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 Zinfra Contracting 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 Zinfra Contracting Pty Ltd (Zinfra or Employer).

• [2] On 10 November 2025, the Commission was advised that the Employer objected to the application on the basis that the ballot questions should be put to employees to answer individually rather than collectively. That is, that the proposed forms of industrial action should not be the subject of a single consolidated ballot question. The Employer also objected to item 4 of the proposed ballot question(s) based on the contention that the employees would not be able to discern what protected industrial action they were being requested to approve.

• [3] In response, the CEPU maintained its proposed consolidated ballot question and contended that it had used this form of ballot question with various other PABOs issued by the Commission. It also submitted that their members would have a clear understanding of item 4 because they had drafted the proposed list of industrial action.

• [4] I observe that proposed ballot item 12 as set out in the draft order has been deleted as it was a duplicate of item 6. Further, the correct name of the Employer has been used by the Commission.

• [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] 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 sets out the circumstances in which the Commission is required to make a PABO. It 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 are also not in dispute.

• [9] In relation to the consolidated form of ballot question, there is much to be said for giving the employees involved an opportunity to express a separate view on each form of potential industrial action. This is more democratic and in many senses is to be preferred. However, the requirements of the Act are broadly expressed, that is, the nature of the proposed industrial action must be stated in the ballot question or questions.[1] As a Full Bench of the Commission has made clear[2] in relation to proposed ballot questions:

"[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been "made under section 437" for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered "yes" or "no" by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling "informed consent" goes beyond the text of the provision and constitutes a gloss on the statute. The concept of "informed consent" is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued. We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.

[54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole. It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.

[55] That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant's intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question."

• [10] In that light, I did not require the CEPU to amend the form of ballot question in this matter. I also observe that for reasons set out below, if there are deficiencies in the ballot question for future purposes, that is a risk taken by the Applicant.

• [11] In relation to the disputed item 4 of the proposed ballot question, as affirmed in NTEU v Curtin University, in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,[3] that Full Bench made the following observations:

Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.[4]

• [12] Item 4 of the ballot question refers to bans on undertaking "any off-road jobs". The context for this matter is that the work performed by the relevant employees under the proposed agreement includes the maintenance of powerline infrastructure which involves the replacement of power-poles, cross-arms, insulators and conductor and work associated with these activities. Additionally, the employees also perform maintenance and construction work on electrical substations. In submissions, the Employer confirmed that this work is substantially field based and employees are often required to travel to work sites on dirt roads, tracks, and through farms/paddocks to access electrical infrastructure. Given this context, although the detail of the proposed ban is not specified, the nature of the potential action is discernible. As such, that item is one that has a relevant meaning and is capable of being answered 'yes' or 'no' by the employees participating in the ballot as part of the consolidated question. A 'ban' is a form of industrial action as defined by s.19 therefore by describing the proposed action in item 4 as an imposition of a ban for a specified period, or a 'partial work ban', the CEPU has specified the 'nature of the proposed industrial action' as required by s.437(3), noting that all that is required is to specify the 'character, kind or sort' of the industrial action, given that the word 'nature' is one of high generality.

• [13] Accordingly, I do not accept the Employer's contentions that the employees could not discern the nature of the industrial action proposed by the CEPU. The matters that the Employer is concerned about appear to be the lack of specificity in item 4 which is a matter which may well be relevant to the notice requirements in s.414(1), but is not relevant to my consideration of an application made pursuant to s.437(3) if I am otherwise satisfied that the application, including the question(s), meet the requirements of that provision. Having regard to the parties' submissions and the relevant authorities, I am satisfied that the ballot question including item 4 meets the requirements of s.437(3)(b) and have included the question in the protected action ballot sought by the CEPU.

• [14] On the basis of the material before me, including the declaration of Adrian Shaw, State 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 Zinfra, 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.

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

• [16] 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 23 December 2025.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [17] An Order has been separately issued in PR793593.

• [18] 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.

[1] Sections 437(3)(b) and 443(3)d) of the Act.

[2] National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 (NTEU v Curtin University).

[3] [2010] FWAFB 526.

[5] 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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