Australian Workers' Union v SSX Services Pty Limited and OneSteel Recycling Pty Limited Summary

[2025] FWC 2896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

SSX Services Pty Limited and OneSteel Recycling Pty Limited

(B2025/1513)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 29 SEPTEMBER 2025

Proposed protected action ballot of employees of SSX Services Pty Limited and OneSteel Recycling Pty Limited – non-AEC ballot 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 SSX Services Pty Limited (SSX Services) and OneSteel Recycling Pty Limited (OneSteel Recycling), collectively, the Employers.

On 29 September 2025, the Commission was advised that the parties had reached a consent position in relation to the inclusion of an extended period of notice for taking protected industrial action.

In the circumstances, I have decided to amend the application to reflect the consent position reached and otherwise determined the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of David Swan, Organiser, setting out the steps taken by the AWU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, 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 13 October 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The minimum extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order.

An Order has been separately issued in PR792208.

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 Fair Work Commission considered an application by the Australian Workers' Union (AWU) for a protected action ballot order concerning employees of SSX Services Pty Limited and OneSteel Recycling Pty Limited. The AWU sought the order under s.437 of the Fair Work Act 2009, aiming to conduct a ballot for proposed protected industrial action. The application was made on behalf of the employees who were not covered by an existing Australian Electoral Commission (AEC) ballot. The AWU argued that the proposed industrial action was necessary due to the failure of the employers to reach an agreement on certain terms and conditions.

The legal issues before the Commission involved determining whether the AWU had satisfied the statutory requirements for conducting a non-AEC ballot. This included verifying if the AWU had genuinely attempted to reach an agreement with the employers, and if there were exceptional circumstances justifying an extended period of written notice for taking industrial action. The Commission also needed to decide if the proposed ballot agent, Fair Vote Services Pty Ltd, was appropriately authorised to conduct the ballot.

In reaching its decision, the Commission found that the AWU had met all the necessary requirements under the Fair Work Act. The Commission accepted the declaration by David Swan, Organiser of the AWU, which detailed the union's efforts in bargaining with the employers. The Commission also concluded that there were exceptional circumstances that warranted an extended period of written notice for taking industrial action. Consequently, the Commission amended the application to reflect the consent position on the extended notice period and issued an Order setting the closing date for voting as 13 October 2025. The Commission further determined that the ballot would be conducted by Fair Vote Services Pty Ltd, which was authorised under s.468A of the Act.

The Fair Work Commission issued an Order to conduct the protected action ballot, setting the closing date for voting as 13 October 2025. The Order also mandated an extended period of five working days' written notice for the industrial action specified in Clause 5 of the Order. Additionally, the Commission assigned the matter to another Member for a compulsory conciliation conference under s.448A of the Act, intending to ensure meaningful negotiations between the parties.

Australian Workers' Union v SSX Services Pty Limited and OneSteel Recycling Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established