Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of AKD NSW Pty Ltd

• [1] This is an application by the Construction, Forestry and Maritime Employees Union (CFMEU 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] AKD NSW operates an integrated timber processing facility located in the regional NSW town of Tumut. The facility consists of a greenmill where logs are broken down into lumber, kilns where selected lumber is dried, drymill where lumber is planed and sorted into finished sizes and structural grades ready for sale. It also has a timber treatment facility that treats timber to protect against insect attack and decay.

• [3] I note that the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)[1] and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[2] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

• [4] On 3 September 2025, the Commission was advised that the Employer objected to two related aspects of the application, and more particularly, the accompanying proposed order. AKD NSW contended that there should be certain exemptions from the industrial action contemplated in several of the proposed questions (2(a),(c),(d) and 3(a)) in clause 5 of the proposed order on health and safety grounds, and requested that these items be deleted or amended. The employer also raised that the above proposed forms of industrial action "could have significant impact on safety of individuals and site plant and equipment if industrial action is taken within the broad and ambiguous terms proposed."

• [5] In supplementary submissions, AKD NSW also pointed to the nature of its process and the potential consequences if action within the scope of the cited ballot questions were to be undertaken. These were said to include individual safety risks, and environmental and community hazards arising from proposed housekeeping, maintenance, paperwork and other bans.

• [6] The CFMEU contended in response that AKD NSW had failed to establish that the proposed industrial action is capable of resulting in risks to health and safety, nor has it pointed to any relevant provision in the Act to support its objection. It argued that the mere possibility that one form of contemplated industrial action may raise safety concerns is not grounds for objecting to the relevant questions, and maintained that "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". The CFMEU further contended that the Employer has not established how the proposed questions are ambiguous and stated the language used in the listed questions is "ubiquitous in PABOs" previously issued by the Commission. The CFMEU highlighted amongst other matters, that if industrial action was notified there are further notice requirements provided under s.414(6) of the Act, and that in any event it had satisfied all of the requirements set out in s.437(3) of the Act.

• [7] The parties did not request that a hearing be conducted and were content to rely upon written submissions provided to the Commission. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

• [8] The application itself and the making of an order in this matter was not otherwise opposed.

• [9] 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."

• [10] Section 443 of the Act 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."

• [11] I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter and do not arise from the contested aspect. Further, compliance with the matters raised in the provisions above is also not otherwise in dispute.

• [12] I observe that the bargaining scheme of the Act is outlined in various decisions of the Commission including in John Holland v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and The Australian Workers' Union (John Holland)[3], and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.[4]

• [13] In relation to the asserted safety concerns, I would accept that depending upon the precise context and the form, duration and nature of industrial action, such concerns may arise in this enterprise. However, no evidence has been provided by AKD NSW that would enable a detailed assessment to be made at this juncture and no basis under the terms of s.437 and related provisions has been suggested by the Employer that would permit the Commission to require a 'safety carve out' from the ballot questions where one is not provided by an applicant. However, and in any event, it is also important to understand the scheme of the Act and the role played by a PABO. The function of the PABO is established by Part 3-3 of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for relevant enterprise agreements. Further, the taking of protected industrial action by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement.

• [14] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,[5] whether the action is notified in accordance with the requirements of the Act,[6] and whether it is industrial action within the meaning of the Act.[7] Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population, or of part of it, or causes significant damage to the Australian economy, or an important part of it,[8] or causes significant economic harm.[9] Industrial action that is not protected industrial action may be prevented.[10]

• [15] Accordingly, although the questions (the proposed industrial action) are not supported by the Employer, the objection about the potential impact of the proposed questions is not presently relevant. I observe that the Commission does not, in determining a PABO application, approve or disapprove of the proposed forms of industrial action beyond consideration of the ballot questions required by s.443(1)(a) and s.443(3)(d) of the Act. That is, the ballot questions must state the nature of the proposed industrial action. The word "nature" is one of high generality, and in context refers to the "character, kind or sort" of the industrial action. The proposed action specified in the question must be something that is capable of constituting "industrial action" within the meaning of the definition of that expression in s 19(1) of the Act.[11] I find that the questions concerned here do so.

• [16] Further, consistent with the scheme of the Act, the ballot questions (if the PBAO is issued and the ballot endorses the questions) set the broad nature of the potential protected industrial action. The detail of what industrial action is to occur (within the parameters of the endorsed ballot questions), is provided when the applicant gives notice of the industrial action to the employer. This must meet the particular notice requirements of s.414 of the Act. I observe that it is at this point that the Employers' concerns may be relevant, noting that the CFMEU may elect to notify action in a manner that takes account of apparent safety matters.

• [17] I will now turn to the second aspect of the employer's objection where it faintly contended that the "broad and ambiguous terms" proposed would have safety impacts on individuals, site plant and equipment. This has been largely dealt with above. In John Holland, the 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."[12]

• [18] In National Tertiary Education Industry Union v Curtin University,[13] the Full Bench stated:

"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."[14]

• [19] The same must follow for s.443(3)(d) of the Act. I find that all of the proposed questions meet the relevant requirements of s.437 and s.443 and have included them in the protected action ballot sought by the CFMEU.

• [20] For reasons previously stated, the matters that the Employer is concerned about appear in part to be, or arise from, the absence of specificity in particular questions about the detail of the proposed action and the potential scope involved, which is a matter which may be relevant to the notice requirements in s.414 of the Act. Further, depending upon the form of action notified, this may lead to one of the 'suspend or terminate' grounds cited earlier, but this is not presently relevant to my consideration of an application made pursuant to s.437(3) if I am otherwise satisfied that the application, including the questions, meet the requirements of that and related provisions.

• [21] On the basis of the material before me, including the declaration of Luke Hayden, NSW Senior Organiser, setting out the steps taken by the CFMEU 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.

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

• [23] 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 17 October 2025.[15] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [24] An Order has been separately issued in PR791387.

• [25] 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 if a protected action ballot order is ultimately granted in those applications. 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.

[3] [2010] FWAFB 526.

[4] [2012] FCAFC 53.

[5] Sections 437, 408 and 409 of the Act.

[11] National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 at [50].

[13] [2022] FWCFB 204.

[15] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer