Fair Work Act 2009

s.437 - Application for a protected action ballot order

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

Proposed protected action ballot of employees of Porta Products Pty Limited - AEC ballot electronic voting

• [1] This matter concerns 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 (PABO) in relation to certain employees of Porta Products Pty Limited (Porta or Employer).

• [2] On 4 December 2025, the Commission was advised that the Employer objected to the application on the basis that the AMWU is not genuinely trying to reach an agreement with Porta. This arises from the requirements of s.443(1)(b) of the Act.

• [3] In the circumstances, I listed the matter for hearing on 5 December 2025. Following the conclusion of the hearing, I issued the PABO in the terms sought by the AMWU. I now provide my reasons for that decision.

• [4] At the hearing, the AMWU relied upon a declaration of Mr Darren Travis, AMWU State Organiser, and provided the following history of bargaining, which expanded upon some of the matters in Mr Travis' declaration:

1. Employees of Porta who are to be balloted for the purposes of the protected action ballot are covered by the Borg Manufacturing Pty Ltd Mount Gambier Agreement 2022 (2022 Agreement) which has a nominal expiry date of 1 July 2025.

1. The 2022 Agreement covers Production employees, who comprise the majority of the workforce, and Trades employees who comprise a minority of the workforce.
2. The Production employees are represented by the Timber, Furnishing and Textiles Union (TFTU). The Trades employees are represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia (CEPU) and the AMWU.

1. In around May 2025, prior to the expiration of the 2022 Agreement, Porta management proposed that negotiations for a replacement agreement be suspended and that a Memorandum of Understanding (MOU) with a wage increase be entered into between the parties to the 2022 Agreement. This was put to a vote of employees where a majority of employees, predominantly Production employees, supported the adoption of a MOU and suspension of enterprise bargaining. At a mass meeting of AMWU and CEPU members, the Trades employees endorsed the rejection of the MOU and pursuit of a separate enterprise agreement that covered only Trades employees.

1. On 11 June 2025, joint mass meetings of both AMWU and CEPU members were held where organisers sought items to develop a log of claims with a separate Trades agreement being a key priority. Members endorsed the organisers to advise that they were happy to enter into a MOU but that the 2.2% pay increase offered by Porta would need to be increased. A discussion was held with Porta who advised the AMWU and CEPU organisers that Porta would not entertain a higher wage increase nor a separate Trades agreement. However, following this, Porta initiated bargaining for a new enterprise agreement covering both Trades and Production employees.

1. On 25 July 2025, joint mass meetings of both AMWU and CEPU were held where organisers provided further report backs following the discussion with Porta on 11 June 2025 and members endorsed their log of claims. This log of claims included a separate Trades only enterprise agreement.

1. On 15 October 2025, an initial bargaining meeting was held. Porta advised that it is seeking a new modern enterprise agreement that is user friendly and provided a document that has been condensed and stripped back. At that meeting, the AMWU and CEPU advised Porta that their members are seeking a separate agreement covering only Trades employees, although given that the basis of that agreement would be the same as that covering Production employees, the AMWU and CEPU were amenable to negotiating the common terms of those agreements first. The parties agreed to step through Porta's proposed enterprise agreement to record agreed terms and areas for discussion. The parties set protocols for meetings and agreed minutes and access to members to provide report back meetings.

1. On 16 October 2025, a second bargaining meeting was held where the parties continued to work through the proposed enterprise agreement.

1. On 29 October 2025, a further Trades only bargaining meeting was held between Porta and the AMWU and CEPU. There was a lengthy discussion around establishing a fair and transparent system for determining and managing trade classifications primarily based on industry standards and competencies. This included levelling and progression with assessments being undertaken by a qualified trainer and assessor. Further discussions were had in relation to a separate Trades agreement which focussed on the preferred structure for the Trades members agreement and the negotiation process. Porta management advised that its preference was to maintain a single enterprise agreement that covers both the Production and Trades employees. The AMWU and CEPU requested to hold further mass meetings with the Trades members to provide report backs prior to the meeting on 30 October 2025 which was granted.

1. On 30 October 2025 mass meetings were held. After these mass meetings, negotiations continued involving all parties to the 2022 Agreement where the bargaining committee continued to work through the proposed enterprise agreement clause by clause. The AMWU and CEPU provided a summary of the mass meeting to the bargaining committee advising that the Trades members are still pursuing a separate Trades agreement.

1. On 5 November 2025, a further bargaining meeting was held and all parties continued to work through the proposed enterprise agreement clause by clause. At this meeting, the AMWU and CEPU advised Porta management that they will continue to advocate for a separate Trades agreement on behalf of their respective members.

1. On 17 November 2025 both the AMWU and CEPU attended a bargaining meeting via teams and all parties continued to work through the proposed enterprise agreement clause by clause.

1. On 20 November 2025, the AMWU wrote to Porta on behalf of the AMWU and CEPU advising they would be attending the next bargaining meeting on 25 November 2025 in person. The Unions also stated that they were seeking a response in relation to the separate Trades agreement and then be given the opportunity to convene report back meetings with the Trades members.

1. On 25 November 2025, a further bargaining meeting was held. Discussion was had in relation to the introduction of policies covering parts of the enterprise agreement rather than retaining these sections in the enterprise agreement. All parties agreed to continue with retaining these sections in the proposed enterprise agreement. In relation to the separate Trades agreement there was a discussion and Mr Sullivan stated that the Employer's position is that it wants one agreement covering all employees. The AMWU and CEPU then held report back meetings with their members and provided feedback in relation to Mr Sullivan's response. At this meeting members from both the AMWU and CEPU endorsed the Unions to apply for a protected action ballot in support of their claim for a separate Trades agreement.

• [5] The Employer did not dispute the history of bargaining provided by the AMWU but contended that the application could not be made under s.437(1) as there has been no notification time in relation to the proposed agreement as required by s.437(2A). Notification time is defined in s.173(2) which provides:

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(aa) the employer receives a request to bargain under subsection (2A) in relation to the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a supported bargaining authorisation in relation to the agreement that specifies the employer comes into operation; or

(e) a single interest employer authorisation in relation to the agreement that specifies the employer comes into operation.

• [6] The Employer noted that in the declaration filed by the AMWU, Mr Travis claimed that the AMWU had initiated a request to bargain under s.173(2)(aa) by providing the Employer with a letter dated 15 October 2025. The letter provided:

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) as the bargaining agent for its members who are subject to Bord Manufacturing Pty Ltd Mt Gambier Enterprise Agreement 2022 members towards a new Enterprise Agreement under the Fair Work Act 2009.

The AMWU will be seeking to ensure that any agreement contains mandatory terms as required by the Fair Work Act 2009 and does not contain any matters that would be unlawful or not permitted under the Act.

If during any negotiations you become concerned that matters are being proposed that are not consistent with the Fair Work Act 2009, please notify us as soon as possible so that we can consider your concerns and amend any proposals accordingly.

We look forward to you contacting the undersigned to arrange a time to meet and commence negotiations on behalf of AMWU members with Porta Products.

• [7] The Employer submitted that the letter has no effect as initiating a notification time because it does not meet all the requirements of s.173(2A) which provides:

(2A) A bargaining representative of an employee who will be covered by a proposed single‑enterprise agreement (other than a greenfields agreement) may give the employer who will be covered by the proposed agreement a request in writing to bargain for the proposed agreement if:

(a) the proposed agreement will replace an earlier single‑enterprise agreement (the earlier agreement) that has passed its nominal expiry date; and

(b) a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement; and

(c) no more than 5 years have passed since the nominal expiry date; and

(d) the proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.

• [8] In particular, the Employer submitted that s.173(2A)(d) is not satisfied as the AMWU is seeking to bargain for a proposed agreement that will not cover the same, or substantially the same, group of employees as the earlier agreement.

• [9] The AMWU submitted that in the event that the letter dated 15 October 2025 was not regarded as an effective notification of bargaining, it relied upon s.173(2)(a) on the basis that the Employer had agreed to bargain for the agreement. During the hearing, the Employer's legal representative advised the Commission that the Employer did not dispute that it had agreed to bargain for an agreement but submitted that the Employer had not agreed to bargain for a separate Trades agreement, which is the subject of this application.

• [10] The Employer confirmed during the hearing that it is engaging in bargaining for a proposed agreement with the same scope as the 2022 Agreement, but that the application before the Commission was in relation to a different agreement covering only Trades employees.

• [11] The Employer also submitted that while the AMWU has advised Porta of its preference to bargain for a separate Trades enterprise agreement for its members, bargaining for such an agreement has not yet occurred and as such it cannot be said that the AMWU is genuinely trying to reach agreement with the Employer.

• [12] Section 437 of the Act provides as follows:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and

(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.

Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

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:

(a) an application has been made under section 437; and

(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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;

(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

Has there been a notification time in relation to the proposed agreement?

• [14] I accept the Employer's submission that for a PABO application to have been validly made under s.437(1) there must have been a 'notification time' for the proposed enterprise agreement.

• [15] Therefore, the first issue that I am required to determine is whether there has been a notification time in relation to the proposed agreement as required by s.437(2A). The declaration of Mr Travis states that the first bargaining meeting occurred on 15 October 2025. This is the same date that the AMWU sent a letter in relation to bargaining, which the AMWU claims is a request to bargain. It is not clear from the terms of the AMWU's letter whether it would be regarded as a request to bargain under s.173(2)(aa) as there appears to be typographical errors in first paragraph of the letter which creates ambiguity with respect to the meaning of some aspects of the letter. The first paragraph of the letter refers to the AMWU being a bargaining agent for members who are subject to the 2022 Agreement and refers to a new enterprise agreement. The letter concludes by requesting that the Employer contact the AMWU to arrange a time to meet and commence negotiations. However, the letter does not contain a specific request to bargain. Given that the letter was sent on the day of the first bargaining meeting, it is possible that the letter is simply confirming the AMWU's commitment to bargain on behalf of its members for a new enterprise agreement.

• [16] There is no dispute that the Employer has agreed to bargain for a new enterprise agreement with the same scope as the 2022 Agreement. That agreement is demonstrated by the Employer participating in seven bargaining meetings over a period of approximately eight weeks. In this regard, I adopt the following observations of Vice President Hatcher (as His Honour then was) in Transport Workers' Union of Australia v Hunter Operations Pty Ltd:[1]

...an employer may agree to bargain expressly in writing or orally, or ... an employer may be inferred to have agreed to bargain through its conduct (such as by commencing to actually engage in bargaining in relation to a proposed enterprise agreement).[2]

• [17] In circumstances where it is unclear whether the AMWU's letter dated 15 October 2025 constitutes a request to bargain within the meaning of s.173(2)(aa), but there is no dispute that the Employer has agreed to bargain, I find that the notification time for the proposed enterprise agreement was 15 October 2025 when the employer agreed to bargain within the meaning of s.173(2)(a) by attending the first bargaining meeting.

• [18] In Maritime Union of Australia v Maersk Crewing Australia Pty Ltd (Maersk),[3] the Full Bench determined that s.437(2A) does not require that there has been a notification time in respect of the enterprise agreement proposed by the PABO applicant. The Full Bench made the following observations which are relevant to the matter before me (citations omitted):

[26] The legislative purpose in the enactment of s.437(2A) is to ensure that protected industrial action cannot be taken until after bargaining has commenced - that is, after the time when the employer agrees to bargain, or initiates bargaining (or one of the other circumstances constituting the 'notification time' within the meaning of s.173(2)). To import into s.437(2A) a requirement that the 'notification time' must be in respect of the agreement proposed by the PABO applicant would mean (relevantly in the context of the present matter) that the employer must have agreed to bargain or have initiated bargaining for a proposed enterprise agreement with precisely the same scope as that sought by the PABO applicant. Such a construction would have the effect of removing scope from the matters in bargaining in support of which employees can engage in protected industrial action. This would be the case because a bargaining representative would only be able to apply for a PABO in relation to a proposed enterprise agreement containing the scope proposed by, or agreed with, the employer.

[27] A consequence of the construction proposed by Maersk is that by not agreeing on the scope of the proposed enterprise agreement, an employer would be able to prevent employees from engaging in protected industrial action unless they have first obtained a majority support determination, scope order or low paid authorisation. It seems to us that such a consequence is inimical to the scheme of the FW Act. The scope of a proposed enterprise agreement can itself be the subject of bargaining and bargaining within the meaning of the FW Act may have commenced even though the parties disagree about the scope of the proposed enterprise agreement. As the Full Bench observed in Stuartholme School v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane,:

'[t]he terms of [s237] unambiguously suggest that bargaining may have commenced under the Fair Work Act even though the parties to the bargaining process are in disagreement about the scope of the proposed agreement'.

[28] Importantly, in the absence of a scope order, the parties to a proposed enterprise agreement are entitled to continue to bargain over the scope of the agreement until that matter is settled through bargaining. If there is a notification time in relation to the proposed agreement, protected industrial action in support of a claim for a particular scope may be taken.

• [19] Applying the reasoning of the Full Bench in Maersk, I find that there is no requirement in s.437(2A) that the notification time be in respect of the Trades only agreement proposed by the AMWU. I also find that in the absence of a scope order, the AMWU is entitled to continue to bargain over the scope of the agreement until that matter is settled through bargaining and that protected industrial action in support of the AMWU's claim for a Trades only agreement may be taken. In the circumstances, I am satisfied that the AMWU is permitted to make the application under s.437(1).

Can the Commission be satisfied that the AMWU has been, and is, genuinely trying to reach an agreement with the Employer?

• [20] The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has previously been summarised, in effect, by the Full Bench in Esso Australia Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union.[4] This includes, as relevant to this matter:

• • While there is a relationship between the good faith bargaining requirements in s.228 of the Act and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.[5]
• • The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.[6] The Commission should have regard to all of the relevant facts and circumstances of the particular case.[7]
• • It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.[8]
• • The reference to the Commission being 'satisfied' means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant union. The expression 'has been, and is', imports temporal considerations. The Commission's attention is thereby directed to the applicant's prior conduct at the time the application for a protected action ballot order is determined. Given the context the reference to 'an agreement' is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the Act.[9]

• [21] The expression 'genuinely trying' has also been taken to be concerned with the genuineness or authenticity of the trying; that is, the efforts, by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act.[10]

• [22] The Employer contends that the AMWU is not genuinely trying to reach agreement with it because bargaining for the Trades only agreement proposed by the AMWU has not yet occurred. I do not accept this submission. It may have carried some weight if the AMWU was refusing to engage with the Employer in relation to matters other than the scope of the agreement but there is no evidence to support such a finding. The history of bargaining establishes that all bargaining representatives have been engaged in negotiating common terms which would apply to all employees covered by the 2022 Agreement, notwithstanding the Employer's preference for one agreement and the AMWU's preference for a Trades only agreement. The history of bargaining also shows that the bargaining representatives have been discussing a proposed enterprise agreement document prepared by the Employer, clause by clause, over successive meetings.

• [23] I am satisfied, based on history of bargaining and Mr Travis' declaration, that the AMWU has been and is genuinely trying to reach an agreement with Porta. The AMWU has meaningfully engaged and continues to engage with the bargaining process with the genuine objective of reaching an agreement within the meaning of the provision. The AMWU also remains committed to negotiating a new enterprise agreement with the Employer and their actions confirm that they are doing so genuinely. I accept that Porta has also been bargaining in good faith and that progress in negotiations has been and is likely to continue.

• [24] I find that the AMWU has met the requirements of s.443(1)(b) of the Act.

• [25] Having regard to the material before me, I am also satisfied that all of the requirements in s.443(1) of the Act have been met, including those not in contest and not expressly dealt with in this decision. On that basis, and given that s.443(2) does not apply, I was obliged by the Act to issue the Order.

• [26] The ballot is to be conducted by the Australian Electoral Commission (AEC).

• [27] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in each matter is 21 January 2026.[11] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [28] An Order has been separately issued in PR794590.

• [29] 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] [2014] FWC 7469.

[3] [2016] FWCFB 1894.

[4] [2015] FWCFB 210.

[6] Ibid, [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia [2009] FWAFB 368 (Total Marine).

[8] Ibid, [35] - but qualifying a further statement made in Total Marine.

[10] J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963, [89] and Kuiper, [26] to [30].

[11] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

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