s.437 - Application for a protected action ballot order

InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Mesh

Proposed protected action ballot of employees of InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Mesh

• [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 InfraBuild Construction Solutions Pty Ltd trading as InfraBuild Mesh (InfraBuild Mesh or Employer).

• [2] I note that the Australian Manufacturing Workers' Union (AMWU) has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.[1]

• [3] On 7 July 2025, the Commission was advised that the Employer had safety related concerns with six of the proposed questions set out in clause 5 of the proposed order, and that one of the proposed questions lacked specificity. The Respondent also sought to clarify the correct employer entity that would be subject to the Order.

• [4] The AWU subsequently agreed to amend questions 15, 16, 17, 18, 21 and 22 of clause 5 to include 'safety exemptions' and it also amended question 11 to increase its specificity.

• [5] I observe that the parties also agreed for the AWU to give the following undertaking as part of the subsequent notification of protected industrial action to the Employer:

The AWU undertakes to ensure that during any period of Industrial action, members will be available to perform work in genuine emergencies where there is a risk to health/safety.

• [6] In the circumstances, I have decided to amend the application to adopt the revised ballot questions in addition to naming the correct employer and otherwise determined the matter on the papers without holding a hearing.
• [7] On the basis of the material before me, including the declaration of James Downie, 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 InfraBuild Mesh, 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.

• [8] 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.

• [9] 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 21 July 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [10] To the extent that InfraBuild Mesh sought that the undertaking referenced earlier be included in the Order to be made by the Commission, I observe that whilst the Commission may accommodate agreed arrangements reached between the parties, there is very limited, if any, scope for the Commission to require any undertakings of this kind.[3] Further, unless they form part of the ballot questions, which must state the question to be put to the employees including the nature of the proposed action,[4] the provisions of s.443 of the Act do not appear to otherwise extend to include such express terms in an order of this kind.

• [11] An Order has been separately issued in PR788977.

• [12] 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. 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.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

[3] See also Australian Municipal, Administrative, Clerical and Services Union v Derwent Valley Council [2025] FWC 1916 at [20] and [21].

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