Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Office of the Commissioner for Public Employment, Northern Territory Government

Proposed protected action ballot of employees of The Office of the Commissioner for Public Employment, Northern Territory Government

• [1] This is an application by the CPSU, the Community and Public Sector Union (CPSU 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 The Office of the Commissioner for Public Employment, Northern Territory Government (OCPE or Employer). I observe that the entity of the Employer in this matter has been amended to reflect the confirmed position of both parties on that issue.

• [2] I note that the Association of Professional Engineers, Scientists and Managers, Australia (APESMA)[1] and the Health Services Union (HSU)[2] have each made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement. The APESMA matter has resulted in a PABO being issued and the consequential compulsory conciliation conference has already been conducted. The HSU application is yet to be determined by the Commission.

• [3] On 15 August 2025, the employer advised that it did not object to the application subject to confirmation of there being an extended notice period of five (5) working days in relation to the proposed forms of industrial action. The CEPU, in effect, accepted that there were the relevant exceptional circumstances and agreed to the amendment.

• [4] In the circumstances, I have granted leave to amend the application and decided to determine the matter on the papers without holding a hearing.

• [5] On the basis of the material before me, including the declaration of David Villegas, Regional Director, setting out the steps taken by the CPSU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with OCPE, 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.

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

• [7] The CPSU sought a ballot period of 8 working days from the making of the PABO on the basis that there were a relatively small number of employees and the vote would be electronic. I accept that the ballot in this matter could, as a matter of practicality, be conducted within the period sought. However, in exercising the discretion in s.443(3A), the Commission must have regard to all of the circumstances in determining the ballot period.[3] This includes the requirements in relation to conducting the compulsory conference pursuant to s.448A, incorporating the need to provide proper notice to all of the bargaining representatives involved and being mindful of the potential consequences of nonattendance. I have had regard to these matters and the submissions of the CPSU, and determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close is 29 August 2025.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. By consent, the extended notice period of 5 working days applies to the items listed within Clause five (5) of the Order.

• [9] An Order has been separately issued in PR790758.

• [10] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related HSU matter if a PABO is ultimately granted. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference, including APESMA and the HSU. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[3] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NSW) Pty Ltd [2023] FWCFB 134.

[4] This is, in effect, 10 working days from the making of the Order.

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