s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of Wingham Beef Exports Pty Limited

• [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 in relation to certain employees of Wingham Beef Exports Pty Limited (Wingham 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] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

• [3] On 12 June 2025, the Commission was advised that the Employer did not object to the Application provided the CFMEU addressed concerns in relation to ballot question 4. The CFMEU subsequently advised that it continues to press question 4 which is framed in the following terms:

In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:

1. An unlimited number of indefinite or periodic partial work bans?

• [4] The Employer submitted that the proposed drafting of question 4 gives rise to ambiguity with respect to what work would, or would not be undertaken during the work ban, to the extent that the employees could not possibly have a proper understanding of the actual implications such an action has for them at work. The Employer pointed to the definition of 'partial work ban' in s.470(3) of the Act, and submitted that given the open-ended nature of this definition, it is not possible for an employee to understand the nature of the industrial action proposed by the CFMEU. The Employer submitted that the CFMEU should either agree to remove this question from the proposed order or propose an alternative form of wording that enables the nature of the industrial action proposed to be readily understood.

• [5] The parties consented to the matter being determined on the papers without holding a hearing.

• [6] Section 437 of the Act set out the requirements in relation to an application for a protected action ballot order. It provides:

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.

• [7] Section 443 of the Act sets out the circumstances in which the Commission is required to make a protected action ballot order. 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.

• [8] In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,[2] 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.[3]

• [9] This approached was affirmed by the Full Bench in National Tertiary Education Industry Union v Curtin University,[4] who said the following in relation to the proper construction of s.437(3)(b):

Section 437(3)(b) also requires that the question(s) must include specification of "the nature of the industrial action". In context, this is to be read as meaning that the "the nature of the industrial action" must be the subject of the question - that is, it must be the matter for which a "yes" or "no" answer is sought. 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 FW Act.[5]

• [10] In that case, the Full Bench went on to say:

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.[6]

• [11] Question 4 is one that is capable of being answered 'yes' or 'no' by the employees participating in the ballot and refers to an unlimited number of indefinite or periodic partial work bans. 'Partial work ban' is an expression which is used in the Act and is defined in s.470(3), therefore it is a term which has a clear and specific meaning and is not ambiguous. A 'ban' is a form of industrial action as defined by s.19 therefore by describing the proposed action in Question 4 as a 'partial work ban', the CFMEU has specified the 'nature of the proposed industrial action' as required by s.437(3), noting that all that is required is to specify the 'character, kind or sort' of the industrial action, given that the word 'nature' is one of high generality.

• [12] I do not accept that the Employer's contentions that the employees could not possibly have a proper understanding of the implications that the proposed action in Question 4 has for them at work, or that it is not possible for an employee to understand the nature of the industrial action proposed by the CFMEU. The matters that the Employer is concerned about appear to be the lack of specificity in Question 4 which is a matter which may be relevant to the notice requirements in s.414(1), but is not 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 provision. Having regard to the parties' submissions and the relevant authorities, I am satisfied that Question 4 meets the requirements of s.437(3)(b) and propose to include this question in the protected action ballot sought by the CFMEU.

• [13] On the basis of the material before me, including the declaration of Karl Hitchcock, 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 Wingham, 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.

• [14] The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [15] 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 27 June 2025.[7] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [16] An Order has been separately issued in PR788201.

• [17] 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] [2010] FWAFB 526.

[4] [2022] FWCFB 204.

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

Printed by authority of the Commonwealth Government Printer