"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union v TOP Welding & Construction Pty Ltd [2026] FWC 1737

1 Fair Work Act 2009 s.437 - Application for a protected action ballot order "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union v TOP Welding & Construction Pty Ltd (B2026/532) DEPUTY PRESIDENT HAMPTON ADELAIDE, 13 MAY 2026 Proposed protected action ballot of employees of TOP Welding & Construction Pty Ltd –AEC ballot [1] This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (AMWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of TOP Welding & Construction Pty Ltd (TOP Welding or Employer)1. [2] On 12 May 2026, the Commission was advised that the Employer objected to the application on the ground that industrial action at this stage would be “counter-productive to the sustainability of the business” and has the “potential to present long-term financial risks to the business”. The AMWU contended that it had met all of the requirements for the PABO to be issued. [3] Neither party sought a hearing. In the circumstances, given the nature of the objections raised, I have given the parties an opportunity to provide further submissions and decided to determine the matter on the papers without holding a hearing. [4] 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. [2026] FWC 1737 DECISION -- 1 of 7 -- [2026] FWC 1737 2 (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.” -- 2 of 7 -- [2026] FWC 1737 3 [5] Section 443 of the Act relevantly 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.” [6] 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 if not all, of the matters raised in the provisions above are also not in dispute. [7] The AMWU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. There is no dispute that the AMWU 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 AMWU has been and is genuinely trying to reach an agreement with the Employer – s.443(1)(b) of the Act. -- 3 of 7 -- [2026] FWC 1737 4 [8] The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has previously been summarised, in effect, by the Full Bench in Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers’ Union.2 This includes, as relevant to this matter: “[18] While there is a relationship between the good faith bargaining requirements in s.228 of the Act and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.”3 “[57] The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.4 The Commission should have regard to all of the relevant facts and circumstances of the particular case.”5 “[53] It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.”6 “[54] The reference to the Commission being ‘satisfied’ means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant union. The expression ‘has been, and is’, imports temporal considerations. The Commission’s attention is thereby directed to the applicant’s prior conduct at the time the application for a protected action ballot order is determined. Given the context the reference to ‘an agreement’ is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the Act.”7 [9] The expression “genuinely trying” has also been taken to be concerned with the genuineness or authenticity of the trying; that is, the efforts, by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act.8 [10] The Employer’s position is, in effect, that the application is unnecessary, given that bargaining was continuing and achievable without the disruption of industrial action. The further substance of the objection is that the Employer contends that “strike action” would further exacerbate financial pressures and harm the business. [11] Given the basis of the Employer’s objections, it is appropriate that I say something about the bargaining scheme of the Act which is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union,9 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair -- 4 of 7 -- [2026] FWC 1737 5 Work Australia.10 In general terms, the function of the PABO is established by Part 3-3 of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action (PIA) in support of bargaining for relevant enterprise agreements. Further, the taking of PIA by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement. [12] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,11 whether the action is notified in accordance with the requirements of the Act,12 and whether it is industrial action within the meaning of the Act.13 Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population, or of part of it, or causes significant damage to the Australian economy, or an important part of it,14 or causes significant economic harm.15 Industrial action that is not PIA may also be prevented.16 [13] The notion that an application for a PABO has been brought prematurely is one that a relatively recent Full Bench of the Commission in Kuiper Australia Pty Ltd v The Australian Workers’ Union17 (Kuiper) has considered and relevantly stated: “[31] That is not to suggest that whether a bargaining representative has been, and is, genuinely trying to reach agreement involves an assessment of whether the bargaining representative is “unduly rushing” to take protected industrial action. The Act expressly deals with when protected industrial action can be taken. Application for a protected action ballot order must not be made unless there has been a “notification time” (s 437(2A)) and cannot be made earlier than 30 days before the nominal expiry of an existing enterprise agreement (s 438(1)). Protected industrial action must not actually be organised or engaged in before the nominal expiry date of an existing agreement (s 413(6)) or if a suspension or termination order, Ministerial declaration or intractable bargaining declaration is in operation (s 413(7)). Otherwise, the Act does not dictate when a bargaining representative should seek a protected action ballot order. [32] The Act contemplates that an application for a protected action ballot order can be made as soon as there has been a “notification time” so long as that date is not more than 30 days before the nominal expiry of an existing agreement. The requirement, in s 443(1)(b), that an applicant has been, and is, genuinely trying to reach agreement does not impose a further de facto time constraint on when protected industrial action can be taken by prescribing that bargaining must have developed to some minimum stage or level. The Act does not countenance such an approach. [34] An allegation that an application for a protected action ballot order is premature does not, of itself, provide a basis for concluding that the applicant for the order has not been, or is not, genuinely trying to reach agreement. The Act envisages that protected action might be taken early in bargaining. The Commission must simply consider whether, in light of the circumstances operating at the time of its decision, the applicant has been, and is, genuinely seeking agreement. The reference to “premature -- 5 of 7 -- [2026] FWC 1737 6 applications” in Total Marine Services has been doubted or not followed in subsequent decisions, particularly JJ Richards (FWAFB), Farstad Shipping and Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union [2015] FWCFB 210; (2015) 247 IR 5. Kuiper did not suggest we should follow the reasoning in the fourth and fifth sentences of paragraph [32] of Total Marine Services.” [14] In this case, the evidence before the Commission supports the notion that the AMWU has been and is genuinely trying to reach an agreement with the Employer. The making of a PABO application is not of itself, contrary to that objective. [15] I would accept that further progress towards making an enterprise agreement in this matter may well be possible without the intervention of a PABO. However, for reasons already stated there is no requirement that the bargaining be exhausted or that there be an impasse before an application of this kind is made. Further, a PABO application does not stop the bargaining and the good faith bargaining obligations remain. [16] To the extent that the employer contends that industrial action has the potential to present long-term financial risks to the business, there is no evidence to permit a finding of that kind to be made. However, I have treated this submission on face value. Importantly, I have earlier set out the scheme of the Act. This includes that subject to the prerequisites for a PABO being met, the taking of protected industrial action in bargaining is part of that scheme. Further, the extent of any adverse impact on the employer will depend on factors including whether the ballot questions are endorsed by the majority of employees, and the nature and scope of any industrial action that is ultimately notified and taken. As outlined earlier, there are also applications open to an employer depending on the nature of those consequences. Ultimately this is a matter for later consideration. [17] On the basis of the material before me, including the declaration of Daniel Yacoub, Industrial Officer, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with TOP Welding, 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. [18] The ballot is to be conducted by the Australian Electoral Commission (AEC). [19] 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 25 June 2026.18 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [20] An Order has been separately issued in PR799990. [21] 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. -- 6 of 7 -- [2026] FWC 1737 7 DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR799989 > 1 The application was amended to confirm the correct entity of the Employer following clarification from the parties. 2 [2015] FWCFB 210. 3 Ibid at [18]. 4 Ibid at [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia [2009] FWAFB 368 (Total Marine). 5 Ibid at [57]. 6 Ibid at [35] - but qualifying a further statement made in Total Marine. 7 Ibid at [54]. 8 J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 at [89] and Kuiper at [26] to [30]. 9 [2010] FWAFB 526. 10 [2012] FCAFC 53. 11 Sections 437, 408 and 409 of the Act. 12 Section 414 of the Act. 13 Section 19 of the Act. 14 Section 424 of the Act. 15 Section 423 of the Act. 16 Section 418 of the Act. 17 [2024] FWCFB 378. 18 This is, in effect, 30 working days from the making of the Order and this is the minimum period required by the AEC to conduct a ballot of this kind. -- 7 of 7 --