Australian Workers' Union v Air Liquide Australia Limited

[2025] FWC 2472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Air Liquide Australia Limited

(B2025/1327)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 AUGUST 2025

Proposed protected action ballot of employees of Air Liquide Australia Limited

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 Air Liquide Australia Limited (Air Liquide or Employer).

On 21 August 2025, the Commission was advised that the Employer, in effect, 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 David Swan, Lead Organiser, 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 Air Liquide, 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 Australian Electoral Commission (AEC).

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 3 October 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 PR790929.

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 was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Air Liquide Australia Limited. The application was made under section 437 of the Fair Work Act 2009, with the AWU seeking to conduct a ballot for protected industrial action due to ongoing difficulties in reaching an agreement with the employer. The employer, Air Liquide Australia Limited, did not object to the application. Consequently, the matter was determined on the submitted documents without the need for a hearing.

The key legal issues before the Commission were whether the AWU had genuinely attempted to reach an agreement with Air Liquide and if all statutory requirements for a protected action ballot were satisfied. The AWU submitted a declaration from David Swan, their Lead Organiser, detailing the bargaining process and their efforts to negotiate. The Commission had to assess the evidence to ensure compliance with the Act, particularly under section 443(1) regarding the notification time and the criteria for a protected action ballot.

The Deputy President concluded that the AWU had genuinely tried to reach an agreement and that all necessary requirements were met. The Commission ordered the Australian Electoral Commission to conduct the ballot, setting 3 October 2025 as the closing date for voting, which equates to 30 working days from the order date. The matter was assigned to another Commission member for a compulsory conciliation conference under section 448A of the Act, with directions to ensure the parties are prepared for meaningful negotiations. An order was separately issued for this purpose.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established