s 437 - Protected action

Proposed protected action ballot of employees of Brownes Food Operations Pty Ltd - non-AEC ballot agent electronic voting

[1] This decision relates to an application by the Transport Workers' Union of Australia (TWU or Applicant) made under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Brownes Foods Operations Pty Ltd (Brownes or Employer).

[2] On 5 March 2026, the Respondent raised a concern regarding the timing of any proposed protected industrial action over the Easter public holiday period. My Chambers informed the parties that in the context of an application for a protected action ballot order, s 443(1) of the Act imposes a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s 437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. If these conditions are not met, the Commission is prohibited from making an order: s 443(2). It is common ground that the first and second requirement have been met in this matter. It followed that the Respondent was content to withdraw its concern.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Robert Rainer Taylor, Organiser, setting out the steps taken by the TWU in bargaining with the Employer, I have formed the view, as noted, that the Applicant has been, and is, genuinely trying to reach agreement with Brownes, I am satisfied that there is a notification time in relation to the proposed agreement, and I conclude that the requirements in s 443(1) of the Act have been met.

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

• [6] 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 March 2026.[1] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

[7] An Order has been separately issued in PR797420.

[8] The matter will now be programmed for a s 448A compulsory conciliation conference. I will issue an Order requiring the attendance of all bargaining representatives for 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 is, in effect, 10 working days from the making of the Order and was the date sought in the application.

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