[2025] FWC 2484

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Coolibah Herbs Pty Ltd (ACN 613 048 883) as trustee for the Bogicevic Family Trust (ABN 97 112 969 103) trading as Coolibah Herbs

Proposed protected action ballot of employees of Coolibah Herbs Pty Ltd (ACN 613 048 883) as trustee for the Bogicevic Family Trust (ABN 97 112 969 103) trading as Coolibah Herbs

• [1] This decision deals with 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 (PABO) in relation to certain employees of Coolibah Herbs Pty Ltd (ACN 613 048 883) as trustee for the Bogicevic Family Trust (ABN 97 112 969 103) trading as Coolibah Herbs (Coolibah Herbs or Employer).

• [2] The group of employees to be balloted are employees of Coolibah Herbs who are performing work in the packing shed at the Pearcedale site in Victoria, who will be covered by the proposed enterprise agreement being negotiated, and are represented by the UWU.

• [3] On 22 August 2025, the Commission was advised that the Employer objected to the application. The basis of the objection was stated in effect to be:

• The Application is premature - bargaining is continuing, it is currently considering a wage offer package and intends to provide a response at the next bargaining meeting;

• The UWU is not genuinely trying to reach an agreement with Coolibah Herbs - the respective positions of the parties will be clearer following the upcoming bargaining meeting; and

• • The proposed conduct of the ballot, including the manner, timetable and chosen ballot agent, should be amended to accommodate the Respondent's preferences and specific characteristics of its employees.[1]

• [4] The first two of the objections are related.

• [5] In reply, the UWU maintained its substantive application, and did not consider Coolibah Herbs' objection to have "any proper basis".

• [6] In the circumstances, I decided to conduct a hearing to determine the matter. The hearing was conducted on 25 August 2025. After the hearing I issued the proposed order in an amended form and advised that I would issue reasons for so doing. What follows are those reasons.

• [7] Section 437 of the Act provides as follows:

"437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and

(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.

Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

(6) The application must be accompanied by any documents and other information prescribed by the regulations."

• [8] Section 443 of the Act provides:

"443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;

(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee."

• [9] I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above were also not in dispute.

• [10] The UWU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. There is no dispute that the UWU was entitled to bring the application, and a valid application has been made under s.437 of the Act. The substantive requirement that must be met is whether the UWU has been and is genuinely trying to reach an agreement with the Employer - s.443(1)(b) of the Act.

• [11] The evidence before the Commission demonstrates the history of the bargaining, the series of bargaining meetings that have been conducted and some more recent developments. I am not in a position to resolve any disputed detail of the outstanding issues in the bargaining; however, it is not presently necessary for me to do so. Accepting Coolibah Herbs' position on face value, it is evident that bargaining has been progressing and although there is a dispute about the extent of issues that remain, there have been matters agreed or withdrawn, with other claims outstanding.

• [12] I would be open to the suggestion that progress in bargaining for a new enterprise agreement in this matter remains possible without recourse to protected industrial action. However, for reasons set out below, this is not the test for a PABO to be issued and protected industrial action as part of bargaining, provided that the various statutory requirements have been met, is part of the scheme of the Act.

• [13] At least in part, Coolibah Herbs effectively contend that the application has been brought prematurely and is unnecessary as part of this bargaining process. In this regard, a Full Bench of the Commission in Kuiper Australia Pty Ltd v The Australian Workers' Union[2] (Kuiper) has relevantly stated:

"[31] That is not to suggest that whether a bargaining representative has been, and is, genuinely trying to reach agreement involves an assessment of whether the bargaining representative is "unduly rushing" to take protected industrial action. The Act expressly deals with when protected industrial action can be taken. Application for a protected action ballot order must not be made unless there has been a "notification time" (s 437(2A)) and cannot be made earlier than 30 days before the nominal expiry of an existing enterprise agreement (s 438(1)). Protected industrial action must not actually be organised or engaged in before the nominal expiry date of an existing agreement (s 413(6)) or if a suspension or termination order, Ministerial declaration or intractable bargaining declaration is in operation (s 413(7)). Otherwise, the Act does not dictate when a bargaining representative should seek a protected action ballot order.

[32] The Act contemplates that an application for a protected action ballot order can be made as soon as there has been a "notification time" so long as that date is not more than 30 days before the nominal expiry of an existing agreement. The requirement, in s 443(1)(b), that an applicant has been, and is, genuinely trying to reach agreement does not impose a further de facto time constraint on when protected industrial action can be taken by prescribing that bargaining must have developed to some minimum stage or level. The Act does not countenance such an approach.

[34] An allegation that an application for a protected action ballot order is premature does not, of itself, provide a basis for concluding that the applicant for the order has not been, or is not, genuinely trying to reach agreement. The Act envisages that protected action might be taken early in bargaining. The Commission must simply consider whether, in light of the circumstances operating at the time of its decision, the applicant has been, and is, genuinely seeking agreement. The reference to "premature applications" in Total Marine Services has been doubted or not followed in subsequent decisions, particularly JJ Richards (FWAFB), Farstad Shipping and Esso Australia Pty Ltd v Australian Manufacturing Workers' Union [2015] FWCFB 210; (2015) 247 IR 5. Kuiper did not suggest we should follow the reasoning in the fourth and fifth sentences of paragraph [32] of Total Marine Services."

• [14] The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has also previously been summarised, in effect, by the Full Bench in Esso Australia Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union.[3] This includes, as relevant to this matter:

• • While there is a relationship between the good faith bargaining requirements in s.228 of the Act and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.[4]
• • The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.[5] The Commission should have regard to all of the relevant facts and circumstances of the particular case.[6]
• • It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.[7]
• • The reference to the Commission being 'satisfied' means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant union. The expression 'has been, and is', imports temporal considerations. The Commission's attention is thereby directed to the applicant's prior conduct at the time the application for a protected action ballot order is determined. Given the context the reference to 'an agreement' is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the Act.[8]

• [15] The expression "genuinely trying" has also been taken to be concerned with the genuineness or authenticity of the trying; that is, the efforts, by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act, and is not bargaining for some ulterior purpose.[9]

• [16] In this case, the evidence before the Commission supports the notion that the UWU has been and is genuinely trying to reach an agreement with Coolibah Herbs. It has also meaningfully engaged and continues to engage with the bargaining process with the genuine objective of reaching an agreement. It also remains committed to negotiating a new enterprise agreement with the Employer and its actions confirm that it is doing so genuinely. I accept that Coolibah Herbs has also been bargaining in good faith and that progress in negotiations has been and is likely to continue.

• [17] To the extent that Coolibah Herbs faintly raised the notion that the UWU may not be meeting the good faith bargaining requirements of the Act,[10] this has not been made out. In any event, I have taken into account the concerns that are directly relevant to the determination of the present matter, where supported by any evidence.[11] In that regard, I observe that there is no requirement that the bargaining be exhausted before an application of this kind is made. Further, a PABO application does not stop the bargaining and the good faith bargaining obligations remain, including that the parties must continue to bargain. This also includes that parties must continue to meet at appropriate times and to genuinely consider and respond to proposals by other bargaining representatives in a timely manner.[12]

• [18] I find that the UWU has met the requirements of s.443(1)(b) of the Act.

• [19] Coolibah Herbs also raised a number of requests relating to the content of the proposed order. This included their preference for the ballot agent to be amended from Fair Vote Services Pty Ltd (Fair Vote) to the Australian Electoral Commission (AEC), a change in the form of ballot to an attendance ballot rather than the proposed electronic vote, and associated changes to the ballot timetable. The preference about the utilisation of the AEC was based entirely upon the fact that it had been previously used to conduct an attendance ballot at the relevant workplace in 2022.

• [20] The UWU contended that it was not for Coolibah Herbs "to determine the manner and timetable of any ballot", and that there was nothing unusual for an electronic ballot to be conducted in the circumstances of a workplace of this kind.

• [21] Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act. The UWU proposes that the ballot be conducted as an electronic vote and has adopted the Commission's standard form of order for that purpose.

• [22] Although there is no detailed evidence before the Commission, there is common ground that employees to be balloted include those from non-English speaking backgrounds. In that regard, I observe that the present enterprise agreement applying to the parties has been informally translated into various languages. The employees are also working in a packing shed and do not generally have access to work-related email addresses. The UWU asserted that the employees within its membership who are to be balloted all have mobile phones, access to the internet and private email addresses and that this would not pose any difficulties. The factual basis of this was not contradicted and I have accepted that for present purposes.

• [23] Section 444 of the Act provides as follows:

(1) This section applies if the FWC must make a protected action ballot order under subsection 443(1).

(1A) The FWC must, in accordance with subsections (1B) to (1D) of this section, decide the person or entity that is to be the protected action ballot agent for the protected action ballot.

(1B) The person or entity must be the person or entity specified in the application for the protected action ballot order as the person or entity the applicant wishes to be the protected action ballot agent, unless:

(a) the person or entity specified in the application does not meet the requirements of subsection (1C) (unless subsection (1D) applies); or

(b) the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the protected action ballot agent.

(1C) The person or entity must be an eligible protected action ballot agent.

(1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied that:

(a) there are exceptional circumstances that justify the ballot not being conducted by an eligible protected action ballot agent; and

(b) the person is a fit and proper person to conduct the ballot; and

(c) any other requirements prescribed by the regulations are met.

Note: Other than the Australian Electoral Commission, an entity that is not a person cannot be the protected action ballot agent for a protected action ballot.

(a) conditions that a person must meet in order to satisfy the FWC, for the purposes of paragraph (1D)(b), that the person is a fit and proper person to conduct a protected action ballot; and

(b) factors that the FWC must take into account in determining, for the purposes of paragraph (1D)(b), whether a person is a fit and proper person to conduct a protected action ballot.

(3) The FWC may decide that a person (the other person) is to be the independent advisor for a protected action ballot if:

(a) the FWC has decided that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the ballot; and

(b) the FWC considers it appropriate that there be an independent advisor for the ballot; and

(i) the other person is sufficiently independent of each applicant for the protected action ballot order; and

(ii) any other requirements prescribed by the regulations are met."

• [24] The issues raised by Coolibah Herbs brings into focus the functions and powers of the Commission in determining the ballot agent and associated matters. I have not heard comprehensive submissions about the import of these provisions in a case such as this. My preliminary view is that the combined effect of s.444(1A), (1B) and (1C) appears to be that if the ballot agent specified by the applicant to a PABO application (specified ballot agent) is an eligible protected action ballot agent, such as Fair Vote, the Commission must generally decide to include that agent in the order. The specified ballot agent may not be an eligible protected action ballot agent, if under s.444(1D), there are exceptional circumstances, and the Commission finds that the alternative agent is a fit and proper person. There is also scope under s.444(1B)(b) for another person or entity to be the ballot agent, if there are exceptional circumstances justifying the ballot not being conducted by the specified ballot agent. That person must also be either an eligible protected action ballot agent, or a fit and proper person approved in exceptional circumstances.

• [25] However, it has not been necessary to determine the full impact of the legislation for reasons that will become clear.

• [26] The AEC is also an eligible protected action ballot agent under s.468A and s.444(1B)(b) would appear to enable the Commission to substitute it as the ballot agent, but only in the case of relevant exceptional circumstances justifying that measure.

• [27] Section 450 of the Act provides as follows:

"450 Directions for conduct of protected action ballot

(1) This section applies if the protected action ballot agent is not the Australian Electoral Commission.

(2) The FWC must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:

(b) the voting method, or methods, to be used (which cannot be a method involving a show of hands);

(d) the addition of names to, or removal of names from, the roll of voters;

(e) any other matter in relation to the conduct of the ballot that the FWC considers appropriate.

Note 1: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.

Note 2: A protected action ballot agent must not contravene a term of a direction given by the FWC in relation to a protected action ballot (see subsection 463(2)).

(3) A direction given under subsection (2) may require the protected action ballot agent to comply with a provision of this Subdivision (other than subsection 454(5)) in relation to a particular matter.

Note: Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.

(4) To enable the roll of voters to be compiled, the FWC may direct, in writing, either or both of the following:

(a) the employer of the employees who are to be balloted;

(b) the applicant for the protected action ballot order;

to give to the FWC or the protected action ballot agent:

(c) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and

(d) any other information that it is reasonable for the FWC or the protected action ballot agent to require to assist in compiling the roll of voters."

• [28] It is evident that the Commission has the power to determine the form of ballot to be conducted. This arises from s.450(2)(b) in the case of non-AEC ballot agents and other related provisions. Further, s.450(2)(e) of the Act enables the Commission to include directions about any other appropriate matter in relation to the conduct of the ballot.

• [29] I am not satisfied that exceptional circumstances exist that warrant the appointment of the ballot agent other than the specified ballot agent in this matter. I am also satisfied that Fair Vote is able to properly conduct any form of ballot that might be required, and Coolibah Herbs did not suggest otherwise. It merely indicated a preference for the AEC based on prior good experiences.

• [30] As to the form of ballot, I consider that an electronic ballot is reasonable and appropriate in all of the circumstances, including the nature and location of the employees. The efficiency and effectiveness of this form of ballot has much to recommend it. I do however consider that some additional measures should be undertaken given the nature of this workforce. To that end, following consultation with the parties and the ballot agent, I included the following additional provision as part of clause 11. Information of the Order:

"11.4 The Agent is to provide the following information to the employees in Khmer, Vietnamese, Malay, Indonesian and Burmese:

Any employee whose first language is not English and is seeking additional assistance to understand the ballot process or the ballot questions as a result of not being able to work out the written information provided in English, may contact:

11.5 In response to a request provided for in 11.4, the Agent is to provide reasonable assistance which might include referral to a translation service or to sources of advice which have capacity to converse in the relevant language, or translation of key documents such as the information sheet and the ballot paper."

• [31] On the basis of the material before me, including the declaration of Nhat Anh Nguyen, Union Official, 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 Coolibah Herbs, 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.

• [32] For reasons outlined earlier, the electronic ballot is to be conducted by Fair Vote as an eligible protected action ballot agent under s.468A of the Act.

• [33] 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 11 September 2025.[13] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [34] An Order has been separately issued in PR790976.

• [35] 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.

M Raven of Raven HR (with permission) with S Barrie for Coolibah Herbs Pty Ltd (ACN 613 048 883) as trustee for the Bogicevic Family Trust (ABN 97 112 969 103) trading as Coolibah Herbs.

[1] The Employer also initially sought correction of the respondent entity and this was agreed between the parties.

[2] [2024] FWCFB 378.

[3] [2015] FWCFB 210.

[5] Ibid at [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia [2009] FWAFB 368 (Total Marine).

[7] Ibid at [35] - but qualifying a further statement made in Total Marine.

[9] J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 at [89] and Kuiper at [26] to [30].

[11] Noting that the two concepts are related but should not be conflated.

[12] Section 228(1)(a), (c) and (d) amongst other requirements.

[13] This is, in effect, 13 working days from the making of the Order and was the specific date sought in the application.

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