United Workers' Union v Fenner Dunlop Australia Pty Ltd Summary

[2025] FWC 2856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Fenner Dunlop Australia Pty Ltd

(B2025/1498)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 25 SEPTEMBER 2025

Proposed protected action ballot of employees of Fenner Dunlop Australia Pty Ltd – non-AEC ballot agent electronic voting

This is an application by the United Workers’ Union (UWU 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 Fenner Dunlop Australia Pty Ltd (Fenner Dunlop or Employer).

On 25 September 2025, the Commission was advised that the Employer, in effect, did 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 Liam Armstrong, Organiser, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Fenner Dunlop, 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 10 October 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 PR792096.

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 United Workers' Union (UWU) sought a protected action ballot order from the Fair Work Commission (FWC) in relation to certain employees of Fenner Dunlop Australia Pty Ltd, under section 437 of the Fair Work Act 2009. The application was made to facilitate a ballot for proposed protected action by the employees. Fenner Dunlop objected to the application, but the Deputy President decided to determine the matter on the papers without holding a hearing.

The primary legal issue for the FWC was whether the UWU had met the requirements set out in section 443(1) of the Act, including the necessity of a notification time for the proposed agreement and the union's genuine attempt to reach an agreement with Fenner Dunlop. Additionally, the FWC had to consider whether the proposed ballot agent, Fair Vote Services Pty Ltd, was eligible and authorised to conduct the ballot under section 468A of the Act. Furthermore, the Commission needed to determine the closing date for voting in compliance with section 443(3)(c) of the Act.

After reviewing the material provided, including the declaration by Liam Armstrong, the Organiser of the UWU, the Deputy President found that all requirements for the ballot had been met. The UWU had genuinely attempted to reach an agreement with Fenner Dunlop and had established a notification time for the proposed agreement. Fair Vote Services Pty Ltd was approved as an eligible protected action ballot agent and authorised to conduct the ballot. The FWC set 10 October 2025 as the closing date for voting, which also established the ballot period under section 448A(2) of the Act. An order was issued in PR792096, and the matter was assigned to another Member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act.

United Workers' Union v Fenner Dunlop Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established