and its actions confirm that it is doing so genuinely.

• [15] To the extent that Derwent Council faintly raises the notion that the ASU may not be meeting the good faith bargaining requirements of the Act,[10] this has not been made out. In any event, I have taken into account the concerns that are directly relevant to the determination of the present matter, where supported by any evidence.[11] In that regard, I observe that there is no requirement that the bargaining be exhausted before an application of this kind is made. Further, a PABO application does not stop the bargaining, and the good faith bargaining obligations remain, including that the parties must continue to bargain.

• [16] I would be open to the suggestion that progress in bargaining for a new enterprise agreement in this matter remains possible without recourse to protected industrial action. However, this is not the test for a PABO to be issued and protected industrial action as part of bargaining, provided that the various statutory requirements have been met, is part of the scheme of the Act.

• [17] I find that the ASU has met the requirements of s.443(1)(b) of the Act.

• [18] On the basis of the material before me, including the declaration of Samantha Batchelor, ASU Tasmanian Coordinator, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Derwent Council, 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.

• [19] In relation to the asserted public safety concerns, I would accept that depending upon the precise context and the form, duration and nature of industrial action, such concerns may arise in this enterprise. However, no evidentiary basis has been provided by Derwent Council that would enable that assessment to be made. Further and importantly in relation to this aspect, it is also necessary to understand the scheme of the Act as outlined earlier.

• [20] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,[12] whether the action is notified in accordance with the requirements of the Act,[13] and whether it is industrial action within the meaning of the Act.[14] Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population, or of part of it or causes significant damage to the Australian economy, or an important part of it,[15] or causes significant economic harm.[16] Industrial action that is not protected industrial action may be prevented.[17]

• [21] Accordingly, although some of the questions (the proposed industrial action) are not supported by the Employer, the objection about the potential impact of the proposed industrial action is not presently relevant. I observe that the Commission does not, in determining a PABO application, approve or disapprove of the particular proposed forms of industrial action beyond consideration of the ballot questions required by s.443(3)(d) of the Act. Further, and without making any assessment as to whether this has application here, I also observe that there are some limitations on the immunity arising from protected industrial action in s.415 of the Act. On that basis, and given that s.443(2) does not apply, I was obliged by the Act to issue the Order.

• [22] The ballot is to be conducted by the Australian Electoral Commission (AEC).

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

• [24] An Order has been separately issued in PR788896.

• [25] 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 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.

[1] [2010] FWAFB 526.

[2] [2012] FCAFC 53.

[3] [2015] FWCFB 210.

[5] Ibid at [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia [2009] FWAFB 368 (Total Marine).

[7] Ibid at [35] - but qualifying a further statement made in Total Marine.

[9] J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 at [89] and Kuiper at [26] to [30].

[11] Noting that the two concepts are related but should not be conflated.

[12] Sections 437, 408 and 409 of the Act.

[18] This is, in effect, 30 working days from the making of the Order, which is the minimum period required by the AEC.

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