s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Powertech Pty Ltd

• [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 Powertech Pty Ltd (Powertech or Employer).

• [2] On 27 May 2025, the Commission was advised that Powertech did not, in effect, object to the Application if amended following discussions between the parties who had reached a consent position on the matter including an extended period of notice for the taking of industrial action.

• [3] In the circumstances, I have granted leave to amend the application to reflect the agreed position and determined the matter on the papers without holding a hearing.

• [4] On the basis of the material before me, including the declaration of Ross Kumeroa, 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 Powertech, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 has determined that the date by which voting is to close is 12 June 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [7] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. By consent, the Commission has specified an extended written notice period of five (5) working days as the minimum period of written notice required in respect of the industrial action taken by employees arising from the ballot questions in clause 5 of the Order.

• [8] An Order has been separately issued in PR787711.

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

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