Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Licensed Aircraft Engineers Association, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Australian Workers' Union

Proposed protected action ballot of employees of Qantas Airways Limited - non-AEC ballot electronic voting - joint application - whether single or multiple ballots permissible and appropriate in this matter - order made for single ballot with additional directions to the ballot agent.

• [1] This is a joint application by the Australian Licenced Aircraft Engineers Association (ALAEA), "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and the Australian Workers' Union (AWU) (collectively, the Applicants), made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Qantas Airways Limited (Qantas or Employer).

• [2] On 27 November 2025, the Commission was advised that the Employer objected to certain aspects of the Application. The parties subsequently reached a consent position on all but one of the issues raised. However, the parties were unable to reach agreement on whether there should be, in effect, 3 separate ballots or one collective ballot, and the consequential applicable phrasing of Clause 14 and related provisions of the proposed ballot order.

• [3] The Applicants propose that a consolidated ballot be conducted across the relevant membership of the 3 unions. They contend that "the Act allows a joint application, and a natural consequence of a joint application is a joint ballot result." Importantly, although they propose to supply separate relevant employee (membership) lists to the ballot agent, they contemplate a single combined ballot with a consolidated employee voting list and a single declaration of the (combined) result.

• [4] Qantas does not oppose the PABO being made on a joint basis but has pressed its position that "clause 14 of the order should provide that there will be 3 separate ballots (one for each Union) to ensure it is clear that the number of employees and valid votes cast are determined for each Union and not as a whole." I observe that a number of other provisions of the proposed order would need to be adjusted to reflect that outcome.

• [5] In the circumstances, and having received and reviewed further written submissions, I have decided to grant leave to amend the application to reflect the agreed amendments and conducted a hearing to determine the issues remaining in contention.

• [6] The most immediately relevant provisions of the Act are as follows:

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

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.

Without limiting section 609, the procedural rules may provide for the following:

(a) how a provision of this Act that applies in relation to an applicant for a protected action ballot order is to apply in relation to joint applicants for such an order;

(b) the joinder, with the consent of each existing applicant, of one or more bargaining representatives to an application for a protected action ballot order;

(c) the withdrawal of one or more applicants from a joint application for a protected action ballot order.

1. Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.

442 Dealing with multiple applications together

The FWC may deal with 2 or more applications for a protected action ballot order at the same time if:

(a) the applications relate to industrial action by:

(b) the FWC is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.

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:

(c) the group or groups of employees who are to be balloted;

(d) the date by which voting in the protected action ballot closes;

(e) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;

(f) 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;

(g) 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.

(3) 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.

s.450 Directions for conduct of protected action ballot

(1) This section applies if the protected action ballot agent is not the Australian Electoral Commission.

(2) The FWC must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:

(b) the voting method, or methods, to be used (which cannot be a method involving a show of hands);

(d) the addition of names to, or removal of names from, the roll of voters;

(e) any other matter in relation to the conduct of the ballot that the FWC considers appropriate.

Note 1: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.

Note 2: A protected action ballot agent must not contravene a term of a direction given by the FWC in relation to a protected action ballot (see subsection 463(2)).

(3) A direction given under subsection (2) may require the protected action ballot agent to comply with a provision of this Subdivision (other than subsection 454(5)) in relation to a particular matter.

Note: Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.

(4) To enable the roll of voters to be compiled, the FWC may direct, in writing, either or both of the following:

(a) the employer of the employees who are to be balloted;

(b) the applicant for the protected action ballot order;

to give to the FWC or the protected action ballot agent:

(c) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and

(d) any other information that it is reasonable for the FWC or the protected action ballot agent to require to assist in compiling the roll of voters."

• [7] The undertaking of a ballot of this kind is part of the scheme of the Act that permits protected industrial action (PIA) to be taken by employees in prescribed circumstances. Of further direct relevance to the present issue, s.459(1) of the Act provides as follows:

"459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(i) during the 30‑day period starting on the date of the declaration of the results of the ballot; or

(ii) if the FWC has extended that period under subsection (3) - during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot."

• [8] The Applicants contend that they have met the requirements of s.443 and that as a result, the PABO should be issued. Further, they contend that s.437(1) provides that 2 or more bargaining representatives may act jointly in making an application for a PABO. As such, the Act permits the making of the application and the proposed order in the form claimed.

• [9] In support of their position, the Applicants contend that:

• The task is to construe the actual language used in its statutory context. The scheme under the Act expressly contemplates joint applications, single groups or multiple groups of employees, and the Commission specifying how the ballot and the role are to be organised. There is nothing in the text of the Act that requires separate ballots for each representative.

• The relevant provisions in the Act operate in the background of the Acts Interpretation Act 1901 (Cth) (AI Act). In particular, s.15AA which states that a provision is to be interpreted to best achieve its purpose, and s.23 which states that words in the singular include the plural and vice versa, unless a contrary intention appears.

• The Act in s.439 permits procedural rules to be made for joint applications and none have been made. As a result, there is a discretion as to how the ballot is to be conducted.

• Several decisions of the Commission have approved the granting of an Order where a joint ballot is conducted.

• Numerically, the overall voting cohort is not large, and therefore, any division of the conduct of the PAB and separate reporting of outcomes is simply not necessary;

• Purpose is important, but it cannot be used to be read in a requirement that is not expressed in the text. The object is to test whether employees wish to engage in particular protected industrial action, not to guarantee each union a separate insulated exclusive ballot.

• The Act promotes the most efficient and expeditious conduct of this PAB and not allowing the outcomes of joint PABOs to be conducted and reported collectively would, from the perspective of the Applicants, significantly undermine the utility of joint applications.

• Section 453 sets out the principles underpinning which employees are eligible to be included in the roll of voters. This complies with the requirements of s.453(a) and (b) as all eligible voters will be covered by the proposed agreement and are represented by one of the applicants in the role of bargaining representative.

• [10] In terms of discretion, the Applicants also contend, in effect, that they have been negotiating together, including with joint logs of claims, and that as Qantas has had the benefit of this approach, a joint single ballot should be conducted.

• [11] The Applicants also contended in the alternative that a joint ballot could be conducted where the outcomes for each union's members in relation to each specified action may be reported.

• [12] In support of its position that, in effect, multiple ballots and results are required and the present application should be refused, Qantas contends that:

• The use of the singular 'a group' and 'a bargaining representative' in s.437(5) identifies that a group of employees to be balloted can only include those employees who are represented by a bargaining representative for the purpose of the PABO application, and that such employees can only be represented by one bargaining representative. Each employee falls within a 'group' as determined by reference to their bargaining representative for the purposes of any ballot and cannot be in more than one 'group' pursuant to section 437(5). Accordingly, where the 3 applicants are acting jointly, there must be 3 'groups' of employees who are to be balloted and, therefore, 3 separate declarations of results.

• There are a number of statutory indicators that support Qantas' construction and suggest the order the Unions seek cannot be made:

• there is no provision in the Act which expressly allows bargaining representatives, acting jointly, to combine their employees for the purposes of conducting a single protected action ballot;

• s.437A provides for a process for PABO applications in relation to multi-enterprise agreements where the group or groups of employees specified in the application are employees of different employers. Relevantly, it provides that the application has effect as if it were multiple applications (one in relation to each employer) which are identical, save for the group or groups of employees specified in the application. This section was explained by the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) as follows:

"This item would insert new section 437A which would require the FWC to issue one PAB order in relation to the employees for each employer when dealing with bargaining for a multi-enterprise agreement. This means that any protected industrial action arising out of the ballot would be conducted on an employer-by-employer basis. The amendments would not apply to related employers, as they continue to make single-enterprise agreements (see item 627B of the Bill)."

• This supports the proposition that PABOs should be conducted and declared by reference to each individual group of employees, as determined by their membership or affiliation with each particular bargaining representative;
• s.443(1)(b) requires the Commission to be 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'. Again, the regime treats each individual applicant separately, which further supports the proposition that the members of each individual applicant cannot be grouped together;

• s.443(3) requires the PABO itself to specify both the name of each applicant for the order and the group or groups of employees who are to be balloted. By reference to subsection 437(5), it is evident that the 'group or groups' of employees referred to in subsection 443(3)(b) are those who are represented by a bargaining representative who is an applicant. If there was only one applicant named in the PABO, there would only be one group of employees. However, where there are 3 applicants named in the PABO who are acting jointly, there are to be 3 groups of employees balloted;

• ss.442 and 446 of the Act expressly contemplate that multiple protected action ballots may be held concurrently in relation to industrial action by employees of the same employer or employees at the same workplace. These provisions demonstrate that the Act contemplates the holding of concurrent protected action ballots in respect of different groups of employees of the same employer or workplace. This is further supported by the Explanatory Memorandum to the Fair Work Act 2009 (Cth) in relation to section 442 which provided at paragraph [1769] as follows:

"In some cases, it may be expedient for FWA to deal with related applications together, even in the absence of a joint application. FWA may deal with related applications at the same time if the applications relate to industrial action by employees of the same employer or employees at the same workplace (e.g., a construction site) (clause 442). However, FWA must be satisfied that dealing with the applications at the same time would not unreasonably delay the determination of any of the applications (paragraph 442(b))."

• s.452 deals with the compilation of a roll of voters for the purpose of a protected action ballot. The agent appointed for the purpose of the protected action ballot is granted power by subsection 452(3)(a) to direct the employer of the employees to be balloted, the applicant for the PABO, or both to provide the agent with the names of employees in the 'group or groups' to be balloted. Again, the distinction between 'group' and 'groups' is suggestive that where there is more than one applicant then there is to be more than one group of employees to be balloted (otherwise, the use of the word 'groups' is unnecessary); and

• s.457 addresses how the protected action ballot agent must declare the results of the ballot. This provision is consistent with a construction which contemplates different ballots being conducted for each of the 3 groups in the present case. This has the potential for there to be 3 different results based on the separate constituency of each of the 3 groups.
• The purpose of protected action ballots is set out at section 437 and provides:

"The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement." (Emphasis added)

• This object would not be met where a single pool of voters is established in circumstances where there are 3 unions involved as applicants. This is because the combination of the votes of the separate constituencies of the Unions in the protected action ballot will prevent the unions from identifying the preferences of their own members. For example, consider a scenario where the members of 2 unions voted to take protected industrial action, but the members of the third union (which had a greater constituency than the combined total of the former 2) voted against taking protected industrial action. In this situation, if there were a single pool of voters, the votes in favour of taking protected industrial action would be less than the requisite 50%. However, the 2 smaller unions would be unaware that their members wanted to take industrial action, and it would negate their ability to engage in protected industrial action. Accordingly, it cannot be the intended purpose of Division 8 to allow for the creation of one combined pool of voters and only one result in circumstances where there are multiple applicants for a PABO.

• If the contrary were true, this would effectively allow unions to expand their eligibility rules or use the benefit of members in Unions outside of their eligibility rules to take protected industrial action. This cannot be the intent and operation of the provisions.

• [13] Qantas further contends that even if it could do so, the Commission should not make the Order in any event: It does so on the following basis:

• • The Unions appear to accept that there should be 3 separate and distinct rolls of voters, referable to their individual cohorts of members.[1] In those circumstances, it is necessary for there to be 3 separate declarations of results to allow for employees and employers to determine what action had 'at least 50% of the employees on the roll of voters for the ballot' voting in the ballot, and more than 50% of those approving the ballot for such action to be authorised in accordance with s.459 of the Act. There is no basis to amalgamate the rolls for the purposes of the declaration of results; and

• By combining employees, it allows for the Unions to escape their individual obligations to ensure a majority of their own members wish to take protected industrial action. It also creates the potential for the majority of one group of employees to be overwhelmed by other employees represented by different bargaining representatives who may have differing industrial objectives (see s.459 with respect to the number of votes required for a PABO to be successfully voted up) as contended earlier.

• [14] Qantas also contends that there was no evidence of any of the claimed benefits of the joint ballot in this case and the Commission should not permit a ballot process to operate as a "gerrymander" to, in effect, avoid the purpose of the PABO provisions.

• [15] In the further alternative, Qantas contends that if there was a discretion to make a joint order and ballot, the Commission could allow the ballot process to be undertaken jointly but require the ballot agent to declare results by reference to the separate cohorts of employees represented by the 3 applicants.

• [16] I observe that the parties have not been able to identify where this particular issue has been conclusively dealt with by the Commission. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Paul Buchanan v Coca-Cola Europacific Partners Australia Pty Ltd,[2] Wright DP adopted a proposed combined ballot on the basis that "there does not appear to me to be any impediment to the Commission making such an order, particularly where, as in this case, there is no objection by the employer."[3] I also observe that there are other examples where 'joint' orders of this kind sought by the Applicants in this matter have been issued in both combined and separate ballots based upon the uncontested applications involved, without any substantive reasons being issued touching upon the issue.[4]

• [17] The Act in s.437(1) expressly, and in s.439 more indirectly, contemplates that 2 or more bargaining representatives may act jointly in making an application for a PABO. The Act also contemplates in s.442 a different context where 2 or more separate applications are made in relation to the employees of the same employer or at the same workplace, and allows for such matters to be heard together.

• [18] It appears to me that the Act is differentiating between these 2 categories. The present application falls within the first category, and the Act contemplates that a joint application for the making of a (single) PABO may be made and granted.

• [19] The group of employees specified in s.437(5) is taken to include only employees who will be covered by the proposed agreement and are either represented by a bargaining representative who is the applicant for the PABO, or are a bargaining representative for themselves but are members of an employee organisation that is an applicant for the PABO. This can apply equally to having a single ballot with multiple applicants or to having a group of the employees to be balloted defined for each applicant.

• [20] There are some indications that the Act contemplates multiple groups of employees as part of a ballot. The reference to "group" or "groups" in ss.437(3) and s.452 would only have work to do if the Act contemplated that the ballot may involve more than one group of employees. However, I do not consider that this by itself, or when read in context means that a joint application must include multiple (separate) groups, only that it may.

• [21] I do not consider that the approach adopted with respect to multi-employer ballots in s.437A sheds any light on the construction of the Act in the present context.

• [22] It is the common position of the parties that the Act provides a discretion to the Commission to direct how the employee list and the results are to be undertaken in a PABO. I agree, as this arises from s.450(2) of the Act. Directions about the ballot method and the roll of voters is comprehended by s.450(2)(b) to (d) and the form of the declaration of results is capable of being a matter that the Commission considers appropriate under ss.450(2)(e).

• [23] Although a bargaining representative seeking to take employee claim action must give notice of any PIA under s.414, s.459(1) of the Act operates by reference to the "list of employee voters", not to the membership or representation of the representative. This would also appear to contemplate and comfortably work with both multiple ballots and a consolidated ballot with multiple applicants. I would add that this aspect was raised by me during the hearing and I have not heard significant submissions about the full operation of the PIA provisions of the Act.

• [24] When read in context and as a whole having regard to its purpose, I consider that the Act contemplates that when a joint application is made for a PABO under s.437(1), and where sought by the joint applicants, a single consolidated ballot and results may be conducted. However, the Act also contemplates that the order may specify that a ballot be conducted with results collected and reported for each of the groups of employees represented by the respective applicant bargaining representatives. This aspect of the PABO is a matter of discretion for the Commission.

• [25] In this matter, I have decided that the order will specify that a single ballot will be conducted. This has an inherent efficiency and recognises that the Applicants have for the most part been negotiating with Qantas collectively. In that regard, I accept that the evidence about the negotiations themselves is limited to that set out in the declarations[5] provided by the Applicants in support of the joint application. However, this evidence does permit the Commission to reach the conclusion that, at least for the most part, the Applicants have been operating in a joint fashion.

• [26] Although I have provided for a joint ballot, as the hearing and determination of this matter has not permitted the full consequences for the taking of PIA to be considered and resolved in this context, and as a matter of abundant caution, I have decided to also require the following arrangements by way of additional directions issued to the ballot agent under s.450(2) of the Act:

• The Agent will prepare and maintain the list of voters in such a manner that the identity of the relevant bargaining representative for each employee can be utilised in preparing the results of the ballot - this is set out in clause 9.2; and
• The report of the results required by clauses 14.1 (participation rate) and 14.2 (overall ballot outcome) will include the outcomes by reference to:
  • The consolidated voter list; and
  • The number of employees on the voter list relevant to each Applicant.

• [27] I observe that this recognises that a joint ballot is being conducted. It also recognises that in the event that the individual results for each bargaining representative have any potential consequences for the giving of notice and the taking of PIA under the Act, the detail of the ballot is available to be considered by the parties and any adjudicating body. I also observe that the ballot agent in this matter has confirmed that it is able to conduct a ballot on the above basis.

• [28] I now turn to other aspects of the Application.

• [29] On the basis of the material before me, including the separate declarations of Glynn Sowter, General Manager and Solicitor (ALAEA) , Dave Henry, Assistant National Secretary (AMWU), and Marina Chambers, Southern District Organiser (AWU), setting out the steps taken by the Applicants in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with Qantas, 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.

• [30] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.

• [31] 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 24 December 2025.[6] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [32] An Order has been separately issued in PR794321.

• [33] 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] This was clarified by the Applicants during the hearing. They sought that only 1 roll of voters be established.

[2] [2024] FWC 3032.

[4] For instance Australian Licenced Aircraft Engineers Association, The Australian Workers' Union v Auriga Aviation Pty Ltd [2024] FWC 1954 (Order: PR777478); "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) - Western Australian Branch; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Komatsu Australia Pty Ltd and Komatsu Marketing Support Australia Pty Ltd [2020] FWC 5840 (Order: PR724172). See by contrast, Maritime Union of Australia; Mr Glenn Bale v Esperance Ports Sea and Land [2014] FWC 3803 (Orders: PR552074 and PR552079).

[6] This is, in effect, 10 calendar days after the anticipated commencement date of the ballot, as sought by the Applicants.

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