Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot of employees of The University of Newcastle

• [1] On 16 September 2025 the National Tertiary Education Industry Union (NTEU) made an application under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of the University of Newcastle (Employer) (Application).

• [2] The Application stated that the employees are currently covered by the University of Newcastle Professional Staff Agreement 2022 and the University of Newcastle Academic Staff Agreement 2022.

• [3] On 17 September 2025, the Employer notified the Commission that it objected to the Application on two grounds:

(i) That the Application includes questions which are vague and do not set out with sufficient specificity the forms of industrial action to be voted on by employees, as required by s.437(3)(b) of the FW Act; and

(ii) That the NTEU did not comply with form and content requirements by correctly specifying the group of groups of employees who are to be balloted, as required by s.437(3)(a) of the FW Act. The Employer's objection is based on the current enterprise agreements being The University of Newcastle Professional Staff Enterprise Agreement 2023 and The University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023.

• [4] The matter was subsequently allocated to my chambers and set down for conference/hearing at 9:00am on 18 September 2025.

• [5] It is convenient to deal with the second objection first. At the commencement of the proceedings, I indicated to the parties that I proposed to amend the Form F34A application and Form F34B declaration pursuant to s.586(a) of the FW Act to insert the correct the names of the enterprise agreements wherever necessary. There was no objection to that course.

• [6] Accordingly, and pursuant to s.586(a) of the FW Act, the Form F34A application and Form F34B declaration are amended by substituting references to "University of Newcastle Professional Staff Agreement 2022" and the "University of Newcastle Academic Staff Agreement 2022" wherever appearing with the words "The University of Newcastle Professional Staff Enterprise Agreement 2023" and "The University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023" respectively. That amendment disposes of the Employer's second objection.

• [7] Turning to the first objection, its relates to proposed question 4 which is set as follows:

In support of reaching an Enterprise Agreement with your employer, do you authorise industrial action against your employer, to be taken separately, partially, concurrently and/or consecutively, on any number of occasions, in the form of:

• [8] The Employer submits that question is vague, meaningless, and nonsensical, because The University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023 does not include a span of hours, except for employees engaged as Elicos Teachers in accordance with Schedule 17. It follows, the Employer submits, that it is unclear what is the form of the proposed industrial action to be voted on by academic staff covered by The University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023.

• [9] In support of its objection, the Employer cited the decision of a Full Bench of the Commission in John Holland Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union and The Australian Workers' Union [2010] FWAFB 526 (John Holland). At paragraph [19], the Full Bench stated:

[19] 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.

• [10] In National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 (Curtin University), a Full Bench of the Commission affirmed that paragraph [19] of the decision in John Holland was the correct approach to the construction and application of s.437(3)(b).[1] In arriving at that conclusion, the Full Bench stated:[2]

[49] ...The fundamental element of s 437(3)(b) is that the application must specify the "question or questions" to be put to the employees to be balloted. What is specified must therefore properly be able to be characterised as a "question" in the ordinary sense, that is, (relevantly) "a sentence in an interrogative form, addressed to someone in order to elicit information; ... a proposal to be debated or voted on, as in a meeting or a deliberative assembly". The subject matter and context of s 437(3), namely that the question is for the purpose of being put to a vote of relevant employees, indicates that the question must be one that is capable of being answered "yes" or "no".

[50] 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. However, it is not necessary that the specified action constitute industrial action in all conceivable circumstances, for the reasons stated by the Federal Court (Tracey J) in Ambulance Victoria v United Voice:

"Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can

never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present." (underlining added)

[51] The above passage points to the need to distinguish between what must be specified pursuant to s 437(3)(b) in an application for a protected action ballot order and what must be specified in a notice of employee claim action under s 414(1). In respect of the latter, s 414(6) requires that the notice "specify the nature of the action and the day on which it will start". As stated in Prosegur (2) albeit by reference to s 443(3)(d) rather than s 437(3)(b):

"[38] ... Sections 443(3)(d) and s 414(6) use different language and are concerned with

different subject matters. The former provision requires specification of the nature of the 'proposed industrial action' in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s 414(6) requires specification of the nature of 'the action' - that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of the industrial action to be taken will be known to the bargaining representative. The provision's purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(3)(d)."

[52] In a similar vein, the Full Bench in Total Marine Services said that "the precise timing

and length of the action is not determined at the stage of authorisation."

[53] 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. The concept of "informed consent" is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued).

[54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole.45 It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.

• [11] Having regard to the Full Bench decisions in John Holland and Curtin University, I do not accept the Employer's submission that the NTEU's proposed question 4 is vague, meaningless, or nonsensical. The question uses the expression "a ban", followed by identifying the work activity to be banned, "working outside the span of hours". It is one that is capable of being answered, and specifies a character, kind or sort of industrial action as defined in s 19(1): Curtin University at [56].

• [12] It is trite to observe that terms and conditions of enterprise agreements will affect different classes of employees differently. That some, or even most employees, are not subject to a span of hours under the terms of The University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023 while others are, does not mean that the question is ambiguous, lacks clarity, or is incapable of being answered. It follows that I am satisfied that question 4 meets the requirements of ss.437(3)(b) and 443(3)(d) of the FW Act.

• [13] I am satisfied that the NTEU has made an application pursuant to s.437 of the FW Act for a protected action ballot order. I am also satisfied that the NTEU has been, and is, genuinely trying to reach an agreement with the University of Newcastle, that there has been a notification time in relation to the proposed agreement, and that all of the requirements in s.443(1) of the FW Act have been met.

• [14] It follows that a protected action ballot order must be made pursuant to s.443(1) of the FW Act.[3] In relation to the protected action ballot order, I note two matters:

(i) 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 FW Act and consequently is authorised to conduct the ballot; and

(ii) For the purposes of s.443(3)(c) of the FW Act, the Commission has determined that the date by which voting is to close is 3 October 2025. This also establishes the ballot period for the purpose of s.448A(2) of the FW Act.

• [15] An Order [PR791873] will be issued with this decision.

• [16] This matter will be listed for a conference pursuant to s.448A of the FW Act. The parties will receive an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference, as well as Directions to ensure that the parties attend the conference ready to conduct meaningful negotiations.

Mr J Gava for the National Tertiary Education Industry Union.

Mr M Sainsbury for the University of Newcastle_._

Ms L Nelson for the CPSU, the Community and Public Sector Union.

[3] J.J. Richards at [69] per Flick J (with whom Tracey J agreed).

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