s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Pacific National Services Pty Ltd

• [1] On 25 November 2025, the Australian Rail, Tram and Bus Industry Union (RTBU) filed an application for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (FW Act). The Application concerns a proposed ballot of employees of Pacific National Services Pty Ltd (the Respondent) who are members of the RTBU and only performing work at the Melbourne Freight Terminal.

• [2] On 26 November 2025, the Respondent advised the Commission that it objected to the Application.

• [3] The Application was allocated to my Chambers on 26 November 2025. Section 441 of the FW Act provides that the Commission must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made. I listed the Application for a Directions Conference at 4.10pm AEDT on 26 November 2025.

• [4] At the Directions Conference, at the request of the parties, extended directions were set requiring the Respondent to file any materials it sought to rely on by 4pm on Friday, 28 November 2025; and for the Applicant to file any materials it sought to rely on by 4pm on Tuesday, 2 December 2025. The matter was listed for Hearing on Wednesday, 3 December 2025.

• [5] Mr Koady Williams appeared for the RTBU at the Hearing. The Respondent was granted leave, pursuant to s.596 of the FW Act, to be represented at the Hearing by Mr Stephen Crilly of Seyfarth Shaw Australia.

• [6] Mr Justin Anderson, a Senior People and Culture Business Partner for the Respondent, provided a Witness Statement in these proceedings. Mr Anderson's unchallenged Witness Statement provides that there are a total of nine freight terminals spread across Australia, and that:-

"At all times bargaining has proceeded on the basis that the Replacement Agreement would cover the same employees as the Current EA. At no point has any party suggested that there should be an agreement only covering a specific site, such as the Melbourne intermodal terminal."

• [7] The relevant sections of the FW Act provide:

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement."

"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."

"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."

• [8] I have taken into account all of the submissions and evidence that have been provided by the parties.

• [9] The Respondent submitted that, the Application has not been validly made in accordance with s.437. Further, the Respondent submitted that in accordance with the relevant sections of the FW Act, the legislation "establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement"; it develops "a fair, simple and democratic process"; and it contains "facilitative provisions designed to provide a means for assessing the level of support for protected industrial action". The Respondent submitted that inherent in the notion of 'democracy' is that employees will be able to have their say on matters that affect them. In relation to the PABO proposed by the RTBU, the Respondent submitted that if a sub-group of employees choose to take protected industrial action, this action affects the potential legal rights of other employees who may be, for example, stood down without pay, locked out by the employer, or called upon to take employee response action in the event of a lockout as a result of that action. The Respondent submitted that in those circumstances, a 'fair' and 'democratic' process would require the "level of support for protected industrial action" to be tested among all employees whose rights may be affected if any employee claim action is taken.

• [10] The Applicant, however, pressed that the Application has been validly made. The Applicant submitted that the Respondent's submission is inconsistent with the relevant precedents, including the decision of Colman DP in National Union of Workers v DHL Supply Chain (Australia) Pty Limited [2019] FWC 835 ('the DSC decision'). In accordance with the precedents, the Applicant submitted that PABOs can be issued which ballot a 'subset of members' of a union applicant. The Applicant submitted that s.437 of the FW Act is not ambiguous, and that the Commission should follow the relevant precedents and make the order as sought.

• [11] It seems unusual that a trade union, which is founded on the principles of solidarity and democracy, would apply for a PABO which only applies to one geographical location but may have ramifications at another 8 locations across Australia. In fact, the Union is only proposing to ballot a small proportion of its members covered by the Agreement, all of whom work at the Melbourne Freight Terminal. It is not in dispute that protected industrial action (PIA) in Melbourne may have a detrimental effect on RTBU members across Australia, which may result in stand downs or response action (s.411, s.410). These possibly affected employees would then be involved in the industrial action, despite not being afforded the right to vote on the PIA.

• [12] It is possible to distinguish the DSC decision on a number of grounds. The obvious difference is that the National Union of Workers (NUW) put in separate PABOs for the two locations that were to be covered by the proposed enterprise agreement, whereas this application is the only PABO application that has been lodged by the RTBU. Secondly, there appears to be no "interconnectivity" between the two sites in the DSC decision, which is not the case in this matter, ie, the DSC sites would appear to operate and function independently of each other, whereas there will be an obvious flow on effect around Australia from any PIA undertaken at the Melbourne Freight Terminal.

• [13] The Applicant also took me to the decision of my colleague, McKinnon C, in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation T/A Australia Post [2021] FWC 4766 ('the Australia Post decision'). Whilst I may not necessarily agree with her overall finding based on my firsthand knowledge of the decisions of the Electrical Division and National Council of the CEPU in relation to Tasmania, her analysis of s.437 of the FW Act is compelling:

"Can a protected action ballot order apply to only part of a group of employees represented by a particular bargaining representative?

[49] Section 437(3) of the Act requires an application for a protected action ballot order to specify the group or groups of employees who are to be balloted. The specified group is taken, under section 437(5) of the Act, to include only certain employees - those who will be covered by the proposed agreement and who are represented by an applicant bargaining representative or who are their own bargaining representatives as well as members of the applicant union.

[50] I accept that one of the objects of the Act, drawn from sections 3 and 436, is to ensure that protected industrial action is authorised by a fair and democratic process. It sets out to achieve this object through the detailed provisions dealing with protected action ballot orders in Division 8 of Part 3-3. These deal with a range of matters including who can apply for the orders and when, what the Commission must do if an application is made, and the process for conduct of a ballot - including who is eligible to be on the roll of voters, who may vote and how the results must be made known

[51] ... It prevents a bargaining representative from seeking an order that extends to employees they do not, or are not entitled to, represent (except in the case of union members who are acting as self-represented bargaining representatives).

[52] ... Subject of course to there being a notification time, there is no indication in the Act that an application for a protected action ballot order could not be made on their behalf alone. Similarly, where a particular issue in bargaining of relevance only to part of a group of employees arose, there seems to be no reason why the smaller group should be unable to seek authorisation to take protected industrial action in a way that limits its impact to those it most affects.

[53] The selection of a particular group as a means of undermining bargaining or manipulating what is intended to be a simple, fair and democratic process might mean that an applicant has difficulty persuading the Commission that they are genuinely trying to reach agreement with the employer of the chosen group. As always, it will depend on the particular facts and circumstances of the case.

[54] For these reasons, neither the text nor the scheme of the Act prohibits an application for a protected action ballot order that will cover only part of a group of employees who are represented in bargaining by a particular bargaining representative."

• [14] Neither the DSC decision nor the Australia Post decision are on point with the current matter. There were two PABOs in the DSC matter for their two different sites, whereas an individual bargaining agent in the Australia Post matter made an application for a PABO, contrary to the agreed negotiating position of the parties, allegedly in relation to an issue affecting members of that State. However, in this case, the PABO only differentiates the group to be balloted to take action. Any improved conditions, which may emanate from this PIA, will flow through to all employees covered by the Agreement. Put simply, either the Melbourne Freight Terminal employees are being balloted to carry the industrial campaign for the other 75% of employees covered by the Agreement or the RTBU is trying to manipulate the process by being very selective in choosing this geographically based group for the purposes of the protected action ballot.

• [15] Unfortunately, the RTBU did not provide any witness evidence in this matter, therefore, pertinent clarifying questions could not be asked. For example, 'is there a question or issue about the scope of the Agreement?' Or, 'are the balloted employees/members campaigning for a different outcome to the rest of the employees/members, such as an extra $1,000 per week for those at the Melbourne Freight Terminal?' If so, this would satisfy the example identified by McKinnon C. If not, then the RTBU appears to be undermining the statutory process.

• [16] I hold real concerns about the level of democracy and fairness pertaining to the current application. It is not fair or democratic for employees/members to be dragged into an industrial campaign that they did not authorise. A plethora of scenarios could eventuate if the RTBU succeeds with this application. For example, a minority of employees may not agree with an outcome of an issue which affects everyone covered by the Agreement, however, it is supported by a majority of employees/members. The employer may not be prepared to put the Agreement to ballot due to the risk that the Agreement will be voted down as a result of the 'no' campaign that the dissident group may run. As a result, a minority of employees/members would be dictating the resolution of bargaining, contrary to the wishes of the majority. Such a scenario is simply undemocratic.

• [17] Additionally, Mr Williams, in response to a question from me, agreed that a simple resolution to the Respondent's objection, would be for the RTBU to seek a ballot of all members/employees covered by the proposed Agreement, but only take action at the Melbourne Freight Terminal.

• [18] I do not accept that the Parliament would have condoned the use of the protected industrial action provisions in a manner which is 'sneaky' or 'tricky'. The small cross section of employees to be balloted has certainly caught the Respondent by surprise. I accept the submission of the Respondent that the RTBU appears to be trying to get around the democratic nature of bargaining ballots under the FW Act.

• [19] The taking of protected industrial action is a fundamental right of every Australian employee who is involved in the bargaining process for a new enterprise agreement. This provision is one of the cornerstones of the FW Act which enshrines into law the "right to strike", as long as the necessary preconditions have been satisfied. Put simply, if an employee has the capacity to be directly involved in industrial action, then they are entitled to a vote on the taking of that action.

• [20] The FW Act is not intended to discriminate against members of the same union, working for the same employer and covered by the same Agreement. The provisions of section 436 require a process to be fair, simple and democratic. I am satisfied and find that creating a scenario where members are disenfranchised because of the location where they work is not a fair, simple or democratic process.

• [21] Further, it may well be that the majority of the RTBU's members employed under the Agreement don't want to take PIA. I struggle to see how it could possibly be democratic, if those employees are then caught up in industrial action due to a minority group of their Union.

• [22] I note that my decision supports the commentary in Australia Post. I have distinguished the decision in DCS on the facts. The fact that the chosen cohort is not bargaining for its own specific issue is relevant. The RTBU has not provided any precedent where only a small section of a workforce has been the only balloted group for a PABO, and not the entirety of its membership who are covered by this Agreement. The simple reason being that such a scenario is not the intent of the FW Act.

• [23] The selection of the Melbourne Freight Terminal employees/members as the group to be balloted has surprised the Respondent. It obviously has not been discussed during the negotiations and raises a multitude of possible new issues in relation to scope and claims.

• [24] For the reasons identified above, and my view that the proposed process is unfair and undemocratic, I find that the RTBU has not been genuinely trying to reach agreement.

• [25] Therefore, section 437 of the FW Act has not been satisfied.

• [26] The application for a PABO is dismissed.

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