s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Crown Melbourne Ltd - non-AEC ballot agent electronic voting

• [1] There are two applications by the United Workers' Union (UWU) made under s.437 of the Fair Work Act 2009 (Act) for protected action ballot orders in relation to Crown wide employees (B2025/1794) and area managers (B2025/1795), employees of the Respondent, Crown Limited (Crown).

• [2] This decision concerns bargaining for proposed agreements to replace two enterprise agreements: the Crown Melbourne Limited Enterprise Agreement 2023 which is the main agreement (referred to as the Melbourne Crown Wide EA) covering some 4303 employees,[1] and the Crown Melbourne Limited Surveillance and Management Enterprise Agreement 2023 (referred to as the Area Manager EA) covering 583 employees.[2] The nominal expiry date for the Melbourne Crown Wide EA is 30 June 2025 and 30 September 2025 for the Area Manager EA.

• [3] On 3 December 2025, at 5.13pm the UWU filed its applications and on 4 December 2025 at 12.55pm, the Fair Work Commission (the Commission) was advised that the Respondent objects to both applications.

• [4] On 5 December 2025, a hearing was convened where the Respondent confirmed their objections to the applications, advising that both applications were invalid because the UWU was not genuinely trying to reach agreement and in respect to B2025/1794 (Melbourne Crown Wide EA) that the Applicant was aware that the access period was to commence on 4 December 2025.

• [5] The parties were directed to file and serve submissions prior to the hearing. The UWU relied on its written submissions, Form F34B Declarations of Mr Heath Lamaro and witness evidence of Mr Adrian Lidsey, UWU Organiser and previous employee of the Respondent. The Respondent relies on its written submissions and witness evidence of Ms Mandy Posetti,[3] Group General Manager of Industrial Relations; Ms Brandee Wade, Chief Financial Officer;[4] and Ms Carla Coslovic, Group Executive Manager - Security and Organisational Resilience.[5]

• [6] The Respondent was given leave to be legally represented.

• [7] Mr Heath Lamaro declares[6] the UWU is the bargaining representative of its members to be covered by both proposed enterprise agreements, that it has been and is genuinely trying to reach agreement on both proposed enterprise agreements, that it became aware that the Respondent intended to put the Melbourne Crown Wide EA to ballot and it was intending to advocate a 'no' vote. Mr Lamaro further identifies the matters that he considers are the major issue in dispute between the parties.

• [8] Mr Lidsey states that he has been involved in bargaining in the current round of negotiations and prior enterprise agreements going back to 2021. Mr Lidsey provides details regarding each bargaining meeting with the Respondent for the replacement of both enterprise agreements. He gives evidence of bargaining for both agreements to occur concurrently and together because of the mutual and common claims.[7] Mr Lidsey also raises the relevance of clause 8.2 of the Area Manager EA which draws a connection to the wages and allowances contained in the Melbourne Crown EA to maintain a wage gap between the two groups of employees covered by separate enterprise agreements.[8] Mr Lidsey further states that to reach agreement on the Melbourne Crown EA, the UWU are encouraging a no vote so that the Respondent returns to the bargaining table to hopefully remove the Respondent's proposed dual wage model. He further states that the PABO applications are intended that the ballot occurs after the access period.[9]

• [9] The UWU submits that consistent with the authorities regarding s.443 of the Act, it has and is genuinely trying to reach agreement and contests the Respondent's submissions that even though there is an access period, it is not prevented from changing its position. Further, the UWU submits that the authority of Teekay[10] of which the Respondent relies is erroneous and not analogous to this matter.

• [10] The UWU further submits that in Teekay the Commissioner considered the taking of industrial action during an access period which is different to a protected action ballot order which is for the purpose of obtaining approval for the right to take protected industrial action.

• [11] The Respondent submits that the access period for the Melbourne Wide EA commenced on 4 December 2025 with the vote to take place 12-16 December 2025. In respect to both PABO applications the Respondent contends that the Commission cannot be satisfied that s.443(1)(b) is met, i.e. that the Applicant has been and is genuinely trying to reach agreement with the employer

• [12] The basis of the objections by the Respondent follows:[11]

"9. The principles concerning the making of a PABO are well settled.

9.1. Whether an applicant "has been, and is, genuinely trying to reach an agreement" is a question of fact to be decided having regard to all of the facts and circumstances of the particular case.

9.2. The expression "genuinely trying" is 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.

9.3. The requirements in s 443(1)(b) that "the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement" involves two distinct temporal considerations. The present tense requires satisfaction that, at the time of the determination, the applicant is trying to reach an agreement. The use of the past tense requires satisfaction that the applicant had been trying to reach an agreement prior to the time of determination. The applicant bears the onus of establishing that it has been and is genuinely trying to reach an agreement."

• [13] The Respondent submits that relying on Teekay,[12] that it cannot be found that the Applicant is genuinely trying to reach agreement because the other party must be in a position to bargain, and this is not the case due to the access period.

• [14] Further the Respondent cites Adelaide Independent Glass Pty Ltd v CFMEU [13] and contends that the ordinary meaning of the phrase "genuinely trying to reach an agreement" contemplates that "an agreement has not yet been made but that a genuine endeavour or aspiration for the making of an agreement is being pursued in some active manner."[14] The use of the present tense in s.443(1)(b) requires the Commission to reach a state of satisfaction at the time of the determination the Applicant is trying to reach an agreement.

• [15] In respect to the Area Manager EA the Respondent refers to the Applicant's declaration where it states that it is attempting to use the Melbourne Crown Wide EA to leverage the wage increase to ensure the gap is maintained. On this basis the Respondent submits that the UWU is not genuinely trying to reach agreement.

• [16] The Respondent further submits that should the Commission make orders, that longer periods than 3 days are justified due to exceptional circumstances. These exceptional circumstances concern risks to public safety if security and surveillance personnel engage in stoppages and the limitations to rely on a third party provider during the busy period, which also risks the casino license should it not be in a position to appropriately monitor or where necessary exclude patrons from the premises where there is a shortage of staff.

• [17] In respect of the objections, the Respondent submits that s.443(1) (b) is to be met but contends that the Applications are invalid due to the misleading statements and the access period commenced in respect to the Melbourne Crown Wide EA. The Respondent submits that the UWU has not been or is not genuinely trying to reach agreement with the employer. Therefore, the Commission cannot be satisfied to make the order.

"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."

• [19] The power of the Commission is not discretionary to make a protected action ballot order; the order must be made if the two subsections are met. On this point Deputy President Hampton in the recent decision of Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V) - [2023] FWC 1337 stated that:

"[8] The Commission's power to make a protected action ballot order under s.443 of the FW Act is not discretionary in nature. Section 443(1) 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 requirement has been met in this matter."

• [20] The first condition of s.443(1) requires that the application had been made under s.437 of the Act. Relevantly, s.437 provides:

"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."

• [21] The UWU is eligible to make the application as bargaining representative of employees to be covered by the proposed enterprise agreement. The proposed enterprise agreement is neither a greenfields nor cooperative workplace agreement. The notification time is 9 May 2025 for the Melbourne Crown Wide EA and 20 August 2025 for the Area Manager EA. The applications specify the relevant matters in s.437(3) and there is no contest in terms of the employees specified, protected action ballot agent or bargaining representative.

• [22] The second condition of s.443(1) is that the Commission is satisfied that the applicant has been and is genuinely trying to reach an agreement with the employer of the employees to be balloted.

• [23] Based on the evidence of both the declarations of the Applicant and witness evidence of Mr Lidsey, there is no contest that the parties have engaged genuinely to try to reach agreement. I do not agree that the access period prevents the parties from trying to reach agreement. With respect to the Commissioner in Teekay, the circumstances can be distinguished. In this matter the access period and the ballot will test whether those employees to be covered by the proposed agreement agree to the making of an enterprise agreement or if the parties are to resume bargaining. At this stage no enterprise agreement has been made. Whether the Respondent chooses to depart from the ballot process is up to them, but in my view it is not an indication that the UWU is not genuinely trying to reach agreement. I observe that the UWU acknowledges that should the ballot support the proposed agreement, it will make an application to revoke the application to proceed to ballot for protected industrial action. I further observe that the date the ballot for protected industrial action closes is well after the ballot closes for the vote on the proposed enterprise agreement. I am not satisfied that the decision in Teekay is authority in this matter.

• [24] Further I do not accept that in respect to the Area Managers EA that the UWU is not bargaining genuinely trying to bargain. I am satisfied that the two proposed enterprise agreements have a degree of commonality of conditions, including wage parity and the manner in which past bargaining processes have jointly taken place. I am not satisfied that the Respondent has demonstrated that there is an ulterior motive than to try to reach agreement as the basis for this application.

• [25] It is up to the parties to determine their bargaining strategy, there are no rigid rules[15] and while the Respondent holds concerns and objects to the applications, on the evidence I cannot form the view that the applications are not an indication that the Applicant is not genuinely trying to reach agreement.

• [26] Section 443 of the Act is not discretionary. In respect to s.443 (1), the Commission must make an order if the application is made under s.437 and that the applicant is genuinely trying to reach agreement. Evidence before me is that both the requirements have been met, therefore the order must be made.

• [27] The final issue in contention is the Respondent's submission that there are exceptional circumstances to warrant a greater period of 3 days' notice to take industrial action should a ballot of affected employees support protected industrial action. The Respondent seeks a period of 7 days which the Applicant rejects on the basis there are no exceptional circumstances.

• [28] I am not persuaded that there are exceptional circumstances under s.443(5) to grant a further period. While the Respondent made submissions of difficulty in altering rosters to ensure the safety of Crown and Patrons in accordance with its regulatory requirements, there were no exceptional circumstances to warrant a departure from 3 days' notice. In this matter I am mindful that while there are roster difficulties, the Respondent is not prevented from restricting access to areas of the operation and it relies on external security providers, of which are commonly used. While 3 days' notice may be an inconvenience, the facts show that should the result of the vote for the enterprise agreement be a no vote, which will be evident soon after 16 December 2025, the Respondent is on notice of the probable vote to take protected industrial action that amounts to more than 3 days because the ballot closes on 23 December.

• [29] On the basis of the material before me, including the declaration of Heath Lamaro, Co-ordinator and the Form F34B in each application setting out the steps taken by the UWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreements and that all of the requirements in s.443(1) of the Act have been met.

• [30] 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.

• [31] 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 23 December 2025.[16] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [32] An Order has been separately issued in PR794611 (B2025/1974) and PR794612 (B2025/1975).

• [33] A further listing will be sent out from my Chambers scheduling s.448A conferences for both matters, noting that B2025/1794 will require an application to revoke the Order should the vote of employees covered by the proposed agreement be a majority to make the agreement. I will issue the Orders requiring attendance at the conferences and as the parties have a scheduled bargaining meeting for B2025/1795 it ought to take place. Directions for the conferences will be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] Exhibit R1 Sworn Witness statement of Posetti at [6].

[6] Exhibit A1 Form 34B declaration (B2025/1794) and exhibit A2 Form 34B declaration (B2025/1795).

[7] Exhibit A3 [59] - [60], [73], [75].

[10] Teekay Shipping (Australia) Pty Ltd v Australian Institute of Marine and Power Engineers [2014] FWC 8465 ('Teekay').

[11] Relying respectively on Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210;257 IR 1 [57], Communications, Electrical Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nepean Power Pty Ltd [2025] FWC 2230 [16], and Coles Supermarkets (Australia) Pty Ltd v Australasian Meat Industry Employees Union [2015] FWCFB 379 [45].

[12] [2014] FWC 8465.

[13] [2017] FWC 6540 [24].

[15] Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368.

[16] This is approximately 13 working days from the date of the order, and was the specific date requested in the Application.

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