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 Access Solutions (Tasmania) 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 in relation to certain employees of Access Solutions (Tasmania) Pty Ltd (Access Solutions or Employer).

• [2] The Application was lodged with the Commission on 5 November 2025.

• [3] The application was allocated to my Chambers the next day for determination. At the same time, I was advised the Respondent objected to the Application.

• [4] The grounds of objection articulated by the Respondent are that the Applicant has not been genuinely trying to reach agreement. This objection is founded on their position that the agreement is in its final draft form and only awaiting BOOT analysis and an employee vote and that the employer has taken all possible steps, in difficult circumstances, to reach a genuine agreement with its employees and their representatives. Further, adding that the proposed action, if taken, would have a negative impact on its business and requesting a ballot period of 30 working days of the making of any order.

• [5] The CEPU presses their application. Their position is that the Respondent has not identified any relevant grounds which give the objection merit. They submit that s.443 of the Act requires the Commission to make a protected action ballot order if an application has been made under s.437 and the Commission is satisfied that the Applicant has been, and is, genuinely trying to reach agreement.

• [6] There is no dispute the application has been made under s.437 of the Act.

• [7] On receipt of the application, my Chambers provided the parties with an opportunity to provide further submissions or indicate if they would like to be heard further in relation to the application by 10:00am, Friday 7th November 2025.

• [8] The Respondent indicated it relied on its written materials provided to the Commission on 6 November 2025. The Applicant made no further submissions. Neither party sought to be heard further in relation to the application. I have, therefore, considered it appropriate in the circumstances to determine the application on the material filed.

• [9] As the Applicant has identified s.443 of the Act sets out when the Commission must make a protected ballot order as follows:

"443 When the FWC must make a protected ballot order

(1) The FWC must make a protected ballot order in relation to a proposed enterprise agreement if:

(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."

• [10] The Applicant's position is that these conditions have been met and the Commission must make an order. The Respondent argues that the Applicant cannot be said to be genuinely trying to reach agreement in circumstances where the Employer has been making every effort to reach a genuine agreement and finalise the terms to ensure it is ready for employee consideration, subject to a BOOT analysis being completed.

• [11] The Respondent has not provided any evidence to support its assertions. The Applicant's position is supported by a declaration of Mr Chris Clark. This declaration confirms that the applicant has been engaged in genuine bargaining to reach an agreement with the Respondent for some time. That it understood in-principle agreement had been reached on 8th September 2025 with requests that a final agreement be prepared and put to vote prior to 30th September 2025. That for over two months, the respondent has not proceeded to put the agreement to vote and that the CEPU and its members seek to pursue their claims to finalise and conclude an agreement. Further, that the CEPU and its members working for the respondent have been, and continue to be, genuinely trying to reach an agreement with the Respondent.

• [12] I have considered these submissions.

• [13] On the basis of the material before me, including the declaration of Chris Clark, State Secretary CEPU Tasmania, 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 Access Solutions, 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.

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

• [15] 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 December 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [16] An Order has been separately issued in PR793547.

• [17] This matter will now be programmed by my Chambers for the s.448A compulsory conciliation conference. An Order will be issues 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] 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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