Australian Workers' Union v Hy-Tec Industries Victoria Pty Ltd Summary

[2025] FWC 2681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Hy-Tec Industries Victoria Pty Ltd

(B2025/1414)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 9 SEPTEMBER 2025

Proposed protected action ballot of employees of Hy-Tec Industries Victoria Pty Ltd

This is an application by 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 Hy-Tec Industries Victoria Pty Ltd (Hy-Tec Industries or Employer).

On 9 September 2025, the Commission was advised that the Employer, in effect, did not object to the Application if amended to clarify the respondent entity.

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

On the basis of the material before me, including the declaration of Danny Humphrey, 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 Hy-Tec Industries, 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 Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero 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 September 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 PR791588.

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) lodged an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of Hy-Tec Industries Victoria Pty Ltd. The AWU argued that it had been genuinely trying to reach an agreement with Hy-Tec Industries and had satisfied all requirements for a protected action ballot as outlined in section 443(1) of the Act. Hy-Tec Industries did not object to the application, provided that the respondent entity was clarified. The application was for a ballot to be conducted by Vero Engagement & Voting Solutions Pty Ltd, an approved agent under section 468A of the Act.

The legal issues before the Commission were whether the AWU had genuinely attempted to reach an agreement with Hy-Tec Industries and if all prerequisites for a protected action ballot had been met. The Deputy President, Hampton, examined the declaration by Danny Humphrey, an organiser for the AWU, which detailed the union's efforts in bargaining with Hy-Tec Industries. The declaration outlined the steps taken by the AWU to attempt to reach an agreement and confirmed that the union had been genuinely trying to resolve the dispute. The Commission also had to determine the closing date for voting, which was set as 23 September 2025, ensuring it aligned with the requirements of section 443(3)(c) of the Act.

Upon reviewing the provided material, the Deputy President concluded that the AWU had genuinely attempted to reach an agreement and had met all the requirements for a protected action ballot. Consequently, the application was granted, and an order was issued, allowing the ballot to proceed. The date for closing voting was set at 23 September 2025. Additionally, the matter was assigned to another member of the Commission to conduct a compulsory conciliation conference, with directions to ensure meaningful negotiations between the parties. This decision aimed to facilitate further discussions and potentially reach an agreement, thereby avoiding the need for protected action.

Australian Workers' Union v Hy-Tec Industries Victoria Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established