[2025] FWC 2620

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 AKD NSW 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 AKD NSW Pty Ltd (AKD NSW or Employer).

• [2] I note that the Construction, Forestry and Maritime Employees Union (CFMEU) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) have each made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

• [3] On 4 September 2025, the Commission was advised that the Employer 'objected' to the application on the basis of their preference for the ballot agent to be amended from Vero Engagement and Voting Solutions Pty Ltd (Vero Voting) to the Australian Electoral Commission (AEC). No other objections have been raised.

• [4] The CEPU has maintained its original application and proposed ballot agent.

• [5] In the circumstances, having foreshadowed this course of action, I have decided to determine the matter on the papers without holding a hearing based upon the submissions advanced by the parties.

• [6] The preference of the Employer about the utilisation of the AEC was said to be that the applications lodged by the CFMEU and the AMWU referenced above nominated the AEC as the ballot agent. The Employer contended that having the AEC conduct the ballot in this application would facilitate efficiencies in the process and when responding to requests for information, because the same ballot agent would be involved in all of the related matters.

• [7] In response, the CEPU contends that the Employer has not identified any exceptional circumstance that would justify another person or entity being the protected action ballot agent. The CEPU also submitted that it is common for Unions to utilise different ballot agents in applications that affect the same proposed agreement. Further, it posits that it is the Union which bears the cost of the independent ballot agent and thus which ballot agent to use is a commercial decision properly within the scope of each union.

• [8] Vero Voting has been approved by the Commission as an eligible protected action ballot agent under s.468A(1)(b) of the Act. The AEC is an eligible protected action ballot agent by virtue of s.468A(1)(a).

• [9] Section 444 of the Act relevantly provides as follows:

(1) This section applies if the FWC must make a protected action ballot order under subsection 443(1).

(1A) The FWC must, in accordance with subsections (1B) to (1D) of this section, decide the person or entity that is to be the protected action ballot agent for the protected action ballot.

(1B) The person or entity must be the person or entity specified in the application for the protected action ballot order as the person or entity the applicant wishes to be the protected action ballot agent, unless:

(a) the person or entity specified in the application does not meet the requirements of subsection (1C) (unless subsection (1D) applies); or

(b) the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the protected action ballot agent.

(1C) The person or entity must be an eligible protected action ballot agent.

(1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied that:

(a) there are exceptional circumstances that justify the ballot not being conducted by an eligible protected action ballot agent; and

(b) the person is a fit and proper person to conduct the ballot; and

(c) any other requirements prescribed by the regulations are met.

Note: Other than the Australian Electoral Commission, an entity that is not a person cannot be the protected action ballot agent for a protected action ballot.

(a) conditions that a person must meet in order to satisfy the FWC, for the purposes of paragraph (1D)(b), that the person is a fit and proper person to conduct a protected action ballot; and

(b) factors that the FWC must take into account in determining, for the purposes of paragraph (1D)(b), whether a person is a fit and proper person to conduct a protected action ballot.

(2) The FWC may decide that a person (the other person) is to be the independent advisor for a protected action ballot if:

(a) the FWC has decided that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the ballot; and

(b) the FWC considers it appropriate that there be an independent advisor for the ballot; and

(i) the other person is sufficiently independent of each applicant for the protected action ballot order; and

(ii) any other requirements prescribed by the regulations are met."

• [10] The issue raised by AKD NSW brings into focus the functions and powers of the Commission in determining the ballot agent and associated matters in making a PABO. I have not heard comprehensive submissions about the import of these provisions in this case. My view is that the combined effect of s.444(1A), (1B) and (1C) appears to be that if the ballot agent specified by the applicant to a PABO application (specified ballot agent) is an eligible protected action ballot agent, such as Vero Voting, the Commission must generally decide to include that agent in the order. The specified ballot agent may not be an eligible protected action ballot agent, if under s.444(1D), there are exceptional circumstances, and the Commission finds that the alternative agent is a fit and proper person. There is also scope under s.444(1B)(b) for another person or entity to be the ballot agent, if there are exceptional circumstances justifying the ballot not being conducted by the specified ballot agent. That person must also be either an eligible protected action ballot agent, or a fit and proper person approved in exceptional circumstances.

• [11] The AEC is also an eligible protected action ballot agent and s.444(1B)(b) would appear to enable the Commission to substitute it as the ballot agent, but only in the case of relevant exceptional circumstances justifying that measure.
• [12] Given the context, the Commission's normal approach to the notion of exceptional circumstances would appear to be appropriate. Amongst many other authorities to the same effect as applied to various provisions of the Act, the following approach taken by the Australian Industrial Relations Commission[2] and adopted by this Commission[3] is apt:

"[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."

• [13] The form of ballot proposed in the application is an electronic vote with a proposed ballot period of 10 working days. In the related matters, the AEC will be conducting a postal ballot and the ballot period involved is 30 working days, which is the minimum period required by the AEC for such ballots. I have presumed that this is also intended by AKD NSW.

• [14] Section 450 of the Act provides as follows:

"450 Directions for conduct of protected action ballot

(1) This section applies if the protected action ballot agent is not the Australian Electoral Commission.

(2) The FWC must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:

(b) the voting method, or methods, to be used (which cannot be a method involving a show of hands);

(d) the addition of names to, or removal of names from, the roll of voters;

(e) any other matter in relation to the conduct of the ballot that the FWC considers appropriate.

Note 1: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.

Note 2: A protected action ballot agent must not contravene a term of a direction given by the FWC in relation to a protected action ballot (see subsection 463(2)).

(3) A direction given under subsection (2) may require the protected action ballot agent to comply with a provision of this Subdivision (other than subsection 454(5)) in relation to a particular matter.

Note: Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.

(4) To enable the roll of voters to be compiled, the FWC may direct, in writing, either or both of the following:

(a) the employer of the employees who are to be balloted;

(b) the applicant for the protected action ballot order;

to give to the FWC or the protected action ballot agent:

(c) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and

(d) any other information that it is reasonable for the FWC or the protected action ballot agent to require to assist in compiling the roll of voters."

• [15] It is evident that the Commission has the power to determine the form of ballot to be conducted. This arises from s.450(2)(b) in the case of non-AEC ballot agents and other related provisions. Further, s.450(2)(e) of the Act enables the Commission to include directions about any other appropriate matter in relation to the conduct of the ballot.

• [16] I am not satisfied that exceptional circumstances exist that warrant the appointment of the ballot agent other than the specified ballot agent in this matter. I am also satisfied that Vero Voting is able to properly conduct the form of ballot proposed, and AKD NSW did not suggest otherwise. It merely indicated a preference for the AEC, in part, because the related matters before the Commission had nominated the AEC. I would however accept that there may be some additional convenience in having a common ballot agent, however this does not establish the kind of (exceptional) circumstances required for the Commission to appoint an alternative to the specified ballot agent.

• [17] Given that determination, I am also not persuaded that the nature of the proposed ballot should be altered from that set out in the application. In that regard, s.443(3A) of the Act requires that the Commission establish a ballot period that enables the ballot to be conducted as expeditiously as practicable and this informs both the form of ballot, given the specified ballot agent nominated in this application and its capacity to conduct an electronic ballot, and the ballot period itself as determined below.

• [18] As to the application more generally, on the basis of the material before me, including the declaration of Jarred Pearce, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with AKD NSW, 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.

• [19] For reasons outlined above, the ballot is to be conducted by Vero Voting.

• [20] 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 19 September 2025.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [21] An Order has been separately issued in PR791428.

• [22] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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] B2025/1377 and B2025/1378 - both applications have been granted and orders made.

[2] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848.

[3] National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011.

[4] 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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