Fair Work Act 2009

s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Australian Catholic University Limited

• [1] This is an application by the National Tertiary Education Industry Union (NTEU 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 Australian Catholic University Limited (ACU or Employer).

• [2] On 3 September 2025, the Commission was advised that the Employer does not object to the Application but considered that it was "unnecessary, premature and would not assist the parties in reaching an agreement in relation to a new enterprise agreement." The Employer also sought an extended period to provide the lists of its employees to the ballot agent and in consequence of that, sought a commensurate extension of the ballot period.

• [3] The NTEU has maintained its application and seeks that an order be made in the proposed terms.

• [4] In the circumstances, having foreshadowed this course of action, I have decided to determine the matter on the papers without holding a hearing based upon the submissions advanced by the parties.

• [5] As to the notion that the application has been brought prematurely or is unnecessary, I observe that a Full Bench of the Commission[1] has confirmed that the Act does not require bargaining between the parties to have reached a minimum stage. So long as the procedural requirements of the Act have been met, the Commission must consider whether the Applicant has been, and is, genuinely trying to reach an agreement. There is no need for the bargaining to have reached an impasse or for the taking of protected industrial action to be a last resort. The assertion that a PABO is premature in the sense advanced here does not, of itself, provide an adequate basis for refuting this consideration.

• [6] In this case, the evidence before the Commission supports the notion that the NTEU has been and is genuinely trying to reach an agreement with ACU.

• [7] On the basis of the material before me, including the declaration of Jeane Wells, Director of Industrial and Legal, setting out the steps taken by the NTEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with ACU, 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.

• [8] 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 consequently is authorised to conduct the ballot.

• [9] As to the employee information required by the Order, I observe that the Commission's standard form of order generally affords the applicant and the employer three working days to provide the relevant member/employee lists to the ballot agent. The Employer requested that it be given five working in this matter. The basis of this request was stated to be that additional time was necessary because of the volume of information and the fact that the ballot spans multiple ACU campuses and there is information across (multiple) systems. The Employer also requested that the ballot period be extended to correspond with any additional time granted to provide its employee list.

• [10] In response the NTEU noted that the Employer had previously been able to provide its employee list within three working days in 2022 and did not accept that it was unable to do so in this matter. In the alternative, the NTEU stated that should the Commission grant the additional time for the Employer to provide its employee list as sought, then the ballot period should, as indicated by ACU, be extended in a commensurate way.

• [11] The above represents the extent of the information before the Commission regarding this matter.

• [12] This issue is connected with the requirements of s.443(3A) of the Act which requires that the Commission establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. There are a range of case specific considerations, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and the ballot process itself, that are or may be relevant to the exercise of the discretion to set the ballot period. Although not a direct factor in this case, within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot period is also a relevant statutory context and consideration in setting that period.[2]

• [13] The factors that ACU rely upon are consistent with the kind of case specific considerations mentioned above. I understand that the NTEU's reference to 2022 is to another earlier enterprise agreement making process, however I have no details to assess whether this is comparable to the present application and intended PABO process.

• [14] Given the status of the material before the Commission and the prima facie case advanced by ACU, I have decided to accommodate the additional time sought by it. I have also given the same extension to the NTEU noting that it may of course provide its materials to the ballot agent earlier. In balancing the interests of the parties, I have only extended the ballot period by an additional day as I consider that this is workable and consistent with the considerations established by the Act. In this regard, I note that Fair Vote may apply to the Commission under s.447(2) to seek an extension to the ballot period if required.

• [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 18 September 2025.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [16] An Order has been separately issued in PR791410.

• [17] 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] Kuiper Australia Pty Ltd v The Australian Workers' Union [2024] FWCFB 378 at [31] to [34].

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

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

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