Australian Workers' Union, The

[2025] FWC 237

[2025] FWC 237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The

(B2025/159)

COMMISSIONER CONNOLLY MELBOURNE, 24 JANUARY 2025

Proposed protected action ballot of employees of Jaze Nominees Pty Ltd as Trustee for ZB Trust T/A Frankston Concrete Products

1. This is an application by the Australian Workers’ Union (AWU 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 Jaze Nominees Pty Ltd as Trustee for ZB Trust T/A Frankston Concrete Products (Jaze Nominees or Employer).

1. On 23 January 2025, the Commission was advised that the Employer objected to the application on grounds that if authorised actions proposed by questions in the application would create a risk of potential damage to equipment and pose a potential risk to health and safety.  The proposed actions of concern related to stoppages of work. The Respondent provided written submissions in support of its positions, identifying that if the application proceeds in its current form as concrete batching plant, “it is highly likely the plant will be physically damaged.”

1. In receipt of this objection, the Commission provided the parties with an opportunity to provide further submissions or indicate if they would like to be further heard in relation to the application by 4:00pm on Friday, 24 January 2025. 

1. The AWU indicated it relied on its application and written submissions provided to the Commission on 23 January 2025. The Respondent made no further submissions.  Neither party sought to be heard further in relation to the application. I have therefore considered it appropriate in the circumstances to determine the application on the material filed.

Submissions of the Parties 

1. The AWU submits the questions in its application are sufficiently clear in line with the decision of the Full Bench, that the notice requirements will provide the Respondent with plenty of time to put in place measures to address it concerns and presses its application be made in accordance with requirements on the Commission in section 443(1). The Respondent relies on its objections and concerns raised as indicated above at [2].

1. There is no dispute the application has been made under s.437 of the Act.  Nor are there are other grounds of objection relied upon by the Respondent. 

Consideration

1. The Respondent has not presented any evidence to support a conclusion that there are any grounds the application should not be made.  Its concerns of potential impact of proposed industrial action are not supported by evidence and appear no more than potential risks.  Each of which have the potential of being addressed, as the Applicant submits, by a minimum 3-day notice period, ongoing bargaining and a compulsory conference before the Commission.

1. The AWU’s position is that it has been, and is, seeking to reach an agreement between its members and the employer on these claims. 

1. This submission is supported in evidence by the statutory declaration of Mr Danny Humphrey, AWU Organiser, that the AWU has been, and is continuing, trying to reach an agreement with the Respondent.   In JJ Richards & Sons v Fair Work Australia[1] the Full Court of the Federal Court affirmed that all that is required is that the party seeking the protected action ballot order be “genuinely trying” to reach an agreement. 

1. Section 443 of the Act sets out when the Commission must make a protected ballot order as follows:

“443 When the FWC must make a protected ballot order

(1)   The FWC must make a protected ballot order in relation to a proposed enterprise agreement if:

(a)an application has been made under 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.”

1. This being the case, and on the basis of the material before me, including the declaration of Mr Danny Humphrey, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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.

1. The ballot is to be conducted by the Australian Electoral Commission (AEC).

1. 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 10 March 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR783676.

1. In due course, the Commission will take the steps necessary to conduct the s.448A compulsory conciliation conference.  An Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference will be issued.  It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations

COMMISSIONER

[1] [2012] FCAFC 53.

[2] This is, in effect, 30 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

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