s.437 - Application for a protected action ballot order

Veolia Environmental Services (Australia) Pty Ltd

Proposed protected action ballot of employees of Veolia Environmental Services (Australia) Pty Ltd - AEC ballot agent

[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 Veolia Environmental Services (Australia) Pty Ltd (Veolia or Employer).

[2] On 10 March 2026, the Commission was advised that the Employer did not seek to be heard on the Application and neither opposes nor supports it. However, the Employer raised concerns in relation certain of the questions to be balloted and whether they appeared to constitute or relate to industrial action as defined in s.19 of the Act. The AWU contended that the questions of concern have previously been used and included in similar orders made by the Commission.

[3] In the circumstances and given that the material before the Commission demonstrates compliance with the relevant requirements if the Act, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Carl Millard, 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 Veolia, 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 the Australian Electoral Commission (AEC).

• [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 24 April 2026.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [7] In relation to the ballot questions raised by the Employer (questions 12 and 13) these are expressed to be bans on undertaking particular work. Noting the role of the Commission in relation to the consideration of ballot questions in an application of this kind,[2] this appears to be capable of being industrial action,[3] depending upon which employees are involved and what form of action is notified. This is sufficient for present purposes.[4] Any risk beyond that associated with the question as an underpinning for protected industrial action is a matter for the AWU.

[8] An Order has been separately issued in PR797545.

[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, 30 working days from the making of the Order and is the minimum period required by the AEC.

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

[3] 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].

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