[2025] FWC 2380

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

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

Proposed protected action ballot of employees of Bendigo Rail Workshops Pty Ltd

• [1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (the Unions) have both applied for a protected action ballot order (PABO).[1] Those applications were made at 4:56pm on 12 August 2025. The Respondent in these matters is Bendigo Rail Workshops Pty Ltd (the Respondent).

• [2] In their applications, the Unions sought an order that employees who are represented by the Unions and who will be covered by the proposed agreement be balloted to see if they supported the taking of protected industrial action.

• [3] The Respondent filed submissions in response to the directions sent by the chambers of Deputy President Hampton on 13 August 2025. The submissions do not raise an objection to the making of the PABOs but seek an extension of the 3-day notice period of any protected industrial action to 7 days pursuant to s.443(5) of the Fair Work Act 2009 (the Act).

• [4] The Unions filed reply submissions objecting to the extension sought being granted.

• [5] The matter was allocated to me in the morning of the 14th of August and listed for Hearing at 2:30pm on 14 August 2025.

• [6] The exceptional circumstances relied upon by the Respondent in this matter relate to the impact of any or all the proposed industrial action set out in the applications.

• [7] The extension to 7 days' notice is sought in respect of every form of industrial action to be taken. However, in their final oral submissions, the Respondent sought as an alternative an extension to 7 days' notice of the action relating to the work away from the Bendigo sites.

• [8] The industrial action that the CEPU seeks to have authorised is:
  • An unlimited number of indefinite and/or periodic bans on overtime.
  • An unlimited number of indefinite and/or periodic bans on call backs.
  • An unlimited number of stoppages of work for the duration of 1 hour.
  • An unlimited number of stoppages of work for the duration of 4 hours.
  • An unlimited number of stoppages of work for the duration of 8 hours.
  • An unlimited number of stoppages of work for the duration of 12 hours.
  • An unlimited number of stoppages of work for the duration of 24 hours.
  • An unlimited number of stoppages of the performance of all work for unspecified periods of time.
  • An unlimited number of indefinite and/or periodic stoppages on the performance of all work.
  • An unlimited number of indefinite and/or periodic stoppages on the performance of all work away from BRW's Bendigo sites (175 Murphy Street Bendigo & Gladstone Street Bendigo.

• [9] The industrial action that the AMWU seeks to have authorised is:
  • An unlimited number of stoppages of work for the duration of 1 hour.
  • An unlimited number of stoppages of work for the duration of 4 hours.
  • An unlimited number of stoppages of work for the duration of 8 hours.
  • An unlimited number of stoppages of work for the duration of 12 hours.
  • An unlimited number of stoppages of work for the duration of 24 hours.
  • An unlimited number of stoppages of the performance of all work for unspecified periods of time.
  • An unlimited number of indefinite and / or periodic stoppages of all work.
  • An unlimited number of indefinite and / or periodic bans on overtime.
  • An unlimited number of indefinite and / or periodic bans on call backs.
  • An unlimited number of indefinite and / or periodic stoppages on the performance of all work away from BRW's Bendigo sites (175 Murphy Street Bendigo & Gladstone Street Bendigo).

• [10] The submissions of the Respondent are that the 7-day notice period is necessary in order to protect the:
  1. Transport of grain which is used for domestic production of food staples, including flour and bread;
  2. Safe passage of travellers on the Victorian regional rail network; and
  3. Free movement of rail traffic in Victoria.

• [11] Mr Cassidy, the Executive General manager of Corporate Services for Holdco Holdings Pty. Ltd, the parent company of the Respondent gave evidence in the matter. His evidence included the following:

"In my role as Executive General Manager - Corporate Services, I have direct senior responsibility for the Respondent's financial and tax affairs, industrial relations and human resources functions, and operational functions.

The Respondent's employees who will be covered by the proposed agreement maintain rail rollingstock. This means they are employed to make repairs and fix issues with rollingstock such as locomotives, passenger trains, and grain wagons. The employees need to ensure the rollingstock that is going to travel over the rail network is safe for use and does not cause a risk to the health and safety of people or damage to property and infrastructure.

The Respondent does not own the rollingstock. It provides services to its customers who are rail freight and passenger train operators on rail networks predominantly in Victoria.

Delays on the rail network can affect a wide range of stakeholders, including the general public and those relying on other commodities. The Respondent's customers need more than 3 days to source the services of others.

Predominantly, work comes from two customers. Firstly, from Southern Shorthaul Railroad (SSR), which is a subsidiary of Holdco Holdings Pty Ltd, and mainly transports grain in Victoria. SSR transports approximately 98% of grain for use in food production by rail on the east coast of Australia. Secondly, from V/Line, which is the public transport operator of passenger train services across Victoria.

Rollingstock can require maintenance in the Respondent's Bendigo workshops and on the rail network. The work conducted at the Bendigo workshops involves the following:

1. Servicing locomotives. If they don't get out on time, trains can run with reduced horsepower. Typically, one wagon of grain contains approximately 55 to 75 tonnes of grain. If one locomotive is out for servicing, there is not enough horsepower available to pull the grain wagons. The result is that the amount of grain requested for production is not provided to the end customer, which affects production capacity. It is critical for the manufacturing process and timeframe as it is done on a 'just in time' way, meaning that grain customers rely on a steady and consistent supply of grain to manufacture flour and bread. It can't be stockpiled or delivered late or else food staples, like bread and domestic flour, won't get processed.
2. Servicing wagons. Similar to the above, if there are not enough wagons available, not enough grain can be transported.
3. Routine maintenance to rollingstock, including to passenger trains.

There is a limited amount of passenger rollingstock available in Victoria, so if there is a delay to the maintenance and the customer cannot plan around this, train services for Victorians could be cancelled or delayed.

Off-site work usually involves a call out to a non-workshop location on the railnetwork to service a broken-down item of rollingstock.

When the Respondent gets notification of a call-out to a rail site for a train with an identified fault, these are given top priority. Immediate response is required. This is because when rollingstock breaks down on the rail network, it will usually cause network capacity issues. It cannot be pushed off to the side of the road like a truck can. Other services (passenger and freight) can be backed up behind it. Passengers, grain or other commodities cannot get to their destinations.

In the event of a breakdown on the network, the Respondent will send an employee(s) to the site to assess the issue and repair the rollingstock. A key factor for the Respondent is its central location meaning its employees can access a range of locations in Victoria from Bendigo quickly.

A core pillar of the Respondent's business model is that have a quick reflex response to breakdown. Failure to respond quickly and reflexively will seriously damage the Respondent's goodwill with its customers. Customers would likely need to source labour from other providers.

If customers of the Respondent are required to use other maintenance providers, of which there are few in the industry, they would likely look to those located in Melbourne, Cootamundra or Gunnedah.

There are no other employers or providers of the same services as the Respondent in Bendigo that I am aware of.

For example, SSR would likely source labour from Cootamundra to assist with a breakdown in Seymour if there was a ban on work outside the Bendigo workshops in effect. There is limited capacity to assist from Melbourne. Travel from Cootamundra to Seymour would take 4.5 hours while travel from Bendigo to Seymour would take 1.5 hours. The additional 3 hours would have significant consequences on the rail network causing significant delays.

Another example, our passenger train customer would likely need to source labour from Melbourne for a breakdown in Bendigo. This would increase the response time by several hours.

In July 2025, there have been 37 call outs in the Bendigo region alone relating to rollingstock faults requiring attendance in a live environment. This is just over 1 a day.

Notice of 7 days will give BRW's customers more time to make plans to try to source maintenance services elsewhere. It will lessen the big impact that network delays and failure to transport grain and passengers would have on stakeholders."

• [12] The AMWU in response to the Respondent's written submissions made the following submissions:
  • The AMWU refutes the Respondent's assertions around the essential nature of its operations requiring an extension. BRW does not run passenger rail services, and is therefore not responsible for the carriage of passengers or their potential to be stranded. Furthermore, carriage of "food stuffs" is not specific enough to justify a reliance on the specific matter carried to sustain life.
  • BRW operations provide maintenance to its primary client Southern Shorthaul Railroad (SSR). SSR runs freight services in NSW and VIC.
  • Holdco Holdings is the parent company of BRW and SSR. HH/SSR have direct employees who perform the same work as employees covered by the Bendigo Rail Workshops Pty Ltd Enterprise Agreement 2022. As they are not covered by the agreement they will not participate in protected action. The direct employees of HH/SSR are spread across the NSW/VIC freight network.
• • As set out in CEPU & AMWU v CSF Proteins Proprietary Limited T/A CSF Proteins Pty Ltd, where the Commission has evidence of a sufficient supply of replacement labour to allow an employer to take sufficient defensive action it cannot justify granting an extension.[2] The existence of sufficient replacement/replenishment labour as per paragraph 7 can be used to cover any shortages.

• [13] Similarly, the CEPU submits:
  • BRW operates to provide contract maintenance services to other rail providers in terms of providing maintenance and repair services.
  • Its main client is Southern Shorthaul Railroad (SSR) which operates a freight train service throughout regional NSW and Victoria.
  • These two outfits are subsidiaries of the parent company Holdco Holdings. Holdco Holdings oversees the operation of BRW and SSR.
  • HH/SSR have its own employees who can perform maintenance and repair services. These workers are not covered by the Bendigo Rail Workshops Pty Ltd Enterprise Agreement 2022 and will not be participating in protected action.
  • Direct employees of HH/SSR are located in areas including Melbourne, Cootamundra, Lithgow, Nowra, Gunnedah and they can perform maintenance and repair works to the same locations that BRW workers attend. We also note that these workers are currently performing work including the same work the BRW employees are performing.
  • There is no reason why BRW could not use this supply of labour to undertake maintenance and repairs if required.

• [14] It is not disputed and based on the material before me, I am satisfied that:

• 1. The Unions are bargaining representatives for the employees;[3]

• 2. The application specifies the group of employees to be balloted and the questions to be put to the employees;[4]

• 3. A copy of the application was given to the Respondent and the protected action ballot agent within 24 hours of the making of the application;[5]

• 4. The nominal expiry date of the applicable agreement has passed;[6] and

• 5. The Unions are genuinely trying to reach agreement with the Respondent.[7]

• [15] The only disputed issue in these applications for a protected action ballot order concerns the notice requirement for engagement in the proposed employee claim action outlined in each question of the draft orders. Section 443(5) of the Act grants me a discretionary power to specify a longer period of notice than the 3 working days referred to in s.414(2)(a) if I am satisfied that there are exceptional circumstances justifying this.

• [16] The principles to be applied in relation to an extension of the notice period were outlined in decision of the Full Bench in National Tertiary Education Industry Union v Charles Darwin University.[8] In particular, the Full Bench outlined to following:

• • the right to otherwise give three working days' written notice of industrial action "should not lightly be curtailed" by the imposition of a longer period of notice;[9]

• the meaning to be given to the expression "exceptional circumstances justifying" in s.443(5) is that which was discussed in the following terms in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation:

"[10] ... In summary, the expression "exceptional circumstances" requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[10]

• • The determination of whether the circumstances in a particular case are "exceptional" involves an evaluative judgement_._[11]

• • A member of the Commission must first identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are exceptional circumstances, with the phrase "exceptional circumstances" carrying its ordinary meaning.[12]

• • There must then be a consideration whether the identified exceptional circumstances are circumstances "justifying" a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb "justifying" in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.[13]

• • If the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must then be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances.[14]

• [17] These principles and the three-step decision-making process was endorsed by the Full Bench in National Tertiary Education Union v Charles Darwin University.[15]

• [18] Dealing with the first step, whether there are exceptional circumstances, I accept that it is possible that some of the forms of industrial action, such as the longer period stoppages of work and the ban on performance of work away from the Bendigo sites may lead to additional delays in the servicing of rolling stock depending on the circumstances because it would take longer for other maintenance providers to attend. The examples given by Mr Cassidy involved an additional approximate 3-hour delay.[16] An additional delay of such a period of time may lead to a circumstance, given in the description in paragraph 12 of Mr Cassidy's statement, that is an exceptional circumstance.

• [19] However, the first difficulty for the Respondent is that the extension is sought in respect to all forms of industrial action. It's not at all clear how the need for an extension of time is related to, for example, bans on overtime or callbacks.

• [20] The second and more significant difficulty is that the evidence as to the link between the possible impacts that would constitute an exceptional circumstance and the need for an extension and the impacts are vague. I have a statement from Mr Cassidy that the Respondent's customers need more than 3 days to source the service of others. However, there is no explanation as to why that is the case. Beyond that Mr Cassidy states that notice of 7 days will give the Respondent's customers more time to make plans to try to source maintenance services elsewhere. There is no particular information as to how that could not be done in a 3-day notice period as opposed to a longer notice period. Mr Cassidy was provided an opportunity on cross examination to provide a reason the additional days were necessary. His response was:

"It's providing people the notice to potentially do other contingency plans or it might be, you know, we've never been faced with it, I guess. So, we we're a bit unsure what the answer is. We're not sure. We're gonna have to work through it."

• [21] The consideration of the second step contemplated in NTEU v Charles Darwin University is whether the identified exceptional circumstances are circumstances justifying a longer notice period. (emphasis added) I am not satisfied on the evidence provided that it is reasonable or necessary or the circumstances warrant or provide good reason to provide a longer period of notice.

• [22] While there were submissions, but not credible evidence, that there may be public safety issues for passengers or significant economic impacts arising from the failure to deliver supplies of grain, that arise as a result of the taking of industrial action, the Respondent has potential remedies under the Act to seek orders that the action be stopped in such circumstances.

• [23] For the reasons set out above, I am satisfied that the Unions have satisfied the statutory prerequisites for a protected action ballot order, and accordingly, must make a protected ballot action order. However, as outlined above, I am not satisfied there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than 3 working days with respect to all types of protected industrial action listed in the applications. The Orders[17] will be issued conjunctively with this Decision.

• [24] These matters will be assigned to a Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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] See s.437 of the Fair Work Act 2009.

[2] [2024] FWC 2260 at [42].

[3] Fair Work Act (2009), s.437(1).

[4] Ibid, s.437(3).

[5] Ibid, s.440.

[6] Ibid, s.438(1).

[7] Ibid, s.443(1)(b).

[8] [2018] FWCFB 4011.

[10] 2018] FWCFB 4011 at [21].

[15] [2019] FWCFB 1150 at [13]- [15].

[16] Witness Statement of Aaron Cassidy at paragraphs 17-18.

[17] PR790700; PR790701.

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