[2026] FWC 1168

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 Saputo Dairy Australia Pty Ltd - non-AEC ballot electronic voting

[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 Saputo Dairy Australia Pty Ltd (Saputo Dairy or Employer).

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

[3] On 2 April 2026, the Commission was advised that the Employer objected to the application on certain grounds. These grounds arise from the wording of proposed ballot questions 9, 10, and 11 in clause 5 of the draft order. Further, as a consequence of the proposed question 11, the employer also contended that the CEPU is not genuinely trying to reach an agreement. The CEPU subsequently clarified certain ambiguities and made amendments to the above-mentioned questions. The Employer noted some further issues in proposed Questions 9 and 10 but did not wish to press those objections, but maintained its objection in relation to Question 11. The Employer relied on their written submissions.

[4] I also observe that the Employer raised certain objections to the CEPU's declaration in support of its application including that it had sought a good faith bargaining order that is presently before the Commission. However, it indicated in effect that it did not press that aspect but wished for its position on the declaration to be noted.

[5] Neither party sought a hearing. In the circumstances I have granted leave to amend the application to reflect the revised draft order. Further, noting the nature of the objections raised, I have accepted the positions and stated circumstances of the parties at face value and decided to determine the matter on the papers without holding a hearing.

[6] Section 437 of the Act provides as follows:

"437 Application 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 relevantly 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."

[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] The CEPU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. There is no dispute that the CEPU was entitled to bring the application, and a valid application has been made under s.437 of the Act. The substantive requirement that must be met is that the CEPU has been and is genuinely trying to reach an agreement with the Employer - s.443(1)(b) of the Act.

• [10] The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has previously been summarised, in effect, by the Full Bench in Esso Australia Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union.[2] This includes, as relevant to this matter:

"[18] While there is a relationship between the good faith bargaining requirements in s.228 of the Act and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement."[3]

"[57] The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.[4] The Commission should have regard to all of the relevant facts and circumstances of the particular case."[5]

"[53] It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement."[6]

"[54] The reference to the Commission being 'satisfied' means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant union. The expression 'has been, and is', imports temporal considerations. The Commission's attention is thereby directed to the applicant's prior conduct at the time the application for a protected action ballot order is determined. Given the context the reference to 'an agreement' is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the Act."[7]

[11] The expression "genuinely trying" has also been taken to be concerned with the genuineness or authenticity of the trying; that is, the efforts, by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act.[8]

[12] The substance of the Employer's position as ultimately pressed is that the CEPU is not genuinely trying to reach agreement because the form of the proposed question 11 further obstructs the bargaining process. The ballot question is as follows:

"11. The imposition of a ban, for a specified period, including indefinitely, on contact with managers regarding the proposed Enterprise Agreement included but not limited to reading or replying to company correspondence or attending meetings or briefings?"

[13] I observe that this is perhaps a regrettable form of potential action; however, it has not been suggested that it does not constitute industrial action within the meaning of s.19 of the Act. It would appear to be part of an employee's normal work to engage with their managers about such matters.

• [14] Noting the role of the Commission in relation to the consideration of ballot questions in an application of this kind,[9] question 11 appears to be capable of being industrial action,[10] depending upon which employees are involved and what form of action is notified. This is sufficient for present purposes.[11] Any risk beyond that associated with the question as an underpinning for protected industrial action is a matter for the CEPU. The ban, if implemented may also frustrate or delay the process, and may have implications for the conduct of the bargaining representatives. However, I do not consider that this form of action necessarily means that the CEPU is not genuinely seeking to reach an enterprise agreement. In light of the broader conduct of the CEPU in this regard not being pressed by the Employer, I have not considered that disputed conduct more generally and this remains a matter for the good faith bargaining order application. For reasons stated earlier, I have dealt with the competing positions on face value.

[15] In this case, the evidence that is before the Commission supports the notion that the CEPU has been and is genuinely trying to reach an agreement with the Employer. The making of a PABO application is not of itself, contrary to that objective.

[16] 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 Saputo Dairy, 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.

[17] The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.

• [18] 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 7 May 2026.[12] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[19] An Order has been separately issued in PR798364.

[20] This matter will be assigned to another 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.

[2] [2015] FWCFB 210.

[4] Ibid at [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia [2009] FWAFB 368 (Total Marine).

[6] Ibid at [35] - but qualifying a further statement made in Total Marine.

[8] J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 at [89] and Kuiper at [26] to [30].

[9] See generally National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 at [54] and [55].

[10] Section 19(1)(b) of the Act and see the discussion in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 4740 at [48] to [50].

[12] This is, in effect, 30 calendar days from the making of the Order and was the period sought in the application. This also aligns with the related application.

Printed by authority of the Commonwealth Government Printer