s.437 - Application for a protected action ballot order

The Association of Professional Engineers, Scientists and Managers, Australia

Coliban Region Water Corporation T/A Coliban Water

Proposed protected action ballot of employees of Coliban Region Water Corporation - non-AEC ballot electronic voting

[1] This is an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Coliban Region Water Corporation (Coliban).

• [2] I note that the Australian Municipal, Administrative, Clerical and Services Union (ASU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

[3] On 23 February 2026, the Commission was advised of several concerns held by Coliban in relation to the application. When these concerns were raised with APESMA, some were resolved and some were not. Coliban sought to be heard in relation to its remaining concerns, and I conducted a hearing on 25 February 2025 to determine the matter after having earlier directed Coliban to file and serve an Outline of Submissions as to its concerns (which it did). Having regard to the submissions of the parties I consider the application should be granted, and my reasons are as follows.

[4] Section 437 of the Act sets out what is to be set out in an application for a PABO. 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.

[5] Section 443 of the Act sets out the circumstances in which the Commission is required to make a PABO. It provides as follows:

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.

[6] There are other statutory requirements for a PABO to be made that are not in issue in this matter. Further, most of the matters raised in the provisions above are also not in dispute.

[7] Coliban argues that some of the ballot questions set out in the application are in a form that lack specificity or are ambiguous. It sought amendment to some of the questions to ensure employees participating in the ballot clearly understand and are informed about the protected action they are contemplating, and to provide Coliban with greater certainty and clarity as to any potential impact of protected action on the health and safety of its employees and members of the public, and to ensure Coliban can adequately meet its statutory and regulatory obligations. It makes these submissions in the context that Coliban is a regional water corporation, providing high quality drinking water to residents of its catchment area, as well as water security and sustainability for the region, and waste/sewage services which ensure public health. It says, in summary:

1. Question 5 - which contemplates an unlimited number of indefinite or periodic bans on Project Work - lacks specificity and is ambiguous as to the meaning of "Project Work". It does however recognise there is a definition of "Project Work: in the Coliban project management manual, which contains examples. Coliban seeks the removal of this question. Alternatively, Coliban seeks that the question should identify the specific project which would be impacted by the proposed protected action.
2. Questions 12 - 14 - which contemplate an unlimited number of indefinite or periodic bans on responding to internal emails from employees, consultants and contractors - lack specificity and are ambiguous as to the impact of any protected action given it is not possible to determine the content of affected emails and it would be virtually impossible for employees, the Applicant and/or the Respondent to determine whether taking protected action under this item would represent an action which could threaten the health or safety of employees or the public. Coliban acknowledges that commitments regarding public safety are included in the draft Ballot Order but considers the risk an employee may make an incorrect judgement regarding any proposed protected action and questions of public health and safety is took great a risk for it to accept. Coliban seeks the removal of these questions. Alternatively, it seeks greater specificity or detail should be included in each of these questions, such as the types of communications which would be impacted be categorised and / or described in greater detail in the proposed Ballot questions.
3. Questions 22 - 23 - which contemplate an unlimited number of indefinite or periodic bans on consultants and contractors - lack specificity and are ambiguous as to the impact of protected action because for similar reasons to those set out in respect to questions 12 - 14. Coliban seeks the removal of these questions. Alternatively, it seeks greater specificity or detail should be included in each of these questions, such as the types of meetings which would be impacted be categorised and / or described in greater detail in the proposed Ballot questions.
4. Question 27 (now appearing in the order as question 26) - which contemplates an unlimited number of indefinite or periodic bans on performing work to mitigate the effects of industrial action - is ambiguous. Coliban seeks specific detail of the type or nature of work which would be impacted. It says the lack of specificity hampers its ability to make its own assessment of the potential impact on staff and public health and safety should notice be given of the proposed protected action, which in turn constrains its capacity to adequately meet its statutory and regulatory obligations. Coliban seeks the removal of this question, albeit it acknowledges that an alternative version of the question, which APESMA is content to adopt, provides it "additional clarity".

[8] Coliban also says takes issue with a draft order proposed by APESMA that would require it to provide the Voting Agent with information including the personal email address and postal address of employees. It says the information is not necessary for the conduct of an electronic ballot process and notes the increased potential for data breaches whenever sensitive personal information is shared or transmitted. It seeks that any order remove such a direction or alternatively, any such direction includes "clear orders to the Voting Agent regarding destruction or deletion of employee information, where that information is unrelated to individuals who are ultimately including on the eligible voter register.

[9] APESMA disagrees with these assertions and says:

1. Question 5 does not lack specificity and is not ambiguous because Project Work is a clearly defined and well understood term within the organisation.
2. Questions 12 - 14 and 22 - 23 are sufficiently clear and allow for a determination of health and safety impacts to be taken.
3. Question 27 is not ambiguous and is sufficiently clear.
4. The directions sought in the application as to the provision of employee information are appropriate, but it would concede the removal of the requirement to provide postal address information.

• [10] In essence, Coliban submits that several of the questions posed in the application are not sufficiently clear to meet the requirements of s 437(3)(b) of the Act. In relation to this requirement, a Full Bench of the Commission has said[2]:

"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."

• [11] In John Holland v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); The Australian Workers' Union[3] another Full Bench observed as follows:

"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."

• [12] I consider that the nature of the potential industrial action contemplated by each of the questions in contest is discernible, and the questions capable of being responded to by the employees concerned. To a large extent, the objections raised by Coliban appear misconceived. In its own words, its objections are based largely on concerns that it be provided with greater certainty and clarity as to any potential impact of protected action on the health and safety of its employees and members of the public, and to ensure Coliban can adequately meet its statutory and regulatory obligations. These submissions are misconceived because I am concerned at this time with whether the questions are capable of being responded to by the employees. I consider they are. Coliban's concerns appear to arise from the kind of error identified by the Commission in TWU v Prosegur Australia Pty Ltd[4]- confusing the requirements of s 443(3)(b) with requirements such as that set out in s 414(5) - where a person engaging in protected industrial is required to specify the nature of the action to allow the employer an opportunity to take defensive measures in response to the it. To some extent this was conceded at hearing.

1. In relation to question 5, I do not accept that the term "Project Work" lacks specificity or is ambiguous such that employees are incapable of responding to the question. I accept employees can adequately respond to a question using this term.
2. In relation questions 12 - 14, and 23 - 24 I consider employees entirely capable of responding to these questions, which propose bans on responding to emails or attending meetings. Coliban's objection appears almost entirely based on its own interest in discerning the nature of the industrial action.
3. In relation to question 27, I do not accept that the reference to performing working to mitigate the effect of industrial action is ambiguous, such that employees are incapable of responding to the question. A response requires an understanding of the word "mitigate" which is a well understood and common word.

[14] I note Coliban submits that in a number of areas, the "ambiguity" it complains of comes from the interaction between the questions posed, and the commitment proposed to be provided in relation to "public safety". I do not agree that the commitment provided to public safety renders the questions incapable of being responded to by employees. If there is ambiguity arising from precisely what is meant by the commitment provided to public safety, this may be an issue APESMA and its members will need to navigate with care, if it ultimately becomes the case they may wish to take action that is protected under the Act.

• [15] Further, I intend to give directions as to the provision of employee information in the terms outlined in the draft order provided by APESMA (as amended to remove postal information) including directions that the personal email address (if available) be provided. The order sought is in the form ordinarily issued by the Commission. The information, while perhaps not always required for an electronic ballot, is a failsafe should some issue occur with the other contact details provided. The Protected Ballot Agent is an eligible Protected Ballot Agent within the meaning of s 444(1)(C) of the Act and the Fair Work Regulations 2009[5] and itself subject to professional and legal obligations as to the storage of data. The direction sought by Coliban in the alternative is therefore not one I am minded to make, satisfied as I am that the information will be dealt with in an appropriate manner.

[16] On the basis of the material before me, including the declaration of Isabella Himmelreich, Senior Victorian Organiser, setting out the steps taken by the APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Coliban Water, 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.

[17] 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 is authorised to conduct the ballot.

• [18] 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 13 March 2026.[6] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[19] An Order has been separately issued in PR797105.

[20] This matter will the subject of a s.448A compulsory conciliation conference along with the other related matters. An Order will issue in due course 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] National Tertiary Industry Union v Curtain University [2022] FWCFB 2024 [53]

[3] [2010] FWAFB 526 [19]

[4] [2021] FWCFB 1562 [38]

[5] See in particular Fair Work Regulations 2009 r 3.11

[6] This is, in effect, 12 working days from the making of the Order and was the specific date sought in the application.

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