s.437 - Application for a protected action ballot order

Proposed protected action ballot by employees of MSS Security 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 (PABO) in relation to certain employees of MSS Security Pty Ltd (MSS Security or Employer).

• [2] On 23 July 2025, the Commission was advised that the Employer objected to the Application on three grounds as follows:
  • That the UWU has failed to genuinely try to reach an agreement on the basis that only three meetings have taken place, the last of which took place four calendar days prior to the UWU lodging the application. It further relies on what it has described as the short timeframe from the most recent development to the present application being lodged, not having formally addressed several outstanding matters, and ongoing negotiations and commitments to regular bargaining meetings to support this limb of their objection.

• MSS Security assert that the proposed industrial action has not been expressed with sufficient clarity to enable employees to make an informed decision in any subsequent ballot. MSS Security contend that depending on the scope and duration of the action, the consequences could range from minimal disruption to severe operational failure. It also contends that "the vague and open-ended nature of the proposed bans and stoppages makes it impossible for MSS to assess or appropriately plan for their potential impact."

• Thirdly, it contended that given several of the sites listed in the application are Defence facilities, that the withdrawal of security coverage poses a risk to national security. This objection was later withdrawn by MSS Security, and I have not dealt with it in this Decision.

• [3] In response to the Employer's objections as pressed, the UWU contended that:
• • The first objection was 'baseless', it had met the test established in Total Marine Services Pty Ltd v Maritime Union of Australia[1], and that it is well established that an impasse in negotiations need not be reached for a PABO to be made.[2]

• Drawing on authority, the UWU contend that the proposed ballot questions properly "contains proposed action of an identified character, kind or sort capable of constituting industrial action within the meaning of s.19; are clearly capable of being answered "yes" or "no" by the employees participating in the ballot", and are mostly standard-form PABO questions which the "UWU regularly uses, and which are routinely approved by the Fair Work Commission". The UWU referenced examples of similar questions previously approved in Orders by the Commission. It further contended that other later proceedings may be open to the Employer and indicated that if industrial action is authorised, a subsequent notice consistent with s.414 of the Act will address the specifics of how the action is to be taken, at which worksite, and detail the dates and times.

• [4] Despite an opportunity to do so, neither party sought a hearing. In those circumstances, and noting the nature of the objections raised, I have decided to determine the matter on the papers without holding a hearing.

• [5] 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."

• [6] Section 443 of the Act relevantly 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."

• [7] 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.

• [8] 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.

• [9] The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has 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]

• [10] 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.[9]

• [11] The notion that an application for a PABO has been brought prematurely is one that a relatively recent Full Bench of the Commission in Kuiper Australia Pty Ltd v The Australian Workers' Union[10] (Kuiper) has considered and 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."

• [12] 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 the Employer. 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.

• [13] To the extent that the Employer indirectly raises the notion that the UWU may not be meeting the good faith bargaining requirements of the Act,[11] 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.[12] In that regard, I observe that there is no requirement that the bargaining be exhausted or that there be an impasse before an application of this kind is made. Further, a PABO application does not stop the bargaining and the good faith bargaining obligations remain.

• [14] As with the matters cited by the UWU in its submissions, 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, 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.

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

• [16] On the basis of the material before me, including the declaration of Nicholas Richardson, Trade 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 MSS Security, 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.

• [17] I now turn to MSS Security's objection that the proposed forms of industrial action cited in clause 5 of the proposed order have not been provided with sufficient clarity.

• [18] In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,[13] the Full Bench made the following observations:

" [19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant."[14]

• [19] This approach was affirmed by the Full Bench in National Tertiary Education Industry Union v Curtin University,[15] who said the following in relation to the proper construction of s.437(3)(b):

"[50] Section 437(3)(b) also requires that the question(s) must include specification of "the nature of the industrial action". In context, this is to be read as meaning that the "the nature of the industrial action" must be the subject of the question - that is, it must be the matter for which a "yes" or "no" answer is sought. The word "nature" is one of high generality, and in context refers to the "character, kind or sort" of the industrial action. The proposed action specified in the question must be something that is capable of constituting "industrial action" within the meaning of the definition of that expression in s 19(1) of the FW Act."[16]

• [20] In that case, the Full Bench went on to say:

"[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been "made under section 437" for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered "yes" or "no" by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling "informed consent" goes beyond the text of the provision and constitutes a gloss on the statute."[17]

• [21] The proposed forms of industrial action are capable of being answered 'yes' or 'no' by the employees participating in the ballot and refer to various forms of work stoppages, and restrictions, limitations or bans on the normal performance of work. These terms are expressions consistent with the scope of industrial action referred to in s.19. The UWU has specified the 'nature of the proposed industrial action' as required by s.437(3), noting that all that is required is to specify the 'character, kind or sort' of the industrial action, given that the word 'nature' is one of high generality. In this regard, I also observe that it has not been suggested in this matter that any of the proposed questions do not involve industrial action as defined by s.19 of the Act.

• [22] The matters that the Employer is concerned about include the lack of specificity in the proposed questions and their impact on MSS's capacity to assess or appropriately plan for their potential impact. This is more relevant to the notice requirements in s.414(1), but is not presently relevant to my consideration of an application made pursuant to s.437(3) if I am otherwise satisfied that the application, including the questions, meet the requirements of that provision. Having regard to the parties' submissions and the relevant authorities, I am satisfied that the proposed questions meet the requirements of s.437(3)(b) and propose to include all questions in the protected action ballot sought by the UWU.

• [23] 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.

• [24] The structure of the draft order has been amended to reflect the Fair Work Commission's standard template.

• [25] 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 August 2025.[18] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [26] An Order has been separately issued in PR789969.

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

[2] United Workers' Union v MSS Security Pty Ltd T/A MSS Security [2024] FWC 1951, at [11].

[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].

[10] [2024] FWCFB 378.

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

[13] [2010] FWAFB 526.

[15] [2022] FWCFB 204.

[18] This is, in effect, 10 working days from the anticipated commencement date of the ballot, and was the period sought in the application.

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