s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Grill'd Pty Ltd.

• [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 Grill'd Pty Ltd (Grill'd or Employer).

• [2] On 3 June 2025, the Commission was advised that the Employer, did not object to the Application being granted. For reasons briefly set out immediately below, I am satisfied that a protected action ballot order should be made in this matter. However, the parties have competing views about the length of the ballot period, that is, the period in which the ballot is to be conducted and finalised, and some directly related issues. The parties have provided their positions and submissions on this aspect. I deal with this shortly.

• [3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing. No party sought a hearing, and the Commission is obliged wherever practicable to determine an application of this kind within 2 working days of its lodgement.[1]

• [4] On the basis of the material before me, including the declaration of Kelley Edwards, Lead Organising 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 it, 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 or Agent). 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] In its application, the UWU sought the ballot close on the 10 June 2025. I observe that this would be a period of 7 calendar days from the time of the submissions and 6 calendar days from the making of the Order in this matter. The UWU has provided submissions contending that this period would not be inappropriate or impracticable on the basis of the following propositions:
  • The employees to be balloted are fast food employees who have ready access to the internet and telephone services to enable them to respond to the electronic method by which the ballot will be conducted. This is the manner that the employees communicate with the employer regarding workplace matters including rostering.

• The Commission would not be issuing orders requiring Fair Vote to conduct the protected action ballot in a time frame that Fair Vote had advised it could not achieve. Fair Vote reviewed the draft orders prior to filing and approved the timeframe and ballot process.

• The Commission has been furnished with the identity and particulars of all bargaining representatives in the application. Significant lead time is not required before the s.448A conference to ensure that the Commission meets its obligation under s.48A(1) to order attendance of all bargaining representatives and they have a reasonable opportunity to comply.

• • Deputy President O'Neill has already dismissed the employer's application for approval of one proposed replacement enterprise agreement on the grounds that the employer did not take all reasonable steps to explain the terms of agreement, and their effect, to its employees[2]. The bargaining parties attending a s 448A conference will be very familiar with the issues requiring dispute resolution or refinement. On 30 May 2025, the employer emailed correspondence to the other bargaining representatives informing them that, inter alia, it intends to move to a vote of the employees to approve the currently proposed agreement quickly.

• [7] Grill'd provided submissions contending that the Commission should exercise its discretion to specify a date for the protected action ballot to close that is no less than 10 working days from the date the protected action ballot order is made. It did so based upon the following propositions:

• The short time frame proposed by the UWU will have flow on effects for the timeframes in which the parties are required to comply with the draft orders. Notably, under draft order 6, Grill'd would be required to provide to the Agent by 4.00 pm on the second working day after the order is issued, a list of its employees (as at the date of the order) being a list that includes all of the employees who would be covered by the proposed agreement in the prescribed format.

• UWU "may have a small number of members eligible to vote in the ballot"; however, Grill'd on the other hand has a workforce in excess of 4,000 employees nationally.

• Section 443(3A) of the Act requires that when the Commission makes a protected action ballot order, it must specify a date that allows the ballot to be conducted as "expeditiously as possible". This section does not require the Commission to ensure that the ballot closes as quickly as possible or on the date sought by the applicant for the ballot. Nor is the Commission required to specify the shortest possible date simply because this can be achieved by the "UWU's chosen ballot agent."

• [8] Without overlooking the broader statutory context, in terms of the ballot period s.443 of the Act relevantly provides:

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

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

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

(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.

• [9] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd[3] (CEPU v Nilsen), considered the approach to be adopted by the Commission in establishing the ballot period. Amongst other matters, the Full Bench confirmed:

• • The Commission must determine the ballot period in each case as a matter of discretion and is not bound to grant the date proposed in the application and draft order, or that proposed by the employer.[4]

• • Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. This focuses attention on the process of conducting the ballot. "Expeditiously" connotes quickly and efficiently and the notion of "practicable" means that something can be done or put into practice successfully. This provision does not require the Commission to ensure that the ballot closes as quickly as possible. [5]

• • There are a range of case specific considerations, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and the ballot process itself, that are or may be relevant to the exercise of the discretion to set the ballot period. Within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot period is also a relevant statutory context and consideration in setting that period. This is reinforced by the potential consequences of non-attendance by a bargaining representative at such a conference, the legislative purpose of s.448A within the scheme of the Act, and the practical consequences of arranging and conducting the conference at which all bargaining representatives can attend and fully participate and where the Commission can deploy the range of dispute resolution techniques contemplated by the Act.[6]

• [10] In approaching this matter, I have dealt with the various competing submissions on face value. I accept that the Agent could conduct the ballot within the period proposed. This is relevant, but does not itself dictate the period. There is no detail as to whether Grill'd has taken steps to commence the access period for a vote on its proposed agreement. It did not contradict the contention that it intends to do so quickly, and I allow for that prospect noting that in the absence of any statutory reason or contrary order it is entitled to do so. In any event, the Commission is obliged to specify the ballot period to enable the ballot to be conducted as expeditiously as practicable.

• [11] The Employer needs a reasonable time to provide details of the relevant employees to the Agent. It must do so in a format that is required by the Order. Whilst this aspect may require some adaptation[7] of materials available in its records, I observe that if Grill'd is preparing to "quickly" have a vote conducted on its proposed agreement, the basic list of relevant employees and the necessary contact information must be available. A period of 2 working days following the making of the Order would appear to be reasonable to provide that information to the Agent in this case, noting that this Decision and Order is being issued early in the day, thereby giving Grill'd just short of 3 working days in practical terms.

• [12] For reasons outlined above, in exercising the discretion in s.443(3A), the Commission may also have regard to the requirements in relation to conducting the compulsory post ballot order conciliation conferences pursuant to s.448A of the Act. This includes the obligation to provide sufficient notice of the conference to those who are directed to attend, some lead time for preparation and compliance with any pre-conference directions, and the capacity for the Commission to conduct such a conference in a meaningful manner as contemplated by the scheme of the Act. There are certain factors evident in this case that would inform the time necessary for the notice and preparation requirements involved.

• [13] I have had regard to all of these matters and the submissions of the parties more generally. I have determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close in this particular matter is 12 June 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [14] An Order has been separately issued in PR787865.

• [15] 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.

[2] Application for approval of the Grill'd Enterprise Agreement 2024 [2025] FWC 1275 and Application for approval of the Grill'd Enterprise Agreement 2024 [2025] FWC 1097.

[3] [2023] FWCFB 134.

[4] CEPU v Nilsen at [53], [58] and [79].

[7] Including the reference date for the employee list.

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