Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Moffat Pty Limited

[2025] FWC 1899

[2025] FWC 1899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Moffat Pty Limited

(B2025/1074)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 3 JULY 2025

Proposed protected action ballot order of employees of Moffat Pty Limited

1. This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU 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 Moffat Pty Limited (Moffat or Employer).

1. I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

1. On 2 July 2025, the Commission was advised that the Employer, in effect, objected to the Application on the grounds that the employer has been actively participating in good faith bargaining and has recently tabled an offer which reflects a genuine commitment to addressing employee concerns. In substance, the employer expressed disappointment that the Union had chosen to pursue protected industrial action. Moffat’s position is that the timing and nature of the application suggest an approach which is “excessive and unreasonable” given the progress in negotiations. It also raised concerns that initiating a ballot for industrial action in the circumstances undermined the constructive bargaining process.

1. The reference to “good faith” in the Employer’s position I apprehend to be to the good faith bargaining requirements set out in s.228 of the Act.

1. Neither party sought a hearing.  In those circumstances and noting the nature of the objections raised, I have decided to determine the matter on the papers without holding a hearing. I have had regard to the position advanced by Moffat and the other material before the Commission in making my decision.

1. I observe that the nature of these objections and the general circumstances of the bargaining are common with the related matter referenced above. What follows should be read in conjunction with the decision[2] of the Commission issued in that matter (related decision).

1. Section 437 of the Act provides as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1)A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a)a greenfields agreement; or

(b)a cooperative workplace agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a)the group or groups of employees who are to be balloted; and

(b)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and

(c)the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.

Note:The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a)will be covered by the proposed enterprise agreement; and

(b)either:

(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany the application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

1. Section 443 of the Act provides:

“443 When the FWC must make a protected action ballot order

(1)The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a)an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2)The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3)A protected action ballot order must specify the following:

(a)the name of each applicant for the order;

(b)the group or groups of employees who are to be balloted;

(c)the date by which voting in the protected action ballot closes;

(d)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;

(e)the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

(f)the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(3A)For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(5)If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

1. I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above were also not in dispute.

1. In the related decision I outlined in some detail the scheme of the Act and the approach required to the assessment as to whether an applicant for a PABO was genuinely trying to reach an agreement. I have applied the same to this matter.

1. Under the Act, in this case the CEPU must demonstrate that it has met (and where relevant continues to meet) all of the statutory requirements. There is no dispute that the CEPU was entitled to bring the application, and a valid application has been made under s.437 of the Act. The substantive requirement that must be met is whether the CEPU has been and is genuinely trying to reach an agreement with the employer – s.443(1)(b) of the Act.

1. The evidence before the Commission demonstrates the history of the bargaining, the series of bargaining meetings that have been conducted and some more recent developments. This evidence also generally supports the notion that the CEPU has been and is genuinely trying to reach an agreement with Moffat. It has also meaningfully engaged and continues to engage with the bargaining process with the genuine objective of reaching an agreement. It also remains committed to negotiating a new enterprise agreement with the Employer and its actions confirm that it is doing so genuinely.

1. To the extent that Moffat faintly raises the notion that the CEPU may not be meeting the good faith bargaining requirements of the Act,[3] this has not been made out. In any event, I have taken into account the concerns that are directly relevant to the determination of the present matter, where supported by any evidence.[4] In that regard, I observe that there is no requirement that the bargaining be exhausted before an application of this kind is made. Further, a PABO application does not stop the bargaining, and the good faith bargaining obligations remain, including that the parties must continue to bargain.

1. As with the related matter, I would be open to the suggestion that progress in bargaining for a new enterprise agreement in this matter remains possible without recourse to protected industrial action. However, this is not the test for a PABO to be issued and protected industrial action as part of bargaining, provided that the various statutory requirements have been met, is part of the scheme of the Act.

1. I find that the CEPU has met the requirements of s.443(1)(b) of the Act.

1. On the basis of the material before me, including the declaration of Shannon Crundwell, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Moffat, 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. 

1. 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. 

1. 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 17 July 2025.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act. 

1. I observe that the application provided in this matter contained certain observations about the CEPU’s preference in relation to the updating and finalisation of the list of voters, and some related matters. These were not in a form suitable for inclusion in the Order and contradicted some of the other proposed provisions. In that light, I have not issued additional directions and have issued the Order using the Commission’s standard approach, noting that this is also consistent with the role to be played by the Act and associated regulations in the conduct of the ballot. I also observe that the Ballot Agent may have regard to the proposals set out in the application to the extent that they are consistent with the Order and the proper conduct of a ballot of this kind.

1. An Order has been separately issued in PR788855.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter if a Protected Action Ballot Order is granted. To the extent that this matter involves any additional bargaining representatives, that Member will issue an Order requiring their attendance 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] B2025/1073.

[2] AMWU v Moffat Pty Limited[2025] FWC 1894.

[3] Section 228 of the Act.

[4] Noting that the two concepts are related but should not be conflated.

[5] 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

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