s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Holcim (Australia) Pty Ltd - non-AEC ballot electronic voting

[1] This is an application by the Australian Workers' Union (AWU 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 Holcim (Australia) Pty Ltd (Holcim or Employer).

[2] On 22 January 2026, the Commission was advised that the Employer objected to the application on two bases. Firstly, the Employer objected to the wording of Ballot question 11 in the proposed order. Secondly, the Employer objected to the length of the ballot period proposed by the AWU. I observe that this first issue was, in effect, resolved between the parties.

[3] In the circumstances, and with the consent of the parties, I have amended the application to reflect the revised ballot question and determined the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Michael Anderson, Organiser, 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 Holcim, 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 must determine the date by which voting is to close. This also establishes the ballot period for the purpose of s.448A(2) of the Act. The AWU sought a ballot period of 7 working days on various grounds including for reasons associated with the fact that the Employer had foreshadowed that it was intending to put a proposed enterprise agreement out to vote and there remained a dispute about the coverage of the proposed instrument. Holcim sought that the period be 10 working days on the basis that the AWU did not raise any objection to having the Agreement put to a vote, and its contention that this ballot period would still enable the ballot to be conducted as "quickly and efficiently as practical", while providing a "more reasonable time frame" for the Commission to order and conduct a conciliation conference and the parties to fully prepare for that conference.

• [7] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd[1] (CEPU v Nilsen), considered the approach to be adopted by the Commission in establishing the ballot period. Amongst other matters, the Full Bench confirmed:

• • "The Commission must determine the ballot period in each case as a matter of discretion and is not bound to grant the date proposed in the application and draft order, or that proposed by the employer."[2]

• • "Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. This focuses attention on the process of conducting the ballot. "Expeditiously" connotes quickly and efficiently and the notion of "practicable" means that something can be done or put into practice successfully. This provision does not require the Commission to ensure that the ballot closes as quickly as possible." [3]

• • "There are a range of case specific considerations, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and the ballot process itself, that are or maybe relevant to the exercise of the discretion to set the ballot period. Within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot period is also a relevant statutory context and consideration in setting that period. This is reinforced by the potential consequences of non-attendance by a bargaining representative at such a conference, the legislative purpose of s.448A within the scheme of the Act, and the practical consequences of arranging and conducting the conference at which all bargaining representatives can attend and fully participate and where the Commission can deploy the range of dispute resolution techniques contemplated by the Act."[4]

• [8] Having regard to all of the circumstances of this matter, including the positions and particular situation of the parties, and the various other considerations outlined in CEPU v Nilsen, I have determined that for the purposes of s.443(3)(c) of the Act, the date by which the voting in the protected action ballot in this matter is to close is 5 February 2026. [5]

[9] An Order has been separately issued in PR796047.

[10] 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] [2023] FWCFB 134.

[2] CEPU v Nilsen at [53], [58] and [79].

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

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