s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Aspen Pharma Pty Ltd - non-AEC ballot electronic voting.

[1] This is an application by the United Workers' Union (UWU 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 Aspen Pharma Pty Ltd (Aspen Pharma or Employer).

[2] On 18 March 2026, the Commission was advised that Aspen sought an extension to the notice period required under s.414(2) for the taking of industrial action from 3 working days to 7 working days. Aspen otherwise did not object to the making of the protected action ballot order. On 19 March 2026, the UWU provided submissions in response objecting to Aspen's application to extend the notice period.

[3] On 20 March 2026, I convened a conciliation conference in this matter. Ultimately, the parties reached a consent position regarding the notice period, set out below at [9].

[4] I now turn to the matters I need to consider under s.443 of the Act.

[5] On the basis of the material before me, including the declaration of Reece Gittins, Organiser, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Aspen Pharma, 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 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 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 7 April 2026.

[8] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[9] Based on the consent position reached by the parties, and in accordance with s 443(5) of the Act, I am satisfied there are exceptional circumstances justifying the period of written notice being longer than 3 working days in relation to the following specific proposed action:

a) protected industrial action listed in question three (3) and/or any action under questions one (1) or two (2) that is tantamount to an indefinite ongoing stoppage;

b) protected industrial action listed in question six (6).

[10] The minimum period of written notice for action detailed in (a) and (b) will be 5 working days. In relation to all other protected action detailed in the ballot the standard 3 working day notification time will apply.

[11] An Order has been separately issued in PR797825.

[12] As discussed with the parties this matter will now be listed for a s.448A compulsory conciliation conference. I will shortly 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.

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