s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of Kimberly-Clark IFP ANZ Pty Ltd - non-AEC ballot electronic voting

• [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 Kimberly-Clark IFP ANZ Pty Ltd (Kimberly-Clark or Employer). I observe that the application was amended[1] by leave of the Commission to reflect the correct name of the Employer in line with a request made by the Kimberly-Clark.

[2] On 4 February 2026, the Commission was advised that the Employer objected to the Application. The basis of the objection was stated to be:

• The CFMEU has not genuinely tried to reach an agreement. Due, in part, to the CFMEU being unprepared during negotiations meetings and limited engagement with Kimberly-Clark; and
• The proposed industrial action listed is likely to cause risks to the health and safety of employees and customers.

[3] The CFMEU contended it was genuinely trying the reach an agreement and rejected assertions made by the Employer regarding the alleged unwillingness to continue negotiations. It relied upon the declaration of Ms Campbell-Burns, Secretary Pulp & Paper Workers District and President - CFMEU - Manufacturing Division, in support of its position. The CFMEU further contended that the Employer's objection regarding health and safety is not related to the requirements under s.443 of the Act. The CFMEU did confirm that they "would not take action to endanger workers or the public at large".

[4] Neither party sought a hearing. In the circumstances and 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.

[5] Ultimately, for reasons to follow, I have found that the Commission is obliged by the Act to make the PABO. Further, given the scheme of the Act it has not been necessary for the Commission to determine the dispute about the impact of the potential proposed industrial action at this point.

[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 CFMEU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. There is no dispute that the CFMEU 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 CFMEU 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 is that the to the CFMEU has been unprepared during negotiations meetings and has a limited engagement with it. In particular, it asserted that:

• "The Applicant's engagement during meetings has been limited resulting in meetings of short duration";
• "The Applicant's Secretary, Denise Campbell-Burns has taken extended periods of leave, significantly affecting the progression of negotiations"; and
• "The Applicants (recent) response (to a meeting request) demonstrates an unwillingness to continue those negotiations".

• [13] To the extent that Kimerly-Clark is contending that the application is premature given the extent and status of discussions to date, this aspect of the requirements for making a PABO was discussed is a relatively recent Full Bench of the Commission in Kuiper Australia Pty Ltd v The Australian Workers' Union[9] (Kuiper) which stated:

"[31] That is not to suggest that whether a bargaining representative has been, and is, genuinely trying to reach agreement involves an assessment of whether the bargaining representative is "unduly rushing" to take protected industrial action. The Act expressly deals with when protected industrial action can be taken. Application for a protected action ballot order must not be made unless there has been a "notification time" (s 437(2A)) and cannot be made earlier than 30 days before the nominal expiry of an existing enterprise agreement (s 438(1)). Protected industrial action must not actually be organised or engaged in before the nominal expiry date of an existing agreement (s 413(6)) or if a suspension or termination order, Ministerial declaration or intractable bargaining declaration is in operation (s 413(7)). Otherwise, the Act does not dictate when a bargaining representative should seek a protected action ballot order.

[32] The Act contemplates that an application for a protected action ballot order can be made as soon as there has been a "notification time" so long as that date is not more than 30 days before the nominal expiry of an existing agreement. The requirement, in s 443(1)(b), that an applicant has been, and is, genuinely trying to reach agreement does not impose a further de facto time constraint on when protected industrial action can be taken by prescribing that bargaining must have developed to some minimum stage or level. The Act does not countenance such an approach.

[34] An allegation that an application for a protected action ballot order is premature does not, of itself, provide a basis for concluding that the applicant for the order has not been, or is not, genuinely trying to reach agreement. The Act envisages that protected action might be taken early in bargaining. The Commission must simply consider whether, in light of the circumstances operating at the time of its decision, the applicant has been, and is, genuinely seeking agreement. The reference to "premature applications" in Total Marine Services has been doubted or not followed in subsequent decisions, particularly JJ Richards (FWAFB), Farstad Shipping and Esso Australia Pty Ltd v Australian Manufacturing Workers' Union [2015] FWCFB 210; (2015) 247 IR 5. Kuiper did not suggest we should follow the reasoning in the fourth and fifth sentences of paragraph [32] of Total Marine Services."

[14] I am unable to make detailed findings on the limited disputed factual contentions. However, it is tolerably clear that the CFMEU has acted as a bargaining representative for members who would be covered by a proposed enterprise agreement since bargaining commenced in May 2025. Further, there have been a series of 20 bargaining meetings extending up until mid-December 2025 during which proposals have been exchanged and considerable progress made. A major issue that remains unresolved is the wages outcome and the parties have exchanged what appear to be considered proposals. I accept on face value that

Kimberly-Clark has recently sought a further bargaining meeting and the CFMEU has indicated that it was willing to continue negotiations and could provide further dates, but in effect, questioned the utility given what was suggested as the impasse that existed on the outstanding wages issue.

[15] There is no suggestion that the CFMEU is pursuing non-permitted matters or that some ulterior motives are present in the bargaining.

[16] In this case, the evidence before the Commission supports the notion that the CFMEU has been and is genuinely trying to reach an agreement with the Employer. It has also meaningfully engaged and continues to engage with the bargaining process with the genuine objective of reaching an agreement. It also remains committed to negotiating a new enterprise agreement with the Employer and its actions confirm that it is doing so genuinely. The making of a PABO application is not of itself, contrary to that objective.

• [17] To the extent that Kimberly-Clark faintly suggested that the CFMEU was not meeting the good faith bargaining requirements of the Act,[10]this has not been made out on the material before the Commission. I would also accept that the Employer is genuinely seeking an agreement and also appears to have acted in good faith. In any event, whilst the two concepts are related but should not be conflated, I have taken into account the concerns that are directly relevant to the determination of the present matter, where supported by any evidence or materials before the Commission. In that regard, I observe that there is no requirement that the bargaining be exhausted before an application of this kind is made. Further, a PABO application does not stop the bargaining and the good faith bargaining obligations remain, including that the parties must continue to bargain. This also includes that parties must continue to meet where appropriate and genuinely consider and respond to proposals by other bargaining representatives in a timely manner.[11]

• [18] Given the basis of the Employers objection in relation to safety, 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,[12] and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.[13] 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 protected industrial action (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.

• [19] 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,[14] whether the action is notified in accordance with the requirements of the Act,[15] and whether it is industrial action within the meaning of the Act.[16] 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,[17] or causes significant economic harm.[18] Industrial action that is not PIA may be prevented.[19]

[20] In relation to the asserted safety concerns in this case, I would accept that depending upon the precise context and the form, duration and nature of industrial action, such concerns could arise in this enterprise. However, no basis under the terms of s.437 and related provisions has been suggested that would permit the Commission to deny the application on that basis.

• [21] Accordingly, the potential (safety) impact of the proposed questions was 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.[20] I find that the questions concerned here do so.

[22] 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. 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.

[23] On the basis of the material before me, including the declaration of Ms Campbell-Burns, 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 Kimberly-Clark, 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.

[24] 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.

• [25] 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 19 February 2026.[21] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[26] An Order has been separately issued in PR796409.

[27] 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] The application originally cited Kimberly-Clark Australia Pty Ltd.

[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] [2024] FWCFB 378.

[11] Section 228(1)(a), (c) and (d) amongst other requirements.

[12] [2010] FWAFB 526.

[13] [2012] FCAFC 53.

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

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

[21] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

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