s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of Etex Australia Pty Ltd - AEC ballot

[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 Etex Australia Pty Ltd (Etex or Employer).

[2] On 26 February 2026, the Commission was advised that the Employer did not otherwise oppose the application but objected to the order being made on the basis of what it contended was the ambiguity of 8 ballot questions.

[3] In response, the CFMEU contended that the matters raised by the Employer were not related to any of the requirements set out in s.443 of the Act and that the Commission will typically not interfere with PABO ballot questions unless they are incapable of being responded to. Neither party sought be further heard on the issue.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] 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.

[6] 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.

[7] 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.

[8] The ballot questions in the proposed Order are as follows:

"In support of reaching an enterprise agreement with your employer, do you authorise the taking of the following protected industrial action (separately, concurrently and/or consecutively)?

1. An unlimited number of stoppages of the performance of all work for: 15-minute periods, 30-minute periods, 1-hour periods, 2-hour periods, 4-hour periods, 8-hour periods and/or 24-hour periods?

1. An unlimited number of indefinite and/or periodic bans on the performance of one or more of the following types of work:

1. Housekeeping and cleaning duties in all or part of the workplace;

1. The performance of work outside of the specifications of the role for which they were employed;

1. Use of computers, tablets, or radios, except for when required for safety purposes;

1. Working through, staggering, or changing the usual times of rest breaks or pauses;

1. Undertaking work where the employee is concerned that they are not adequately supervised or staffed;

1. Use of forklifts, chariots and/or lifting aids;

1. Maintenance of forklifts and/or chariots, including recharging;

1. Undertaking work using machines or processes where employees have reported concerns about health and safety risks;

1. Completing specific processes, paperwork, approvals or reports;

• Conducting induction of, assisting in training, or supervising labour hire employees;

1. The communication and distribution of Union & Industrial Campaign Material in the form of:

1. Attaching union and industrial campaign material, while working, to outgoing mail and email and adding it to materials and displays;

1. A ban on performing work while not wearing union and industrial campaign clothing, hats, stickers, badges, lanyards and/or signs; and

1. Speaking to the public, while working, about the industrial action during work related communications?

[9] The Employer did not contend that any the ballot questions did not involve action that would be industrial action within the meaning of s.19 of the Act and I have dealt with the application on that basis. The objections raised by the Employer to certain elements of ballot question 2 included the following contentions and questions:

• 2e what type of meetings does this refer to? - if they are meetings which involve talking about safety for example we would feel this is not appropriate
• 2h what is meant by this clause?
• 2i this clause is subjective and open to interpretation so we would like clarity on this.
• 2l we would expect that undertaking work with safety concerns would not form part of industrial action, however, would be normal part of work at Etex as we encourage our teammates to stop an activity if they are concerned about safety
• 2n assisting in communications - what does this mean?
• 2t overnight stays - what is meant by this?
• 2v please specify what this clause relates to?
• 3c what is the intent of this clause?

[10] In essence, the Employer contends that the relevant ballot questions lack clarity or have an uncertain interaction with work health and safety considerations.

• [11] In considering this aspect, it is appropriate that I say something about the bargaining scheme of the Act which 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,[1] and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.[2] In general terms, 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 PIA in support of bargaining for relevant enterprise agreements. Further, the taking of PIA 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.

• [12] 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,[3] whether the action is notified in accordance with the requirements of the Act,[4] and whether it is industrial action within the meaning of the Act.[5] 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,[6] or causes significant economic harm.[7] Industrial action that is not PIA may be prevented.[8]

• [13] Accordingly, the potential (safety) 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.[9]

[14] Further, consistent with the scheme of the Act, the ballot questions (if the PABO is issued and the ballot endorses the questions) set the broad nature of the potential PIA. 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. This is the point where sufficient detail and clarity must be provided to the Employer to enable it to more fully understand and respond to the proposed industrial action.

• [15] In terms of the clarity and detail of the ballot questions themselves, as affirmed in NTEU v Curtin University, in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,[10] 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.[11]

[16] I am satisfied that the nature of the potential industrial action contemplated by each of the proposed ballot questions is discernible and the questions capable of being responded to by the employees concerned.

[17] On the basis of the material before me, including the declaration of Darren Connelly, Victorian District 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 Etex, 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.

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

• [19] 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 14 April 2026.[12] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[20] An Order has been separately issued in PR797211.

[21] 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] [2010] FWAFB 526.

[2] [2012] FCAFC 53.

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

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

[10] [2010] FWAFB 526.

[12] This is, in effect, 30 working days from the making of the Order and is the minimum period required by the AEC.

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