[2025] FWC 2230

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Proposed protected action ballot of employees of Nepean Power Pty Ltd

• [1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Nepean Power Pty Ltd (Nepean Power or Employer).

• [2] On 30 July 2025, the Commission was advised that the Employer objected to the Application. The basis of the objection was stated to be:

• The CEPU has not genuinely tried to reach an agreement with Nepean Power before applying for the PABO - due to the lack of movement in the Applicant's position on wages to date and a reluctance to further meet unless that was going to be productive; and

• Nepean Power's view that it has been bargaining in good faith.

• [3] Nepean Power seek that the Commission exercise its 'discretion' not to make the PABO at this stage and instead encourage continued negotiations.

• [4] I understand that the reference to "good faith" in the Employer's position is to the good faith bargaining requirements set out in s.228 of the Act.

• [5] In reply, the CEPU has maintained its application, confirmed that it is genuinely seeking to make an enterprise agreement, and seeks that the order be made in the proposed terms.

• [6] The parties were given an opportunity to be further heard on the application but neither sought to do so. In the circumstances, I dealt with the application based on the materials that were before the Commission and did not hold a hearing.

• [7] The CEPU relies upon the declaration of Ash Bamford, Organiser. The Employer did not provide affirmed evidence; however, I have treated its summary of the bargaining events on face value.

• [8] 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.

• [9] 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.

• [10] 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.

• [11] The CEPU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. There is no dispute that the CEPU 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 CEPU has been and is genuinely trying to reach an agreement with the Employer - s.443(1)(b) of the Act.

• [12] The evidence before the Commission demonstrates the history of the bargaining, the series of bargaining meetings that have been conducted and some more recent developments. I am not in a position to resolve any disputed detail of the facts of the bargaining; however, it is not presently necessary for me to do so. Accepting Nepean Power's position on face value, it is evident that bargaining has been progressing and although there is a dispute about the extent of progress, there have been matters agreed or withdrawn, with other claims outstanding.

• [13] 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. However, for reasons set out below, 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.

• [14] At least in part, Nepean Power effectively contend that the application has been brought prematurely and is unnecessary as part of this bargaining process. In this regard, a Full Bench of the Commission in Kuiper Australia Pty Ltd v The Australian Workers' Union[1] (Kuiper) has relevantly stated:

"[31] That is not to suggest that whether a bargaining representative has been, and is, genuinely trying to reach agreement involves an assessment of whether the bargaining representative is "unduly rushing" to take protected industrial action. The Act expressly deals with when protected industrial action can be taken. Application for a protected action ballot order must not be made unless there has been a "notification time" (s 437(2A)) and cannot be made earlier than 30 days before the nominal expiry of an existing enterprise agreement (s 438(1)). Protected industrial action must not actually be organised or engaged in before the nominal expiry date of an existing agreement (s 413(6)) or if a suspension or termination order, Ministerial declaration or intractable bargaining declaration is in operation (s 413(7)). Otherwise, the Act does not dictate when a bargaining representative should seek a protected action ballot order.

[32] The Act contemplates that an application for a protected action ballot order can be made as soon as there has been a "notification time" so long as that date is not more than 30 days before the nominal expiry of an existing agreement. The requirement, in s 443(1)(b), that an applicant has been, and is, genuinely trying to reach agreement does not impose a further de facto time constraint on when protected industrial action can be taken by prescribing that bargaining must have developed to some minimum stage or level. The Act does not countenance such an approach.

[34] An allegation that an application for a protected action ballot order is premature does not, of itself, provide a basis for concluding that the applicant for the order has not been, or is not, genuinely trying to reach agreement. The Act envisages that protected action might be taken early in bargaining. The Commission must simply consider whether, in light of the circumstances operating at the time of its decision, the applicant has been, and is, genuinely seeking agreement. The reference to "premature applications" in Total Marine Services has been doubted or not followed in subsequent decisions, particularly JJ Richards (FWAFB), Farstad Shipping and Esso Australia Pty Ltd v Australian Manufacturing Workers' Union [2015] FWCFB 210; (2015) 247 IR 5. Kuiper did not suggest we should follow the reasoning in the fourth and fifth sentences of paragraph [32] of Total Marine Services."

• [15] The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has also 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.[2] 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.[3]
• • 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.[4] The Commission should have regard to all of the relevant facts and circumstances of the particular case.[5]
• • 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.[6]
• • 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.[7]

• [16] 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, and is not bargaining for some ulterior purpose.[8]

• [17] In this case, the evidence before the Commission generally supports the notion that the CEPU has been and is genuinely trying to reach an agreement with Nepean Power. 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. I accept that Nepean Power has also been bargaining in good faith and that progress in negotiations has been and is likely to continue.

• [18] To the extent that Nepean Power faintly raises the notion that the CEPU may not be meeting the good faith bargaining requirements of the Act,[9] 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.[10] In that regard, I observe that there is no requirement that the bargaining be exhausted before an application of this kind is made. Further, a PABO application does not stop the bargaining and the good faith bargaining obligations remain, including that the parties must continue to bargain. This also includes that parties must continue to meet at appropriate times and to genuinely consider and respond to proposals by other bargaining representatives in a timely manner.[11]

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

• [20] On the basis of the material before me, I am also satisfied that there is a notification time[12] 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, there is no general overriding discretion and I was obliged by the Act to issue the Order.

• [21] The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [22] 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 15 August 2025.[13] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [23] An Order has been separately issued in PR790207.

• [24] 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. If a substantive proposal cannot be agreed, I would also encourage the parties to discuss and confirm future bargaining processes with the assistance of the Commission at this conference.

[1] [2024] FWCFB 378.

[2] [2015] FWCFB 210.

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

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

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

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

[11] Section 228(1)(a), (c) and (d) amongst other requirements.

[13] 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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