Australian Workers' Union v BOC Limited

[2025] FWC 3023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

BOC Limited

(B2025/1567)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 9 OCTOBER 2025

Proposed protected action ballot of employees of BOC Limited – non-AEC ballot agent electronic voting

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 BOC Limited (BOC or Employer).

On 9 October 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 Robert Nguyen, 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 BOC, 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 23 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 PR792521.

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, 10 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) made an application to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of BOC Limited. The AWU sought to organise a ballot to determine the employees' willingness to engage in protected industrial action due to unresolved negotiations over an enterprise agreement. On 9 October 2025, BOC indicated it did not object to the application. Consequently, Deputy President Wright decided to adjudicate the matter based on the documentation submitted, without holding a formal hearing.

The primary legal issues before the court involved confirming whether the AWU had fulfilled the statutory requirements to hold a protected action ballot. This included verifying if there was a notification period for the proposed agreement, if the union had genuinely attempted to reach an agreement with BOC, and if the specified ballot agent, Fair Vote Services Pty Ltd, was duly authorised under section 468A of the Act. Additionally, the court had to determine an appropriate closing date for the ballot, ensuring compliance with section 443(3)(c) of the Act.

Deputy President Wright determined that the AWU had met all the necessary statutory criteria. The union had provided sufficient evidence, including a declaration by Robert Nguyen, the Organiser, outlining the bargaining efforts and the genuine pursuit of an agreement with BOC. Fair Vote Services Pty Ltd was confirmed as an approved ballot agent, thus authorised to conduct the ballot. The Deputy President set the closing date for voting as 23 October 2025, which aligned with the requested 10 working days from the order date. The decision also included a separate order for a compulsory conciliation conference to facilitate further negotiations between the parties.

The Fair Work Commission issued an order in PR792521 to conduct the ballot and mandated the attendance of all bargaining representatives in the conciliation conference. Further, the Deputy President indicated that directions would be issued to ensure meaningful negotiations took place during the conference. This comprehensive decision by the Fair Work Commission aimed to facilitate the resolution of the dispute and adherence to the statutory requirements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established