s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of HV Rail Pty Ltd trading as HV Rail - non-AEC ballot agent electronic voting

• [1] This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU 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 HV Rail Pty Ltd T/A HV Rail (HV Rail or Employer).

• [2] On 9 December 2025, the Employer advised it did not object to the application subject to there being an extended notice period of seven calendar days in relation to the proposed forms of industrial action to which the Applicant agreed.

• [3] In the circumstances, I have granted leave to amend the application and decided to determine the matter on the papers without holding a hearing.

• [4] On the basis of the material before me, including the declaration of Peter Allen, Secretary, setting out the steps taken by the RTBU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with HV Rail, 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.

• [5] 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.

• [6] 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 23 December 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [7] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified seven (7) calendar days as the minimum period of written notice required in respect of the industrial action taken by employees arising from the ballot questions in clause 5 of the Order.

• [8] An Order has been separately issued in PR794684.

• [9] 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] This is, in effect, 10 working days from the making of the Order.

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