s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Kinetic (Melbourne) Pty Ltd and KOCM 3 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 Kinetic (Melbourne) Pty Ltd and KOCM 3 Pty Ltd (collectively, the Employers). The Commission understands that the respondents are related businesses who engage employees who will be covered by the proposed agreement.[1]

• [2] On 3 June 2025, the Commission was advised that the parties had reached a consent position in relation to the inclusion of an extended notice period for taking protected industrial action.

• [3] In the circumstances, I have decided to amend the application to reflect the consent position reached and otherwise determined the matter on the papers without holding a hearing.

• [4] On the basis of the material before me, including the declaration of Imran Malik, Lead Organiser, setting out the steps taken by the TWU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, 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.

• [5] 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 consequently 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 20 June 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [7] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. By consent, the minimum extended notice period of seven (7) calendar days applies to the items listed within Clause 5 of the Order.

• [8] An Order has been separately issued in PR787881.

• [9] 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] There is a dispute between the parties about whether the 'proposed agreement' will be one enterprise agreement or a separate agreement for each Respondent Employer.

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

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