s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Puma 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 in relation to certain employees of Puma Australia Pty Ltd (Puma or Employer).

[2] On 26 February 2026, the Commission was advised that the Employer, in effect, did not object to the Application, but contended that the ballot period should be extended from the proposed 7 working days to 20 working days. The parties did not reach a consent position in relation to the length of the ballot period. General liberty to apply was granted and no application to be further heard has been made.

[3] In the circumstances, I have decided to amend the application and to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Tarek Soueid, Union 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 Puma, 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). 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.

[6] For the purposes of s.443(3)(c) of the Act, the Commission must determine the date by which voting is to close. This also establishes the ballot period for the purpose of s.448A(2) of the Act. The UWU sought a ballot period of 7 working days on the grounds that they are advised Fair Vote could facilitate this ballot period. Puma sought the extended period on the basis that Puma's bargaining representative is indisposed for certain periods citing personal and work-related circumstances. Puma also submitted that it would not be able to meaningfully engage in a s.448A conference within the shorter timeframe, and that the longer period sought would be "practicable" in the circumstances.

• [7] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd[1] (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."[2]

• • "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." [3]

• • "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 maybe 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."[4]

[8] In determining this matter, I have treated the positions of the parties on face value, although the absence of evidence about the lack of capacity for persons other than the bargaining representative for Puma to undertake certain obligations that arise from the PABO is a factor. I have also had regard to the fact there are two stages at which those obligations arise; being the provision of information from the parties for the ballot, which is a function that might well be able to be delegated to or shared with others, and the s.448A conference where it is highly desirable that the bargaining representative for the Employer be available. I have attempted to accommodate what I understand to be the legitimate personal circumstances of the bargaining representative whilst balancing the interests of the UWU in the context of the scheme of the Act.

[9] In terms of the UWU's position that the ballot can be conducted within the 7 working days proposed, for reasons outlined in CEPU v Nilsen whilst I accept that this may be so, that factor is not the only consideration.

• [10] 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 17 March 2026.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[11] An Order has been separately issued in PR797191.

[12] 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] [2023] FWCFB 134.

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

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

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