Australian Workers' Union v NX Blue Recruit Pty Ltd Summary

[2025] FWC 2642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

NX Blue Recruit Pty Ltd

(B2025/1401)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 SEPTEMBER 2025

Proposed protected action ballot of employees of NX Blue Recruit Pty Ltd

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 NX Blue Recruit Pty Ltd (NX Blue Recruit or Employer).

On 5 September 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 Steven Rochester, Trade Union Official, 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 NX Blue Recruit, 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 22 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 PR791492.

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

In the Fair Work Commission, the Australian Workers' Union (AWU) lodged an application for a protected action ballot order against NX Blue Recruit Pty Ltd. The AWU sought to conduct a ballot of NX Blue Recruit's employees under section 437 of the Fair Work Act 2009 (Cth) to authorise protected industrial action. NX Blue Recruit did not oppose the application, and the matter was decided on the papers without a hearing. The Deputy President, Hampton, found that the AWU had met the requirements under section 443(1) of the Act, including demonstrating a good faith attempt to reach an agreement with the employer. Fair Vote Services Pty Ltd was approved to conduct the ballot, and the Commission set the closing date for voting as 22 September 2025.

The legal issue before the Commission was whether the AWU had satisfied the conditions under section 443(1) of the Fair Work Act for a protected action ballot. The AWU needed to show that a notification period had been provided and that it had genuinely attempted to negotiate with NX Blue Recruit. The AWU provided a declaration by Steven Rochester, a Trade Union Official, which outlined the bargaining process and efforts to reach an agreement. The Deputy President Hampton accepted this evidence and concluded that the AWU had met the necessary criteria. Consequently, the application was successful, and the Commission authorised the ballot to proceed. The ballot was to be conducted by Fair Vote Services Pty Ltd, who had been approved as an eligible agent under section 468A of the Act.

The Deputy President Hampton determined that the closing date for the ballot voting would be 22 September 2025, effectively 10 working days from the date of the Order. This date was also set as the ballot period for the purpose of section 448A(2) of the Act. The matter was referred to another Member of the Commission for a compulsory conciliation conference under section 448A. This Member would issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference and may issue Directions to ensure the parties are prepared for meaningful negotiations. The Deputy President Hampton's decision allowed the AWU to proceed with the ballot to seek employee authorisation for protected industrial action against NX Blue Recruit.

Australian Workers' Union v NX Blue Recruit Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established