s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Olex Australia 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 (PABO) in relation to certain employees of Olex Australia Pty Ltd[1] (Olex or Employer).

[2] On 19 February 2026, the Commission was advised that the Employer objected to the Application on the basis that:

• "The UWU has failed to meet the Good Faith Bargaining requirements under s.228 of the Act; and

• There are discrepancies between the (bargaining) claims made in the application and the bargaining discussions to date."

[3] Olex also provided a comprehensive written submission providing details of the basis for these propositions.

[4] The UWU relies upon a declaration and statement of Reece Gittens, Organiser in support of its application and contends that the objections "should be dismissed". The UWU also provided written submissions.

[5] Neither party sought to be further heard on the application. In the circumstances, I have decided to accept the positions and materials provided by the parties on face value and determine the matter on the papers without holding a hearing.

[6] Section 437 of the Act provides as follows:

"437 Application 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."

[7] 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."

[8] 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 are clearly met and are also not in dispute.

[9] Although it is convenient to describe and consider the position advanced by the Employer as objections, the UWU retains the onus to demonstrate that it has met all the relevant statutory requirements for the PABO to be made.

[10] 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 considered and met for an order to be made here is that the UWU has been and is genuinely trying to reach an agreement with the Employer - s.443(1)(b) of the Act.

• [11] 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.[2] This includes, as relevant to this matter:

"[18] 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."[3]

"[57] 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.[4] The Commission should have regard to all of the relevant facts and circumstances of the particular case."[5]

"[53] 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."[6]

"[54] 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."[7]

[12] 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.[8]

• [13] To the extent that elements of the Employer's position suggests that the Application is premature and that it is unnecessary given that bargaining was and should be continuing, I observe that this notion is one that a relatively recent Full Bench of the Commission in Kuiper Australia Pty Ltd v The Australian Workers' Union[9] (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."

[14] The UWU submits that it has been genuinely trying to reach an agreement on the basis of the negotiations to date, which it contends includes:

• 9 bargaining meetings;
• 5 claims being resolved;
• 9 UWU claims have been withdrawn;
• A number of UWU claims have been modified in an attempt to reach an agreement; and
• The UWU has been and remains committed to reaching an agreement with the Employer.

[15] The Employer advanced a number of contentions in support of its objections and these included that:

• Failure to consider company proposals - During bargaining meetings, both Union Delegates and the Union Organiser made statements indicating offers would be rejected before mass meetings had taken place or concluded.
• Unendorsed Additions to the Log of Claims - At the first bargaining meeting on 16 October 2025, the union presented a new version of the log of claims that included an additional item which had not been previously disclosed or endorsed by members.
• Derailing of Bargaining Meetings Through Repeated Threats of Disputes - On multiple occasions, bargaining meetings were derailed by threats to escalate matters into disputes, diverting discussions away from the bargaining agenda and contributing to delays past the nominal expiry date.
• Absence of Counterproposals - Despite repeated requests, the union has not submitted any counterproposals. This lack of responsiveness demonstrates limited engagement and does not support genuine participation in the bargaining process.
• Shifting Positions and Inconsistencies - The union has presented inconsistent positions during bargaining.
• Union Encouraged Protected Action Prior to the Application - This concerned what is said to be the withdrawal from an overtime shift.
• Rejection of Company's Financial Offer Without Consideration - Following the financial offer outlined in the application, the company indicated that adjustments to the second year financial component were possible. The union rejected the offer outright and did not communicate this additional flexibility to its members.

[16] These contentions are disputed by the UWU and it states in response that:

• Formal Employer proposals have ultimately been communicated to members at mass meetings and the UWU has modified some of its claims.
• There is a reasonable explanation for the 'late' claim which is not an indicator of acting in bad faith.
• The dispute issues raised by the UWU have related to genuine issues in the workplace and were not used to "weaponised" as part of bargaining.
• The remaining contentions are denied but in any event are not relevant as to whether the UWU has been and is genuinely trying to reach an agreement with the Employer.

[17] Given the absence of a hearing, I am unable to determine the detailed factual disputes that may be involved here. As previously stated, I have dealt with the positions and materials from the parties on face value. Further, for the most part the matters asserted by the Employer are, or may be, more relevant to the contention that the UWU has not been bargaining in good faith. For reasons set out earlier, the obligations provided by s.228 of the Act should not be conflated with the requirements for the making of a PABO, although the bargaining conduct demonstrated by evidence may be relevant to the extent that it reveals the genuineness of trying to reach an agreement.

[18] In this case, the evidence that is 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. The making of a PABO application at this juncture of the bargaining demonstrated here is not of itself, contrary to that objective. There is also no indication that the UWU is pursuing claims outside the scope of an enterprise agreement or for ulterior motives.

• [19] I would accept that further progress towards making an enterprise agreement in this matter may well be possible without the intervention of a PABO. However, 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. Indeed, the Commission will also order the attendance of the parties at a s.448A conference before the ballot concludes, which is dealt with below. I would also observe that given the history of bargaining here it may, with the benefit of hindsight, have been preferable for the Commission to have been involved in the process much earlier than at this stage. Further, there is a process under the Act[10] to deal with any continuing issues of alleged non-compliance with s.228 of the Act.

[20] On the basis of the material before me, including the declaration of Reece Gittens, 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 Olex, 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.

[21] 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.

• [22] 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 6 March 2026.[11] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[23] An Order has been separately issued in PR796941.

[24] 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] Oles operates under a business name of Nexans Australia.

[2] [2015] FWCFB 210.

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

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

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

[9] [2024] FWCFB 378.

[11] This is, in effect, 10 working days from the making of the Order.

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