s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of The Greater Metropolitan Cemeteries Trust

• [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 The Greater Metropolitan Cemeteries Trust (GMCT or Employer).

• [2] The application was made on 29 September 2025.

• [3] On Tuesday 30 September, the matter was allocated to me for determination. The material allocated to my Chambers for consideration made clear the Employer objected to the application being made. The grounds for the objection were the Employer's view that the prerequisites for making an order under s443(1) of the FW Act have not been met. Specifically, that AWU has not been, and is not currently, genuinely trying to reach an agreement with GMCT. Noting a further concern that given the nature of the Employer's undertaking, no amount of notice under ss 414 or 443 would allow it to avert the significant consequences of protected action occurring.

• [4] Considering this objection, my Chambers requested both parties to file any additional submissions or material in support of their positions by 5pm 30 September and to indicate if a hearing was required. Both parties filed material within the required timeframe and requested the opportunity for a hearing.

• [5] The matter was scheduled for hearing at 1:00pm on 1 October 2025 and via video.

• [6] The applicant was represented by the Mr Danijel Malbasa who made formal written submissions and relied on the material filed in its application. Mr Steve Bonica, AWU Organiser who has responsibility for representing AWU members at GMCT in bargaining, provided a witness statement and sworn evidence.

• [7] The Respondent was represented by Ms Natasha Sim, who appeared with leave of the Commission. Supporting its position, GMCT provided records of EBA negotiation meetings held on 26 June, 16 July, 31 July, 19 August and 11 September 2025.

• [8] There is no dispute the application has been made under s.437 of the Act. Nor are there are other grounds of objection relied upon by the Respondent.

• [9] I have considered all the material and submissions of the parties and set out my decisions and reasoning below.

• [10] The AWU presses their application. Their position is that the AWU has been and is genuinely trying to reach agreement with the Respondent. They argue that s.443 of the Act requires the Commission to make a protected action ballot order if an application has been made under s.437. Further, that the Commission can be satisfied on the evidence before it that the Applicant has been, and is, genuinely trying to reach agreement.

• [11] The AWU relies on its material and submissions in support of its application. They argue the employer has not presented any evidence to substantiate its objections, that the AWU has met the requirements of the FW Act for the making of an order and that GMCT has other options available to it to address any concerns it may have about notice, good faith bargaining or the impact of industrial action.

• [12] Mr Bonica's evidence in support of the AWU's position is that in the period from 12 February to 30 September 2025 he or another AWU representative have attended 15 separate bargaining meetings. That he has also had regular discissions with AWU members and delegates, including convening 6 separate mass member meetings during this time.

• [13] Mr Bonica's evidence is that he has always been and is genuinely trying to reach an agreement with GMCT on behalf of the AWU and its members. This is included making claims, considering the respondent's responses and positions and making concessions in consultation with AWU members and delegates. He maintains he has always acted with respect towards the respondent, its position and the bargaining process with the genuine objective to try and reach an agreement.

• [14] GMCT identifies that it is a statutory crematories trust operating 19 crematories and memorial parks across greater Melbourne under the Cemeteries and Crematoria Act 2003 (Vic) and that the State Department of Health (DoH) has oversight of its operations, including in relation to enterprise bargaining with ultimate authority over financial expenditure. Its position is that GMCT has historically sought in principle approval with its employees on financial entitlements under any enterprise agreement first as it understands there are the most important priority for its staff.

• [15] GMCT argue that the AWU has failed to meet the requirements of s443(1)(b) because its representatives have engaged in behaviour directly contrary to the interests and wishes of the employees whose interests they are supposed to represent. They identified this has included:

• Refusing to seek in principle agreement on financial entitlements and seeking exact wording on all proposed clauses, effectively denying GMCT employees the possibility of back-pay once the new EA is approved
• Refusing to allow other attendees to speak at bargaining meetings, including AWU members
• Misrepresenting to GMCT its good faith bargaining obligations prevented it polling its employees to identify their priorities
• Cancelling bargaining meetings because of other work commitments
• Being absent from bargaining meetings, including because of illness
• Withdrawing in-principle agreement reached by other AWU representatives

• [16] In further support of its position, GMCT provided a record of its minutes of bargaining meetings that were held on 26 June, 16 July, 31 July, 19 August and 11 September. These minutes support their contentions above. In particular, the respondent identified the fact these records show the AWU representative opposed the respondent conducting an independent survey of its workforce to identify their priorities and expressed a view that such a step would be counterproductive and capricious supports this conclusion.

• [17] In proceedings, the Respondent sought to lead further oral evidence to support their position, however, no witness statements were provided to the Commission in accordance with my directions. The applicant opposed this request, noting that it was equally busy and had complied with the Commissions directions. In the circumstances, I determined not to accept this evidence but provided the respondent an opportunity to make additional submissions.

• [18] With respect to the amount of minimum notice required for any potential industrial action, GMCT's position is that both the 3 working days (per s414(2)) and maximum 7 days (per s443(5)) are entirely inadequate. They argued no amount of notice would allow GMCT to avert the consequences of its employees taking industrial action and that any order allowing them to do so would be unconscionable.

• [19] In proceedings, GMCT clarified they sought the maximum notice period pursuant to s443(5) in the event of an order being made by the Commission. The basis of this submission is that the consequences of AWU members taking industrial action will have significant community, social and public health implications arising from the impact of its inability to attend to or facilitate the burial and memorial of human remains.

• [20] Despite also not filing any additional evidence in support of its position that exceptional circumstances exist, with some indulgence, notwithstanding the applicant's objection, I invited the Respondent to present oral evidence in proceedings on the existence of exceptional circumstances warranting an extension to the notice period prior to industrial action occurring. In particular, I sought evidence from the Respondent on the impact of industrial action on certain religious communities and the ability of the respondent to meet these needs, which the applicant did not dispute existed.

• [21] Mr Robert Luscombe, General Manager for the Respondent's North Region, provided sworn evidence to the Commission that GMCT facilitates less than 600 burials for Jewish and Muslim communities per year that are required to be completed with 24 hours of death. His evidence was that industrial action occurring would put this capacity at risk. Mr Luscombe also gave evidence that GMCT would have to rely on external labour or other facilities to meet these communities' needs and that this could also impact other community needs.

• [22] As the Applicant has identified, s.443 of the Act sets out when the Commission must make a protected ballot order as follows:

"443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted."

• [23] The Applicant's position is that these conditions have been met, and the Commission must make an order. The Respondent disputes this can be the case when it is the of the view that the applicant has not been, and is not, genuinely trying to reach an agreement with GMCT.

• [24] The Applicant rejects this position. It is their position that from 12 February 2025, Mr Bonica as the AWU Organiser with responsibility for the AWU members of GMCT and carriage of representing their interest in bargaining a new enterprise agreement has been genuinely seeking to reach an agreement with the Respondent and that this continues to be the case. Mr Bonica provided sworn evidence to the Commission to this effect in proceedings.

• [25] The material filed in support of the AWU's application, including its Form 34 and Form 34B Declaration also support this conclusion. As does Ms Bonica's further evidence that he attended a further bargaining meeting with GMCT representatives on 30 September 2025 and that there is a further bargaining meeting scheduled next week.

• [26] The Respondent's own evidence is that there have been a significant number of bargaining meetings in the period from 12 February to 30 September this year. I have considered the minutes of these meetings provided. I do not consider these records do anything other than support a conclusion that the parties have been genuinely engaged in a difficult process of enterprise bargaining. They do not disclose that Mr Bonica has been engaged in any form of conduct other than that of seeking to express the views he has formed on behalf of his members with respect to the bargaining of a new enterprise agreement.

• [27] As to the respondent's specific concern that Mr Bonica's objection to the respondent surveying its members reveals an intention other than reaching a genuine agreement, I find nothing extraordinary about this being the case. Mr Bonica's explanation is that his objection was based on it undermining his role as a collective representative. I find this explanation completely plausible and in no way reflective of an objective other than genuinely trying to reach an agreement.

• [28] Considering all these materials, it is apparent on the evidence before me that the parties have been engaged in extensive negotiations for some time. That this process has included a genuine consideration of respective positions and concessions or amendments where appropriate with the genuine intention of reaching an agreement.

• [29] That fact that GMCT strongly disagrees with Mr Bonica and believes he is not acting in his members' best interest does not make it so. Mr Bonica has the responsibility to represent the members' interests and genuinely seek to reach an agreement on their behalf and continue to do so. He has provided clear evidence to the Commission that this is exactly the case. I accept this evidence.

• [30] As Deputy President Gostencnik observed in AWU v Winchester Australia Limited the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to all the circumstances of the particular bargaining.[1] In JJ Richards & Sons Pty Ltd v Transport Workers Union of Australia considering genuine agreement, the Full Bench observed at [58], [62] and [63]:[2]

"[58] The expression "genuinely trying' in s 443(1)(b) is, clearly enough, concerned with the genuineness of the "trying", the efforts, to reach the stated goal, namely an enterprise agreement that meets the requirements of the FW Act. It is directed at the authenticity of the applicant's efforts to reach that goal. The genuineness or authenticity of an applicant's efforts to reach that goal will turn on its motivation - the intention, object or purpose.

[62] In the ordinary course of events where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act, what may be described as an evidentiary onus shifts to the party or parties opposing the application to demonstrate why that evidence ought not be accepted sufficient to shift the evidentiary onus back to the applicant.

[63] In circumstances where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act a finding that the applicant was not "genuinely trying to reach an [enterprise] agreement" within the meaning of s.443(1)(b) will necessarily involve accepting evidence establishing that the applicant had some other, extraneous purpose in seeking the ballot. Indeed, when there is evidence from an applicant for a protected action ballot order that they have been and are "genuinely trying to reach an [enterprise] agreement" under the FW Act, it is difficult to conceive of circumstances where it could properly be found they were not..."

• [31] What is required is an assessment of all the circumstances of the extent of the bargaining, including considering the extent of progress in negotiations, and the steps taken to try and reach an agreement. My consideration of the evidence in this case is that I am satisfied the AWU has been and is genuinely trying to reach an agreement with GMCT.

• [32] Turning to the request for an extension to the notice period prior to industrial action occurring as provided by s.443(5), I have considered GMCT's submissions and the evidence of Mr Luscombe.

• [33] Section 443(5) provides that if the Commission is satisfied that there are exceptional circumstances justifying the period of written notice referred to in s414(2)(a) being longer than 3 working days, the protected ballot order may specify a longer period of up to 7 working days. It is well established that the Commission must have a sound basis for any state of satisfaction it reaches under this provision.[3] And further, that the test for whether exceptional circumstances exist is whether the circumstances are such that they are out of the normal course of events, unusual, uncommon on extraordinary.[4]

• [34] The onus is on the respondent to provide evidence that would satisfy the Commission there are exceptional circumstances in this instance. The AWU oppose an extension and argue that the Respondent has failed to present any evidence to the Commission that supports it position.

• [35] I do not necessarily accept this is the case. Mr Luscombe has provided sworn evidence to the Commission of his concerns and the potential impact of industrial action occurring over extending periods or days. The Respondent's submissions of a risk arising that could impact GMCT's capacity to meet specific and general community burial needs are sound.

• [36] That a new potential risk arises to the respondent's operations from industrial action occurring is self-evident. On its own, however, there is nothing exceptional about this being the case. The respondent's enterprise involves the burial and memorial of human remains. Similarly, deaths and burials are common occurrences and not on their own exceptional or unusual.

• [37] I accept there are some communities using the respondent's facilities that have specific needs that may be considered unusual or uncommon. However, Mr Luscombe's evidence of the significance of such occurrences and the capacity of the respondent to source external labour or make alternative arrangement such that these needs are meet does not lead me to a conclusion that the evidence in this case justifies the 7 working day notice period sought. For the above reasons, I am not satisfied there are exceptional circumstances justifying a longer notice period.

• [38] On the basis of the material before me, including the declaration of MR Bonica, 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 GMCT, 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.

• [39] 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.

• [40] 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 October 2025.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [41] An Order has been separately issued in PR792296.

• [42] This matter will be notified of my intention to conduct the s.448A compulsory conciliation conference in due course. Orders requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference will be issued. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] See AWU v Winchester Australia Limited [2016] FWC 6126 at [15]- [16].

[2] [2010] FWAFB 9963.

[3] See NTEU v Charles Darwin University [2018] FWCFB 4011 at [21]- [25].

[4] See also AMWU v Otis Elevator Company Pty Ltd T/A Otis Elevator Company [2023] FWC 1337 and AMWU v UGL Rail Services Pty Limited [2023] FWC 1365.

[5] This is, in effect, 14 working days from the making of the Order and was the period sought in the application.

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