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 Health Services Union (HSU 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 the Office of the Commissioner for Public Employment - Northern Territory Government (OCPE or Employer). I observe that the HSU has sought to amend the original application to cite the employer entity set out above and this has been confirmed by the Employer.

• [2] I note that The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Community and Public Sector Union (CPSU)[1] has each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement. The APESMA application was made some short time ago, and the Commission has already granted that application and conducted the compulsory conciliation conference. The CPSU application has more recently been granted, and the conference has not yet been conducted in that matter.

• [3] On 18 August 2025, the Commission was advised that the Employer did not object to the Application; however, it sought an extended period of notice of industrial action be provided under the terms of the order. This was the subject of discussion between the parties and ultimately a consent position has been reached.

• [4] In the circumstances, I have decided to grant leave to amend the application to reflect the agreed position and to otherwise determine the matter on the papers without conducting a hearing.

• [5] On the basis of the material before me, including the declaration of Jason Grills, Organising Coordinator, setting out the steps taken by the HSU 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 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.

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

• [8] The OCPE's request for additional notice of the specified proposed industrial action relies upon the capacity in s.414(2)(b) of the Act for the Commission to include such a term in the Order sought by this application. Section 443(5) then provides as follows:

"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."

• [9] I observe that in relation to both related matters, an extended period of industrial action was provided in each of those orders. However, there were different notice periods involved, and they were included by consent. Each application must be determined on its own merits

• [10] Having regard to the circumstances of this matter and the consent of the parties, I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying extended periods 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 periods will apply to certain forms of industrial action as specified in clause 15 of the Order.

• [11] An Order has been separately issued in PR790809.

• [12] 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, including APEMSA and the CEPU. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[2] This is, in effect, 10 working days from the commencement of the Order.

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