s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union

Proposed protected action ballot of employees of Thorne Harbour Health Ltd

• [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 Thorne Harbour Health Ltd (Thorne Harbour or Employer).

• [2] On 30 September 2025, the Employer objected to the application on the following grounds:

• The Commission cannot be satisfied that the ASU has been, and is, genuinely trying to reach an agreement with the Employer; and
• The Employer objected to the types of industrial action proposed by the ASU in the ballot questions.

• [3] In addition, the Employer submitted that there are exceptional circumstances justifying the period of written notice with respect to ballot questions 4 and 22 being 7 working days. These questions are:

In support of reaching an Enterprise Agreement with Thorne Harbour Health Ltd, do you endorse the taking of protected industrial action which may involve taking separately, concurrently and/or consecutively any or all of the actions described in Schedule A to this Ballot?

1. Work stoppages of up to 24 hours' duration or shorter periods of time.

1. An indefinite or periodic ban on performing work in person where that work can be performed from another location including but not limited to a worker's home, other than where the remote performance of that work would cause unacceptable risk to workers, service users, or another person.

• [4] In the circumstances, I listed the matter for hearing on 1 October 2025.

• [5] During the hearing, following submissions by both parties, the Employer withdrew its submission that the Commission cannot be satisfied that the ASU has been, and is, genuinely trying to reach an agreement with the Employer.

• [6] In relation to the ballot questions, the matters raised by the Employer were in relation to client safety and well-being. Such matters are potentially relevant to an application pursuant to s.424 that industrial action be suspended or terminated. However the Commission does not have discretion to consider such matters when determining an application under s.443. The Employer subsequently withdrew its objections to the questions during the hearing.

• [7] As the objections raised by the Employer were resolved at the hearing, the only matter left for determination is the notice requirements for industrial action which I deal with in this Decision.

• [8] The Employer explained that it is an Australian leading HIV, AIDS, and LGBTIQ+ health organisation and Victoria's largest. It is a community-controlled organisation providing health and wellbeing services to LGBTIQ communities which include unique people with diverse backgrounds and experiences who identify as lesbian, gay, bisexual, people with innate variations of sex characteristics, trans and gender diverse, non-binary, intersex, queer, other sexualities, gender, bodily diverse people, and all people living with HIV.

• [9] The Employer's programs span Victoria and South Australia and include:
  • Primary care and sexual health clinics
  • Mental health support services
  • Family violence services
  • Alcohol and other drug programs
  • Specialised care for trans and gender-diverse people
  • Community support programs and events
  • Health promotion

• [10] The Employer submitted that that three days' notice of the commencement of industrial action would be insufficient to ensure that arrangements and required preparations are in place to ensure its clients' welfare is not negatively impacted particularly with respect to accessing services and treatments. The Employer submitted that as a health service, is it obliged to put at the forefront of its operations the welfare, safety and needs of its clients. As a health service working with vulnerable, marginalised and potentially 'at risk' clients, it also needs to be alert to risk factors and the sensitivities of this cohort of clients with the planning and delivery of services.

414 Notice requirements for industrial action

(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.

(i) if subparagraph (ii) of this paragraph does not apply - 3 working days; or

(ii) if the proposed enterprise agreement is a multi‑enterprise agreement - 120 hours; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph - that period of notice.

Note: For a proposed cooperative workplace agreement, see subsection 413(2).

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

(4) Before a person engages in employee response 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.

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

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.

• [13] Sections 414(2) and 443(5) work in conjunction with each other in relation to the requirement that before a person engages in employee claim action for a proposed enterprise agreement, an employee bargaining representative must give written notice of the action to the employer. The required notice period is three working days (if the proposed enterprise agreement is not a multi‑enterprise agreement). The required notice period may be extended up to a maximum period of seven working days provided the Commission 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 being longer than three working days.

• [14] The principles to be applied in relation to an extension of the notice period for engagement in employee claim action are set out in the Full Bench's decision in National Tertiary Education Industry Union v Charles Darwin University.[1]

• [15] In relation to the meaning of the expression 'exceptional circumstances', the Full Bench referred to a decision of the Australian Industrial Relations Commission[2] relating to the equivalent provision in the Workplace Relations Act 1996 which relevantly stated:

[10] ... In summary, the expression 'exceptional circumstances' requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.[3]

• [16] The Full Bench then sets out a three-step decision-making process to determine whether there should be an extension to the notice period pursuant to s 443(5) of the FW Act as follows:

(a) the Commission identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are 'exceptional circumstances'.

(b) the Commission consider whether the circumstances are circumstances justifying a longer notice period. The identified exceptional circumstances must show or prove that it is reasonable or necessary in the circumstances to warrant a longer period of written notice.

• (c) if the Commission is satisfied there are exceptional circumstances justifying an extension, they must consider whether to exercise the discretion and, the additional notice that should be given in the circumstances.[4]

• [17] Although it provided no evidence in support of its submissions, I accept the Employer's submissions that as it works with vulnerable, marginalised and potentially 'at risk' clients, it needs to be alert to risk factors and the sensitivities of this cohort of clients with the planning and delivery of services. However, the Employer was unable to satisfactorily explain why a three working day notice period would not be sufficient to make arrangements with respect to the planning and delivery of services to its clients during a period of protected industrial action. Further, I note that Question 22 qualifies the ban on performing work in person where that work can be performed from another location 'other than where the remote performance of that work would cause unacceptable risk to workers, service users, or another person'. Given this qualification, it is difficult to see how the welfare of clients would be compromised by this action in a way which could give rise to a finding of exceptional circumstances.

• [18] Further, the Employer did not provide any evidence which would enable the Commission to identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are 'exceptional circumstances'.

• [19] I am therefore not 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.

• [20] On the basis of the material before me, including the declaration of Mattew Price, ASU 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 Thorne Harbour, 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.

• [21] 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.

• [22] 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 21 October 2025.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [23] An Order has been separately issued in PR792298.

• [24] 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] [2018] FWCFB 4011.

[2] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848.

[4] [2018] FWCFB 4011, [23]-[25].

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

Printed by authority of the Commonwealth Government Printer