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)

Pacific Marine Batteries Pty Ltd T/A PMB Defence - Batteries

Proposed protected action ballot of employees of Pacific Marine Batteries Pty Ltd T/A PMB Defence - Batteries

• [1] This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU 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 Pacific Marine Batteries Pty Ltd trading as PMB Defence - Batteries (PMB or Employer).

• [2] On 4 April 2025, the Commission was advised that the Employer objected to the application on two bases. Firstly, that the AMWU was not genuinely engaging with the bargaining process. Secondly, the Employer also objected to the length of the ballot period proposed by the AMWU. I observe that this second issue was, in effect, resolved between the parties.

• [3] In the circumstances, I have conducted a hearing today to enable the application to be determined by the Commission. The AMWU rejected each of these objections and contended that all of the requirements of the Act had been met for the application to be granted. The AMWU relied upon the declaration of Mark Plunkett, Acting Assistant State Secretary, which set out the steps taken by the AMWU in bargaining with PMB.

• [4] PMB did not lead evidence in the matter, however the parties have conducted their respective cases on the basis that the Commission would note the different contentions regarding the bargaining and would weigh those matters accordingly. I have adopted that approach, given that at least in general terms, there is little factual dispute between the parties. The differences largely involve matters of characterisation and the implications of the facts for the statutory requirements.

• [5] At the conclusion of the hearing, I advised the parties that the application met all of the statutory requirements for the protected action ballot order (PABO) to be made and that I would issue the PABO as sought. My reasons for doing so are set out below.

• [6] 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.

• [7] Section 443 of the Act provides:

"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.

• [8] I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above were also not in dispute.

• [9] The AMWU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. There is no dispute that the AMWU was entitled to bring the application, and a valid application has been made under s.437 of the Act. The substantive requirement that must be met is whether the AMWU has been and is genuinely trying to reach an agreement with the employer - s.443(1)(b) of the Act.

• [10] 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.[1] 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.[2]
• • 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.[3] The Commission should have regard to all of the relevant facts and circumstances of the particular case.[4]
• • 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.[5]
• • 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.[6]

• [11] 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.[7]

• [12] In this case, the evidence before the Commission generally supports the notion that the AMWU has been and is genuinely trying to reach an agreement with PMB. It has also meaningfully engaged and continues to engage with the bargaining process with the genuine objective of reaching an agreement. It also remains committed to negotiating a new enterprise agreement with the Employer and its actions confirm that it is doing so genuinely.

• [13] To the extent that the Employer raises the notion that the AMWU may not be meeting the good faith bargaining requirements of the Act,[8] this has not been made out. In any event, I have taken into account the concerns that are directly relevant to the determination of the present matter, where supported by any evidence.[9] In that regard, I observe that there is no requirement that the bargaining be exhausted before an application of this kind is made. In addition, the good faith bargaining obligations[10] do not require that the bargaining representatives make concessions, adopt positions that the other parties consider are reasonable, or indeed, reach an agreement. Further, a PABO application does not stop the bargaining and the good faith bargaining obligations remain, including the parties' obligations to respond to proposals and further engage in the process.

• [14] I would be open to the suggestion that progress in bargaining for a new enterprise agreement in this matter remains possible without recourse to protected industrial action and that the employer considers that the AMWU has not always been timely in its responses. However, this is not the test for a PABO to be issued and protected industrial action as part of bargaining, provided that the various statutory requirements have been met, is part of the scheme of the Act.

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

• [16] I found that the application and proposed order met the requirements of s.437(3)(b) and s.443(3)(d) of the Act.

• [17] On the basis of the material before me, I am also satisfied that there is a notification time[11] in relation to the proposed agreement and that all of the requirements in s.443 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.

• [18] 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.

• [19] For the purposes of s.443(3)(c) of the Act, the Commission must determine the date by which voting is to close. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [20] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd[12] (CEPU v Nilsen), considered the approach to be adopted by the Commission in establishing the ballot period. Amongst other matters, the Full Bench confirmed:

• • The Commission must determine the ballot period in each case as a matter of discretion and is not bound to grant the date proposed in the application and draft order, or that proposed by the employer.[13]

• • Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. This focuses attention on the process of conducting the ballot. "Expeditiously" connotes quickly and efficiently and the notion of "practicable" means that something can be done or put into practice successfully. This provision does not require the Commission to ensure that the ballot closes as quickly as possible. [14]

• • There are a range of case specific considerations, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and the ballot process itself, that are or maybe relevant to the exercise of the discretion to set the ballot period. Within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot period is also a relevant statutory context and consideration in setting that period. This is reinforced by the potential consequences of non-attendance by a bargaining representative at such a conference, the legislative purpose of s.448A within the scheme of the Act, and the practical consequences of arranging and conducting the conference at which all bargaining representatives can attend and fully participate and where the Commission can deploy the range of dispute resolution techniques contemplated by the Act.[15]

• [21] Having regard to all of the circumstances of this matter, including the positions and particular situation of the parties, and the various other considerations outlined in CEPU v Nilsen, I have determined that for the purposes of s.443(3)(c) of the Act, the date by which the voting in the protected action ballot in this matter is to close is 22 April 2025. This is the equivalent of 9 working days after the date of the Order and is the outcome now supported by the parties.

• [22] An Order has been separately issued in PR785894.

• [23] 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.

P Rocconi with M Plunkett of the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), the Applicant.

A Byrne with N Thorn and D Abrams, for Pacific Marine Batteries Pty Ltd T/A PMB Defence - Batteries.

[1] [2015] FWCFB 210.

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

[5] Ibid at [35] - but qualifying a further statement made in Total Marine.

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

[9] Noting that the two concepts are related but should not be conflated.

[12] [2023] FWCFB 134.

[13] CEPU v Nilsen at [53], [58] and [79].

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