Fair Work Act 2009

s.437 - Application for a protected action ballot order

Pacific National Bulk Rail Pty Ltd & Pacific National Services Pty Ltd

Proposed protected action ballot of employees of Pacific National Bulk Rail Pty Ltd and Pacific National Services Pty Ltd

• [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 Pacific National Bulk Rail Pty Ltd and Pacific National Services Pty Ltd, trading collectively as Pacific National Pty Ltd (Pacific National or Employer). The parties are bargaining for a single enterprise agreement.

• [2] On 13 August 2025, the Commission was advised that the Employers did not object to the Application. I also observe that the RTBU provided an amended application dealing with some minor inconsistencies between the original application and the draft order supplied. Further, one of the ballot questions was later clarified by the Commission in the context of what appeared to an incomplete question.

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

• [4] On the basis of the material before me, including the declaration of Bryan Evans, Victorian Branch Organiser, 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 Pacific National, 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 Vero Engagement & Voting Solutions (Vero). Vero 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] In the application, the RTBU sought that the ballot close of 10am on 21 August 2025, stating that both Vero and the RTBU had no concerns with this timeframe, which was chosen based on the nature of Pacific National's roster rotations and to ensure that as many eligible employees as possible could vote in the ballot. The Employers did not object to the RTBU's proposed ballot period.

• [7] I accept that the ballot in this matter could, as a matter of practicality, be conducted within the period sought. However, in exercising the discretion in s.443(3A), the Commission must have regard to all of the circumstances in determining the ballot period.[1] This includes the requirements in relation to conducting the compulsory conference pursuant to s.448A, incorporating the need to provide proper notice to all of the bargaining representatives involved and being mindful of the potential consequences of nonattendance. I have had regard to these matters and the submissions of the RTBU and determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close is 25 August 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] An Order has been separately issued in PR790669.

• [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] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NSW) Pty Ltd [2023] FWCFB 134.

[2] This is, in effect, 7 working days after the making of the Order.

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