Fair Work Act 2009

s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Solvay Interox Pty Ltd

• [1] The Australian Workers' Union has made an application under s 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain Employees of Solvay Interox Pty Ltd.

• [2] Solvay objects to the Questions which the AWU proposes be asked of the Employees. The Questions are in the following form:

"In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by AWU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all the actions set out below:

1. An unlimited number of 1 hour stoppages of work?

1. An unlimited number of 2 hour stoppages of work?

1. An unlimited number of 3 hour stoppages of work?

1. An unlimited number of 4 hour stoppages of work?

1. An unlimited number of 8 hour stoppages of work?

1. An unlimited number of 12 hour stoppages of work?

1. An unlimited number of 24 hour stoppages of work?

1. An unlimited number of 48 hour stoppages of work?

1. An unlimited number of 72 hour stoppages of work?

1. An unlimited number of stoppages of work for a period of one week?

1. An unlimited number of indefinite stoppages of work?

1. An unlimited number of indefinite or periodic bans on overtime?

1. An unlimited number of indefinite or periodic partial work bans?

• [3] Solvay makes the following submissions in relation to the Questions:

• Solvay objects to the wording of certain Questions on the basis that they are:
  • ambiguous or unclear, and may mislead or confuse employees voting in the ballot;
  • incompatible with safety obligations under WHS legislation or may risk unlawful conduct - including required downtime on either side of plant site work stoppages;
  • unreasonable in their ambiguity impacting management's ability to adequately plan and manage a high-risk, major hazard facility; and
  • not framed in a way that allows for informed, lawful, and meaningful participation in the ballot.

• As to Questions 1 to 9 ("An unlimited number of X hour stoppages of work?") and questions 10 & 11 ("An unlimited number of stoppages of work"), Solvay submits that:
  • the Questions lack specificity and fail to account for the context of Solvay's major hazard facility. In particular, for the Solvay Interox plant to safety shut down for any period of time requires Solvay to shut down the plant 24 hours beforehand and additionally take 24 hours to restart the plant safety. As such, a 1 hour stoppage would require a total of 49 hours of work stoppage, which should be accounted for in the question for the full stoppage period to be considered protected industrial action. Otherwise, Solvay would consider the shutdown and start period (48 hours in total) as unlawful industrial action;
  • it may lead to action that breaches minimum staffing requirements (currently 3 people to operate the plant safely) and/or safety obligations. Whilst the union has provided a written commitment that their members will adhere to safety requirements, the questions do not reflect this for their members to accurately vote on;
  • the term 'work stoppages' is overly broad and may be interpreted inconsistently by employees; and
  • Solvay suggests the Questions be amended as follows:

"Do you authorise industrial action in the form of work stoppages, for a period not exceeding X hours plus 24 hours before and 24 hours after the stoppage, provided it does not contravene current minimum staffing requirements, safety protocols or legal obligations under WHS legislation?"

• As to Question 12 ("An unlimited number of indefinite or periodic bans on overtime?"), Solvay submits:
  • that its Maintenance and Operators are salaried employees with no entitlement to overtime. As per the current enterprise agreement, they may be requested to do additional reasonable hours to ensure adequate coverage in line with minimum staff requirements to safety manage the plant;
  • the term 'overtime' is inaccurate (given the above) and may therefore be interpreted inconsistently by employees;
  • Solvay requests that this Question be either removed or amended to state:

"Do you authorise industrial action in the form of refusing additional hours, for a period not exceeding X, provided it does not contravene current minimum staffing requirements, safety protocols or legal obligations under WHS legislation?"

• As to Question 13 ("An unlimited number of indefinite or periodic partial work bans?"), Solvay submits:
  • the question lacks specificity as to what partial work bans are and would be considered. This makes it unclear for employees to vote and impacts management's ability to plan and manage a major hazard facility;
  • the term 'work bans' is overly broad and may be interpreted inconsistently by employees;
  • Solvay requests this Question be either removed or amended to state:

"Do you authorise industrial action in the form of periodic partial work bans in the form of [union to specify what specific work bans it is proposing], for a period not exceeding X, provided it does not contravene current minimum staffing requirements, safety protocols or legal obligations under WHS legislation?"

• As to safety risks generally, Solvay submits that certain proposed actions, if endorsed by the current wording of the Questions, may:
  • compromise safety and operations of a major hazard facility;
  • disrupt management's ability to adequately plan and manage the site; and
  • lead to breaches of Work Health and Safety laws.

• Solvay requests that the Commission consider these risks when assessing the appropriateness of the proposed ballot questions.

• In order for the ballot process to be meaningful and lawful, Solvay submits that the Employees must be able to clearly understand what they are voting on. Further, it is submitted that ballot questions must be framed to comply with section 443(3) of the Act, and should not include vague or compound propositions.

• Solvay requests the Commission to:
  • exercise its discretion under s 443(3)(b) of the Act to amend the proposed ballot Questions to ensure clarity, legality, and compliance with safety obligations; or
  • if necessary, decline to make the protected action ballot order until such time as suitable and lawful questions are proposed.

• Solvay submits that it is the only hydrogen peroxide producer in Australia and would qualify as an essential service due to:
  • the long lead time for customers to source an alternative overseas supply of peroxide and ensure quality compliance of such;
  • the potential adverse impacts on the environment related to any customer being depleted of product which is used for environmental protection (specifically destruction of cyanide pollutants in waste effluent) in mining operations;
  • the significant economic harm this action would cause to both Solvay as well as the Australian economy through the potential closure of major mining operations as well as other significant industries which are critical to the Australian economy.

• Solvay requests the Commission to:
  • exercise its discretion under s 443(3)(b) of the Act to determine that Solvay qualifies as an essential service ; and/or
  • if necessary, decline to make the protected action ballot order until such time as Solvay can ensure the customers are able to undertake appropriate actions to mitigate the disruptions caused by these actions.

Consideration re Solvay's objections to the Questions

• [4] In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,[1] the Full Bench made the following observations:

"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."

• [5] This approach was affirmed by the Full Bench in National Tertiary Education Industry Union v Curtin University:[2]

"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."

• [6] In that case, the Full Bench went on to say:[3]

"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."

• [7] I am satisfied that each of the Questions:

(a) are capable of being answered "yes" or "no" by the Employees. So much is clear on the face of the Questions;

• (b) propose action of an identified kind that is capable of constituting industrial action within the meaning of the Act. In this regard, I note that the expression "industrial action" in the Act does not, on its proper construction, exclude action which might or would result in a breach of occupational health and safety law;[4] and

• (c) are expressed and able to be understood in ordinary industrial English. Expressions such as "stoppage of work" and "work stoppages" have a well-understood industrial meaning. Whether Solvay decides to shut down its plant in response to, or to accommodate, protected industrial action taken by the Employees, is a matter for Solvay; it does not impact whether Employees are able to understand the nature of the protected industrial action they being asked to vote on. Although the annual salaries paid to employees under the current enterprise agreement[5] include an overtime component, it is clear from clause 2.3 of that agreement that overtime is worked and paid to the Employees when they work additional hours, over and above their standard hours of work each week. Having regard to this context, I consider that a reasonable person in the position of the Employees would understand Question 12 - an unlimited number of indefinite or periodic bans on overtime - as a reference to the additional hours, over and above their standard hours of work each week, for which they are paid overtime. As to Question 13, which concerns 'partial work bans', I respectfully adopt and agree with the following reasoning of Deputy President Wright in CFMEU v Wingham Beef Exports Pty Ltd[6]:

"Question 4 is one that is capable of being answered 'yes' or 'no' by the employees participating in the ballot and refers to an unlimited number of indefinite or periodic partial work bans. 'Partial work ban' is an expression which is used in the Act and is defined in s.470(3), therefore it is a term which has a clear and specific meaning and is not ambiguous. A 'ban' is a form of industrial action as defined by s.19 therefore by describing the proposed action in Question 4 as a 'partial work ban', the CFMEU has specified the 'nature of the proposed industrial action' as required by s.437(3), noting that all that is required is to specify the 'character, kind or sort' of the industrial action, given that the word 'nature' is one of high generality."

• [8] Many of the matters raised by Solvay are not relevant to whether a protected action ballot order should or must be made by the Commission. For example, whether or not Solvay qualifies as an 'essential service' is not relevant to whether I must, in accordance with s 443(1) of the Act, make a protected action ballot order. If the Employees vote in favour of taking protected industrial action in the ballot and notice is subsequently given by the AWU of particular types of protected industrial action to be taken by the employees, Solvay may make an application under s 423 of the Act seeking orders suspending or terminating protected industrial action if such action is causing, or threatening to cause, significant economic harm.

• [9] On the basis of the material before me, including the declaration of Ian Morley, AWU Organiser, setting out the steps taken by the AWU in bargaining with Solvay, I am satisfied that there is a notification time in relation to the proposed agreement, the AWU has been, and is, genuinely trying to reach agreement with Solvay, and that all of the other requirements in s 443(1) of the Act have been met.

• [10] The ballot is to be conducted by Fair Vote Services Pty Ltd. 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.

• [11] 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 19 August 2025.[7] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

• [12] An Order has been separately issued in PR790391.

• [13] The s 448A compulsory conciliation conference will be held by videoconference using Microsoft Teams at 3pm on 7 August 2025. An Order and Directions will be issued requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference, and to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] [2010] FWAFB 526 at [19]

[2] [2022] FWCFB 204 at [50]

[4] Skilled Offshore v AMWU [2015] FWCFB 7399 at [37]

[5] Solvay Interox Pty Ltd Banksmeadow Site Enterprise Agreement 2021

[6] [2025] FWC 1646 at [11]

[7] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

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