s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union

Proposed protected action ballot of employees of Melbourne City Mission - non-AEC ballot electronic voting

[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 (PABO) in relation to certain employees of Melbourne City Mission (MCM or Employer).

[2] On 2 March 2026, the Commission was advised that the Employer objected to the application on the basis that the ballot questions should be put to employees to answer individually rather than collectively. That is, that the proposed forms of industrial action should not be the subject of a single consolidated ballot question. The Employer also objected to one item of the proposed ballot question(s) on the basis that the action would have negative security, and health and safety implications.

[3] In response, the ASU initially maintained its proposed consolidated ballot question and contends that there is nothing within the Act which prevents the ballot question being stated in the form proposed. Upon providing my preliminary views, the ASU amended the preamble to the proposed question with the stated intention of providing that a vote would relate to all of the forms of action. I observe the ASU has consented to the removal of the item concerned in the proposed ballot question and I have considered the application in its amended form.

[4] In the circumstances, and having raised some preliminary issues with the parties and afforded an opportunity to provide further written submissions, I have determined the matter on the papers without holding a hearing.

[5] Section 437 of the Act provides as follows:

"437 Application 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."

[6] Section 443 of the Act sets out the circumstances in which the Commission is required to make a PABO. It 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."

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[7] I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above are also not in dispute.

[8] The Employer contended in this matter that:

• "[I]t is very possible individual voters may wish to participate in protected action as an overall proposition, but may not wish to endorse some items on the list".

• Proposed Action Ballot questions should describe the industrial action so that employees are capable of responding to them and are sufficiently clear so employees can make an "informed choice", as well as being framed in a manner to avoid industrial action being taken that may fall outside of action authorised by the ballot.

• • "[T]he framing of the Applicants question in its Form F34 PABO application is similar in structure to other examples from the FWC advice and the relevant authorities, in so far as it refers to eligible voters being asked about endorsement of protected industrial action being taken 'separately, concurrently and/or consecutively'. The Respondent considers this structure should be introductory to a series of separate and distinct questions, rather than a single question in and of itself"[1]

[9] In the alternative, the Employer contended that the proposed revised preamble was itself unsatisfactory as it conflated the forms of action with the manner in which it could be taken. Further, it submitted that should the Commission determine that the PABO be issued with a consolidated question, the orders should include commentary of the risks it had identified, as well as an order to inform voters that a 'Yes' vote to a consolidated question is endorsement and authorisation of all the proposed forms of protected Industrial action, "meaning that if they disagree with even one type of proposed action, they should vote 'No'."

• [10] In relation to the consolidated form of ballot question, there is much to be said for giving the employees involved an opportunity to express a separate view on each form of potential industrial action. This is more democratic and in many senses is to be preferred. However, the requirements of the Act are broadly expressed, that is, the nature of the proposed industrial action must be stated in the ballot question or questions.[2] As a Full Bench of the Commission has made clear[3] in relation to proposed ballot questions:

"[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been "made under section 437" for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered "yes" or "no" by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling "informed consent" goes beyond the text of the provision and constitutes a gloss on the statute. The concept of "informed consent" is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued. We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.

[54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole. It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.

[55] That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant's intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question."

[11] The original preamble to the proposed consolidated question was as follows:

"In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of any or all of the actions described in Schedule A of this Ballot?

[12] Schedule A then listed a series of individual proposed from of industrial action.

"In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of the actions described in Schedule A of this Ballot?

[14] The ballot question as originally proposed was problematic given the preamble. It would not be clear whether the employees were being requested to endorse all or only some of the proposed industrial action. This falls within the kind of concerns that would lead to the Commission changing the proposed question. However, the amended preamble now makes it clear what is being sought. The criticisms of the Employer are in my view pedantic. When read according to its ordinary and natural meaning, the question seeks the endorsement or rejection of all of the forms of action proposed. I observe that I have removed reference to "schedule A" to be consistent with the structure of the order.

[15] I consider that the amended ballot question complies with the relevant requirements of the Act. This includes that the ballot question states the nature of the industrial action that is sought to be endorsed. It is the ASU that runs the risk that if any of the proposed action is not endorsed, the form of question will require the employees to vote no to whole question. In addition, any risk that the question does not provide a proper basis for any subsequent notified industrial action also rests with the ASU. In that light, I did not require the ASU to further alter the form of ballot question in this matter and have dealt with the matter on the amended basis. I also observe that the ballot agent is able to have regard to the effect of this decision in preparing the statement required by clause 11.3 h) of the order.

[16] On the basis of the material before me, including the declaration of Georgia Birch, Organiser, 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 MCM, 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.

[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 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 19 March 2026.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[19] An Order has been separately issued in PR797307.

[20] 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] Citing John Hollan Pty Ltd v AMWU (2010) FWAFB 526.

[2] Sections 437(3)(b) and 443(3)d) of the Act.

[3] National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 (NTEU v Curtin University).

[4] This is, in effect, 10 working days from the making of the Order and is consistent with the period sought in the application.

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