Fair Work Act 2009

s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Petuna Aquaculture Pty Ltd - AEC ballot

[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 Petuna Aquaculture Pty Ltd (Petuna or Employer).

[2] On 9 April 2026, the Commission was advised that the Employer, in effect, did not object to the application. I observe that the employer has raised the notion of potential breaches of animal welfare and environmental legislative requirements in relation to proposed ballot question 5 and put the Applicant on notice that it may seek to object if this action is ultimately taken.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

• [4] In relation to the concerns raised by the Employer regarding ballot question 5, and noting the role of the Commission in relation to the consideration of ballot questions in an application of this kind,[1] the question appears to be capable of being industrial action,[2] and is sufficient for present purposes.[3] Any risk beyond that associated with the question as an underpinning for protected industrial action and protentional applications to stop any notified industrial action is a matter for the AWU.

[5] On the basis of the material before me, including the declaration of Robert Flanagan, Assistant Branch Secretary, 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 Petuna, 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.

[6] The ballot is to be conducted by the Australian Electoral Commission (AEC).

• [7] 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 25 May 2026.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[8] An Order has been separately issued in PR798469.

[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] See generally National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 at [54] and [55].

[2] Section 19(1)(b) of the Act and see the discussion in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 4740 at [48] to [50].

[4] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

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