s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Crown Equipment Pty Limited - non-AEC ballot agent electronic voting

• [1] This is an application by the Australian Workers' Union (AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Crown Equipment Pty Limited (Crown Equipment).

• [2] I note that the Australian Manufacturing Workers' Union (AMWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement. The two matters were heard together today. A separate decision has been published in relation to the AMWU matter.

• [3] On 6 January 2026, the Commission was advised that the Employer, in effect, did object to the Application. The objections were the same objections raised to the AWU Application. The objection was made on two bases. First that the ballot period of 10 days is too short to permit the conference under s.448A to be held. Crown Equipment seeks 20 days because one of its three bargaining representatives is on leave. Second, the ballot questions seek the approval of employees to engage in "Indefinite or periodic partial work bans" which is not sufficiently clear for the purpose of the purpose of specifying industrial action under s.437(3)(b).

• [4] Section 441 requires the Commission, as far as practicable to determine an application for a protected action ballot order within 2 working days. It was not practicable to determine the applications in that timeframe given the need for a hearing to resolve the objections raised.

• [5] The parties were directed to confer to resolve the objections. Prior to the hearing the parties advised that agreement had been reached on the outstanding issues and a consent order was proposed. The order extends the ballot period to 13 working days from the date of this order and provides greater specificity in relation to the work bans. The longer period will allow time for a conference that can include all of the bargaining representatives.

• [6] On the basis of the material before me, including the declaration of Ian Morley, Trade Union Official, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Crown Equipment, 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. The order will reflect the consent position of the parties.

• [7] 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.

• [8] For the purposes of s.443(3)(c) of the Act, the parties have asked that the date by which voting is to close be 27 January 2026. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [9] An Order has been separately issued in PR795539.

• [10] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. I note the parties have asked that the conference be held after 22 January 2026. 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.

Mr J. Byrnes, Legal representative from Swaab, for the Respondent

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