The Australian Workers' Union v Fulton Hogan Industries Pty Ltd Summary

[2025] FWC 2827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Workers' Union

Fulton Hogan Industries Pty Ltd

(B2025/1478)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 22 SEPTEMBER 2025

Proposed protected action ballot of employees of Fulton Hogan Industries 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 Fulton Hogan Industries Pty Ltd (Fulton Hogan or Employer).

On 19 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 Anthony Beven, 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 Fulton Hogan, 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 the Australian Electoral Commission (AEC).

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 3 November 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 PR791980.

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, 30 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) applied for a protected action ballot order concerning certain employees of Fulton Hogan Industries Pty Ltd (Fulton Hogan). The application was made under section 437 of the Fair Work Act 2009. Fulton Hogan did not object to the application, and the matter was determined on the papers without a hearing. The AWU submitted that it had been genuinely trying to reach an agreement with Fulton Hogan and had taken the necessary steps in bargaining. The Commission was satisfied that the requirements for a notification time and the proposed agreement had been met, and it granted the application for a ballot.

The legal issues before the Commission included whether the AWU had genuinely attempted to reach an agreement with Fulton Hogan and whether all requirements under section 443(1) of the Act had been satisfied. The Commission reviewed the declaration by Anthony Beven, Organiser of the AWU, which detailed the steps taken in bargaining and the union's efforts to reach an agreement. The Commission concluded that the AWU had met all the statutory requirements and was therefore entitled to proceed with the ballot. The timing of the ballot was set, with voting to close on 3 November 2025, effectively 30 working days from the making of the order.

The Commission determined that the ballot would be conducted by the Australian Electoral Commission and assigned the matter to another member for a compulsory conciliation conference. This member would issue an order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. The aim was to ensure that the parties were ready for meaningful negotiations. The decision was made in the absence of objections from Fulton Hogan, and the matter was moved forward to facilitate the conciliation process.

The final orders included the approval of the protected action ballot, the setting of a closing date for voting, and the assignment of the matter for a compulsory conciliation conference. The Commission also issued an order for the attendance of all bargaining representatives in the proposed enterprise agreement at the conference, with directions to ensure meaningful negotiations.

The Australian Workers' Union v Fulton Hogan Industries Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established