Fair Work Commission|2025-12-09

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Porta Products Pty Limited [2025] FWC 3762 (9 December 2025)

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 Porta Products Pty Limited

[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 Porta Products Pty Limited (Porta or Employer).

[2] It is related to an application made by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) for a PABO in relation to the same proposed agreement. I made the PABO sought by the AMWU on 5 December 2025 and issued my reasons for doing so on 8 December 2025 (the AMWU Decision).[1]

[3] In the circumstances and with the consent of both parties, I have decided to determine the matter on the papers without holding a hearing.

[4] Employees of Porta who are to be balloted for the purposes of the protected action ballot are covered by the Borg Manufacturing Pty Ltd Mount Gambier Agreement 2022 (2022 Agreement) which has a nominal expiry date of 1 July 2025. The 2022 Agreement covers Production employees, who comprise the majority of the workforce, and Trades employees who comprise a minority of the workforce. The CEPU and AMWU are seeking a new enterprise agreement which applies to Trades employees only.[2]

[5] The CEPU filed an earlier application for a PABO which I heard jointly with the application by the AMWU. The CEPU then determined to withdraw the application and amend the Form F34B declaration in support of an application for a PABO. The substance of the objection raised by the Employer remains the same as that which was advanced in the hearing and is outlined below.
[6] On 8 December 2025, the Commission was advised that the Employer objected to the Application on the grounds that:

The CEPU has not met the requirements of section 443(1)(b) of the Act.
Given the requirements of section 437(2A) of the Act, the Commission needs to be satisfied that the application followed a 'notification time', Porta notes that:

Porta has not agreed to commence bargaining for a separate Trades enterprise agreement following the nominal expiry of the 2022 Agreement on 1 July 2025; and
there is no evidence that a written notice has been given to Porta in accordance with section 173(2A) of the FW Act.

[7] These arguments were dealt with comprehensively in the AMWU Decision, so it is unclear why the Employer is continuing to press them, particularly in light of the decision of the Full Bench in Maritime Union of Australia v Maersk Crewing Australia Pty Ltd (Maersk),[3] in which the Full Bench determined that s.437(2A) does not require that there has been a notification time in respect of the enterprise agreement proposed by the PABO applicant. In that case, the Full Bench made the following observations which are relevant to the matter before me (citations omitted):

[26] The legislative purpose in the enactment of s.437(2A) is to ensure that protected industrial action cannot be taken until after bargaining has commenced - that is, after the time when the employer agrees to bargain, or initiates bargaining (or one of the other circumstances constituting the 'notification time' within the meaning of s.173(2)). To import into s.437(2A) a requirement that the 'notification time' must be in respect of the agreement proposed by the PABO applicant would mean (relevantly in the context of the present matter) that the employer must have agreed to bargain or have initiated bargaining for a proposed enterprise agreement with precisely the same scope as that sought by the PABO applicant. Such a construction would have the effect of removing scope from the matters in bargaining in support of which employees can engage in protected industrial action. This would be the case because a bargaining representative would only be able to apply for a PABO in relation to a proposed enterprise agreement containing the scope proposed by, or agreed with, the employer.

[27] A consequence of the construction proposed by Maersk is that by not agreeing on the scope of the proposed enterprise agreement, an employer would be able to prevent employees from engaging in protected industrial action unless they have first obtained a majority support determination, scope order or low paid authorisation. It seems to us that such a consequence is inimical to the scheme of the FW Act. The scope of a proposed enterprise agreement can itself be the subject of bargaining and bargaining within the meaning of the FW Act may have commenced even though the parties disagree about the scope of the proposed enterprise agreement. As the Full Bench observed in Stuartholme School v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane,:

'[t]he terms of [s237] unambiguously suggest that bargaining may have commenced under the Fair Work Act even though the parties to the bargaining process are in disagreement about the scope of the proposed agreement'.

[28] Importantly, in the absence of a scope order, the parties to a proposed enterprise agreement are entitled to continue to bargain over the scope of the agreement until that matter is settled through bargaining. If there is a notification time in relation to the proposed agreement, protected industrial action in support of a claim for a particular scope may be taken.

[8] In the AMWU Decision, I found that that the notification time for the proposed enterprise agreement was 15 October 2025 when the Employer agreed to bargain within the meaning of s.173(2)(a) by attending the first bargaining meeting.[4] That finding is applicable to the application before me, given that it deals with the same proposed agreement. In the circumstances, I am satisfied that the CEPU is permitted to make the application under s.437(1).

[9] On the basis of the material before me, including the declaration of Bronte Colmer, Administration, 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 Porta, I am satisfied that all of the requirements in s.443(1) of the Act have been met.

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

[11] 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 January 2026.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[12] An Order has been separately issued in PR794670.

[13] This matter will be assigned to another Member of the Commission along with the related matter 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.

[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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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Porta Products Pty Limited [2025] FWC 3762

At a glance

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Judgment (28 paragraphs)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Porta Products Pty Limited [2025] FWC 3762 (9 December 2025)

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Legislation Cited (1)