s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Whittens Pty Ltd - non-AEC ballot electronic voting

[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 Whittens Pty Ltd (Whittens or Employer). The Commission understands that the parties are negotiating for an instrument to replace the Whittens Pty Ltd and AWU Snowy Hydro 2.0 Project Underground Greenfield Agreement 2024 - 2025.

[2] I note that the Construction, Forestry and Maritime Employees Union (CFMEU)[1] has made a separate application for a protected action ballot order in relation to the same proposed agreement. That application is the subject of discrete proceedings.

[3] On 9 February 2026, the Commission was advised that the Employer, in effect, did not object to the Application.

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

[5] On the basis of the material before me, including the declaration of Darren Cameron, Trade Union Official, 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 Whittens, 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 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 is authorised to conduct the ballot.

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

[8] An Order has been separately issued in PR796584.

[9] 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, if an order is ultimately made in that application. 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.

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