Australian Municipal, Administrative, Clerical and Services Union v Barwon Asset Solutions Pty Ltd

[2025] FWC 2046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v

Barwon Asset Solutions Pty Ltd

(B2025/1131)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 16 JULY 2025

Proposed protected action ballot of employees of Barwon Asset Solutions Pty Ltd

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU 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 Barwon Asset Solutions Pty Ltd (Barwon or Employer).

On 15 July 2025, the Commission was advised that the Employer, in effect, did not object to the Application, as amended.

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

On the basis of the material before me, including the declaration of David Nunns, Branch Organiser, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Barwon, 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 the Australian Electoral Commission.

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 27 August 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 PR789683.

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.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order and is the minimum period required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU) 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 Barwon Asset Solutions Pty Ltd. The dispute involved the proposed industrial action ballot, with Barwon Asset Solutions not objecting to the application. The application was granted leave to amend, and the matter was determined on the papers without a hearing. The Deputy President, Wright, was satisfied that the requirements of section 443(1) of the Act had been met, including the notification time for the proposed agreement and the union's genuine attempts to reach an agreement with the employer.

The legal issues before the court included whether the union had genuinely tried to reach an agreement with the employer and if all the requirements under section 443(1) of the Act had been met. The court had to determine if the notification time for the proposed agreement was valid and if the union's efforts to negotiate with the employer were genuine. The court also had to decide on the appropriate date for closing the ballot, ensuring it was within the minimum period required by the Australian Electoral Commission.

The court concluded that the ASU had genuinely tried to reach an agreement with Barwon Asset Solutions and that all the requirements under section 443(1) of the Act were met. The court determined that the notification time for the proposed agreement was valid and granted the application for a protected action ballot order. The court also set the closing date for voting as 27 August 2025, which is the minimum period required by the Australian Electoral Commission. The matter was referred to another Member of the Commission for a compulsory conciliation conference, with directions likely to be issued to ensure meaningful negotiations.

The final orders included granting leave to amend the application, determining the matter on the papers, and setting the closing date for voting as 27 August 2025. The court also directed that the matter be assigned to another Member of the Commission for a compulsory conciliation conference. This decision ensures that the union can proceed with the ballot while also facilitating further negotiations between the parties to reach a resolution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established