Fair Work Act 2009

s 437 - Protected action

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Proposed protected action ballot of employees of Raytheon Australia Pty Ltd

• [1] This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) made under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Raytheon Australia Pty Ltd (Employer).

• [2] On 1 July 2025, the Commission was advised that the Employer, in effect, objected to the application insomuch as it sought an extension of the notice period to seven days in accordance with s 414(2)(b) of the Act. The Respondent submitted that the Commission could be satisfied that there are 'exceptional circumstances' warranting such extension.

• [3] Section 443(5) of the Act provides that the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. The onus is on the Respondent to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance. To warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.

• [4] It is uncontroversial that the expression 'exceptional circumstances' was considered by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation,[1] and in National Tertiary Education Industry Union v Charles Darwin University, the Full Bench concluded that the Vice President's discussion was apposite to the phrase 'exceptional circumstances justifying' in s 443(5).[2]

• [5] I considered it appropriate to determine the matter on the papers and, having considered the meaning to be attributed to the term 'exceptional circumstances', and in light of the materials filed and, ultimately, the consent position reached by the parties after conferral, I have found that exceptional circumstances exist within the meaning of s 443(5) of the Act. In my view, the circumstances so described in the materials justify the extension of the notice period to five working days, as agreed by the parties. I have therefore extended the notice period accordingly.

• [6] On the basis of the material before me, including the declaration of Alan Lindsey, State Organiser, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with the Employer, 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.

• [7] 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.

• [8] 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 16 July 2025.[3] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

• [9] An Order has been separately issued in PR788839.

• [10] The matter will be listed for a s 448A compulsory conciliation conference. An order requiring the bargaining representatives' attendance at the conference will thereafter be issued. It is likely that directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] [2007] AIRC 848; (2007) 167 IR 4.

[2] [2018] FWCFB 4011, [20]-[21].

[3] 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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