Association of Professional Engineers, Scientists and Managers, Australia v Boeing Aerostructures Australia Pty Ltd

[2025] FWC 1914

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Association of Professional Engineers, Scientists and Managers, Australia
v

Boeing Aerostructures Australia Pty Ltd

(B2025/1083)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 JULY 2025

Proposed protected action ballot order of employees of Boeing Aerostructures Australia Pty Ltd

This is an application by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA 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 Boeing Aerostructures Australia Pty Ltd (Boeing or Employer).

On 3 July 2025, the Commission was advised that the Employer did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Sean Kelly, Victoria and Queensland Director, setting out the steps taken by APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Boeing, 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.

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.

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 21 July 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR788889.

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 for 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.

DEPUTY PRESIDENT

[1] This is, in effect, 12 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Boeing Aerostructures Australia Pty Ltd. The application aimed to facilitate a ballot to determine if the employees would support protected industrial action. Boeing did not object to the application, allowing the Commission to proceed with the matter based on the submitted documents.

The central legal issue the Commission had to address was whether all the requirements under section 443 of the Act were met for the proposed agreement, and if the notification period was correctly established. The Commission examined the declaration from Sean Kelly, APESMA's Victoria and Queensland Director, which detailed the bargaining process and APESMA's efforts to reach an agreement with Boeing. Additionally, the Commission assessed whether Fair Vote Services Pty Ltd, the appointed ballot agent, was qualified under section 468A of the Act.

The Deputy President concluded that all conditions stipulated in section 443(1) of the Act had been fulfilled, and there was a notification period for the proposed agreement. Given the absence of objections from Boeing, the Deputy President issued an order specifying that the voting period would close on 21 July 2025. This date was also set as the ballot period under section 448A(2) of the Act. A separate order was issued in PR788889, and the matter was assigned to another Commission member for the compulsory conciliation conference.

The Deputy President’s decision was based on the completeness of the application and the absence of objections from Boeing. The Commission confirmed that the steps taken by APESMA in the bargaining process were genuine and in line with the requirements of the Act. Consequently, the application for the protected action ballot order was granted, and the specified voting period was set to close on the specified date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established