s.437 - Application for a protected action ballot order

Express Freighters Australia (Operations) Pty Ltd

Proposed protected action ballot of employees of Express Freighters Australia (Operations) Pty Ltd

• [1] This is 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 Express Freighters Australia (Operations) Pty Ltd (Express Freighters or Employer).

• [2] I note that the Australian Federation of Air Pilots (AFAP) and the Australian and International Pilots Association (AIPA)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

• [3] On 5 June 2025, the Commission was advised that the Employer did not object to the Application, if amended following discussions between the parties to confirm certain aspects of the draft order.

• [4] In the circumstances, I have amended the Application and decided to determine the matter on the papers without holding a hearing.

• [5] On the basis of the material before me, including the declaration of Edward Nell, National Industrial Officer, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Express Freighters, 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.

• [6] The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [7] 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 25 June 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] I observe that the application provided in this matter contained certain proposed arrangements for the conduct of the ballot. These were not in a form suitable for inclusion in the Order. In that light, I have issued the Order using the Commission's standard approach, noting that this is also consistent with the related matters and the role to be played by the Act and associated regulations on the conduct of the ballot. I also observe that the Ballot Agent may have regard to the proposals set out in the application to the extent that they are consistent with the Order and the proper conduct of a ballot of this kind.

• [9] An Order has been separately issued in PR787979.

• [10] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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] B2025/891 and B2025/900 respectively.

[2] This is, in effect, 14 calendar days from the anticipated commencement of the ballot and was the period sought in the application.

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