"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Acciona M&E Pty Ltd [2026] FWC 1869

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 (AMWU) v Acciona M&E Pty Ltd (B2026/558) COMMISSIONER CLARKE MELBOURNE, 22 MAY 2026 Proposed protected action ballot of employees of Acciona M&E Pty Ltd – non-AEC ballot agent electronic voting. [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 Acciona M&E Pty Ltd (Acciona or Employer). The application was made on 20 May 2026. [2] On 20 May 2026, the Commission was advised that the Employer opposed the application and sought to be heard in respect of it. Two grounds for opposition were identified in that initial notification: Firstly, that the AMWU has not been, and is not, genuinely trying to reach agreement with the Employer, and secondly that the 10 working day period proposed by the AMWU for the conduct of the ballot was insufficient. The second basis was ultimately not the subject of any elaboration. [3] In light of the Employer’s request to be heard, and having regard to the requirement in section 441 of the Act, I listed the matter for a hearing via video conference on the afternoon of 21 May 2026. In that communication, I invited the Respondent to file material in support of their position by midday on that day. The parties and the protected action ballot agent specified by the AMWU were informed that the Applicant would be given an opportunity to present evidence in chief and the protected action ballot agent would have a right to be heard in light of one of the grounds of opposition, being that the 10 working day period preferred by the AMWU was insufficient. The protected action ballot agent did not participate in the hearing. Owing to the requirement to finalise this matter promptly, I utilised a digital audio recording of the hearing in the preparation of this decision rather than await a formal transcript. The evidence of the parties [4] The Application was supported by a declaration of Ms Simmons, an Industrial Officer of the AMWU. By that declaration1 Ms Simmons attested inter alia that the Employer had [2026] FWC 1869 DECISION -- 1 of 12 -- [2026] FWC 1869 2 agreed to bargain on 28 August 2025 and that a Notice of Employee Representational Rights had been issued by the Employer on 15 August 2025. Further, the declaration identified that Ms Simmons had been informed that there had been 11 bargaining meetings, the AMWU had served a log of claims on 3 September 2025 and had been negotiating with the employer. Ms Simmons’ position was that the AMWU had been, and is, genuinely trying to reach agreement but that the parties were still apart on a number of key issues. The AMWU also relied on a Statement of Mr McGennisken2, an Organiser involved in bargaining for the AMWU. It is convenient to deal with his evidence by way of contrast below. [5] The Employer relied on a witness statement of Mr Sorto3, its general manager. In that Statement, Mr Sorto confirmed that the Notice of Employee Representational Rights and the AMWU’s log of claims had been provided at the times Ms Simmons had attested to. Mr Sorto’s Statement annexed the AMWU log of claims, in the context of an account that asserted that after the AMWU sought via that log of claims that there be two separate agreements (one for Construction work and another Maintenance work), the Employer agreed and bargaining thereafter proceeded on the basis that there were to be two agreements rather than one. Mr McGennisken agreed that the bargaining proceeded from that point on the basis of there being two agreements rather than one and that, whilst it was the AMWU’s preference to deal with the Construction Agreement first, they were amenable to dealing with the Maintenance Agreement first. [6] Mr Sorto’s evidence was that five meetings occurred over the period between 14 November 2025 and 2 February 2026 related to the proposed Maintenance Agreement. He said he was informed that, during the final meeting in that period, two representatives of the AMWU, Mr McGennisken and Mr Pantalleresco “…adopted the position that bargaining for the Maintenance Agreement could not proceed further until the Applicant received feedback regarding the Applicant’s pattern construction Agreement”. Mr Sorto did not give evidence that he personally attended that meeting, however he did annex to his statement a document that was described as minutes of that meeting. Those minutes were somewhat nuanced, in that the position recorded there was “AMWU noted that until some feedback on the Construction position is received, the Maintenance items cannot proceed much further than this point”. Mr McGennisken disputes this characterisation, and says that he sought feedback on the proposed Construction Agreement in a timely manner and indicated a willingness to “keep going” with the Maintenance Agreement. Nonetheless, there is nothing in the evidence of either party to suggest that the Maintenance Agreement was discussed at all after 2 February 2026. [7] Mr Sorto gave evidence in his statement as to further meetings. He states that at a meeting on 20 February 2026, the employer identified and explained a number of proposed changes to what he described as the AMWU’s “proposed pattern construction agreement”. In oral evidence, Mr Sorto explained the bargaining was proceeding on the basis of the Employer responding to the AMWU’s position in that agreement and seeking particular departures from it. Mr McGennisken said that the discussion was led for the Employer by Ms Hay (Operations Manager) and was “a good faith discussion on the company’s position”. Mr Sorto also says that, on 27 March 2026, the employer’s preferred construction agreement was tabled and discussed, and that Mr McGennisken did not agree to make any changes to the pattern agreement and that in response to “most” changes proposed he said the changes were rejected. Mr McGennisken’s evidence was that an impasse was reached on particular items relating to drug and alcohol procedures, and he disagrees with the proposition that the AMWU did not -- 2 of 12 -- [2026] FWC 1869 3 agree to any changes put forward by the Employer. Rather, Mr McGennisken’s says that the AMWU had “agreed to most proposed changes in the meetings of 20 February and 27 March”. Mr Sorto’s accounts of these two meetings are said be based upon information provided to him. [8] Both Mr McGennisken and Mr Sorto gave evidence about two bargaining meetings on 17 and 21 April 2026. Mr Sorto did attend those two meetings personally and gave direct evidence in his statement about the meetings. Mr McGennisken’s oral evidence was that, prior to the meetings he thought “we were pretty close to being able to put together a final agreement and that’s when Jose [Mr Sorto] stepped in”. Mr McGennisken annexed a document dated 17 April to his statement, and gave evidence that this was a document prepared by the Employer. It contained a list of 41 items in table form with columns that recorded various comments in relation to them, with the final (right most) column being “Meeting 17-04-26”. The heading of the document contained the phrase “Nothing is agreed until everything is agreed”. I understood Mr McGennisken’s evidence to be that this document was not a complete record of the progress of bargaining in relation to the construction agreement. Rather, Mr McGennisken was of the view that the items on that list had been worked though at previous meetings and some had previously been clarified or agreed to. He gave an example of an issue concerning travelling allowance in relation to which he said further positions had been communicated but were not reflected on that document. Mr McGennisken said that he did keep his own notes relating to the bargaining, but did not provide them as part of his evidence and said he did not have them with him at the time of giving evidence. Essentially, in Mr McGennisken’s view, the document dated 17 April did not reflect everything that had been agreed or discussed prior to that point and the document effectively put the negotiations “right back at the start again”. Nonetheless, Mr McGennisken said that the bargaining parties went through the items again at the 17 April meeting and that Mr Sorto requested a further meeting in short order. Mr Sorto accepted that the 17 April document was not the “full list of departures” and that there was a “previous list that would have been tabled that we considered on”. Nonetheless, Mr Sorto explained that it had been reported to him by Ms Hay (who had attended prior meetings) that there was no agreement on any items, only rejections of the Employer’s positions and that she sought his assistance to “intervene and try and push the process along”. [9] As to the first of the April meetings, it was said by Mr Sorto that a number of the amendments proposed by the Employer to the pattern construction agreement were discussed and that whilst Mr McGennisken did not indicate agreement with any of them, the Employer agreed to take a few items away for further consideration or to draft some amendments. As to the second April meeting, Mr Sorto said that at its conclusion he was left with the impression that the Applicant was not prepared to entertain any departures from the proposed pattern construction agreement and was content for the employer to put its proposed construction agreement to a vote, but the AMWU would not endorse it. During his oral evidence, Mr Sorto was provided with an opportunity to comment on the proposition that during the meeting on 21 April, he alluded to the fact that he was going to put the Construction Agreement “out to the troops” regardless of whatever was discussed in that meeting. He did not contradict it. Mr Sorto annexed an e-mail of the same day in which he described what occurred at that meeting. This e-mail reflects his characterisation in the statement, but also reveals that there had been in his view at least some progress at an earlier stage of negotiation: -- 3 of 12 -- [2026] FWC 1869 4 I highlighted the obvious “we have discussed several changes that both parties agreed in pricniple (sic) needed changing (for example – long travel, LAFHA) to which after going back to head office you’ve done a backflip and said no change” The e-mail expressed some surprise and disappointment that the AMWU had changed its position to being one of “take it or leave it”. Mr Sorto said that no further bargaining meetings have been scheduled, nor has he been contacted by the AMWU. [10] Mr McGennisken’s recollection of the 21 April meeting was that it was short and that Mr Sorto expressed the view that he had to get in a car and go to the airport. Mr McGennisken said he told Mr Sorto that he couldn’t go any further if that was the case, and he took the view that Mr Sorto didn’t want to negotiate any further. Mr McGennisken agreed he said words to the effect that he was content for the employer to put its proposed construction agreement to a vote, but the AMWU would not endorse it. In his oral evidence, Mr McGennisken said that he agreed with a proposition put by Mr Sorto that Mr Sorto could put an agreement out to a vote, but that he thought the vote would not get up. [11] Whilst there is no evidence of any contact between Mr McGennisken and Mr Sorto after the meeting on 21 April, Mr McGennisken provided a copy of a text message he sent to Ms Hay on 6 May, seeking an “ETA for the EBA being ready to have a look at” and asking if she would want to have another meeting. In response, Ms Hay requested that Mr McGennisken direct his inquiry to Mr Sorto. Applicable principles [12] 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. -- 4 of 12 -- [2026] FWC 1869 5 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. [13] 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 -- 5 of 12 -- [2026] FWC 1869 6 (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. [14] Although there are other statutory requirements for a PABO to be issued, they are not in issue in this matter. Indeed, many of the matters raised in the provisions above were also not in dispute. [15] The AMWU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. The substantive requirement or merit test 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. -- 6 of 12 -- [2026] FWC 1869 7 [16] 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.4 This includes, as relevant to this matter: • 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.5 • 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.6 The Commission should have regard to all of the relevant facts and circumstances of the particular case.7 • 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.8 • 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.9 [17] 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.10 Matters in issue [18] In its outline of submissions, the Employer points out that a PABO must relate to a proposed enterprise agreement, that the application before the Commission does not identify any such proposed enterprise agreement, and that the AMWU and the Respondent have agreed to bargain for two enterprise agreements. [19] It is not controversial that a PABO can only relate to one proposed enterprise agreement. I accept that it was not sufficiently clear on the face of the materials initially filed by the Applicant which of the two proposed enterprise agreements – the Construction Agreement or the Maintenance Agreement – the application related to. Whilst it is clear that the scope of an -- 7 of 12 -- [2026] FWC 1869 8 agreement may be the subject of bargaining and that bargaining can be taken to have commenced even where scope is in issue,11 in this case scope is not in issue. All that is required is that there is an agreement that the bargaining representative applying for the order is proposing, and that might well be an agreement proposed by the employer.12 It is clear from the materials filed in support and opposition to the application that the proposed agreement in contention in this matter is the agreement they have both referred to as the Construction Agreement. The AMWU was entitled to bring the application, and a valid application has been made under s. 437 of the Act. [20] Whilst the Employer’s written submissions advance a proposition that the AMWU has been engaging in pattern bargaining, there is no evidentiary foundation for an essential ingredient in pattern bargaining as defined in s.412 of the Act, being that there are “two or more employers” that the AMWU is engaging in the alleged pattern bargaining with. In any event, there is no basis for an implication that a bargaining representative engaged in pattern bargaining as defined in s.412 is, for that reason alone, not genuinely trying to reach agreement. Nor is there any requirement, in reaching a state of satisfaction as to whether an applicant for a PABO is genuinely trying to reach agreement, for the Commission to satisfy itself that the applicant is not pattern bargaining.13 In closing submissions, the Employer clarified that the conduct that might amount to pattern bargaining, in terms of holding to a position and having no preparedness to entertain anything else, was the conduct that signified that the AMWU was not genuinely trying to reach agreement. [21] In my view, the evidence discloses a significant mismatch between how the parties considered the bargaining in relation to the Construction Agreement was progressing. What is significant is that both parties considered the other party had unhelpfully shifted its position in April to undo what little progress had been made toward narrowing the issues in dispute: The AMWU considered there was a regression by Mr Sorto on the 17 April meeting, and Mr Sorto considered there had been a regression by the AMWU on the 21 April meeting. I don’t accept on the evidence that the AMWU was not genuinely trying to reach agreement. Had the AMWU resolutely been of the view that their proposed construction agreement was the only option and that it was wholly unprepared to consider any alternatives to this, the position could conceivably be different. But the evidence points to the AMWU considering the alternatives advanced by the employer and considering “whether they were more beneficial to the employees than what we were proposing”. Mr McGennisken readily admitted that the AMWU members wanted to achieve the Construction Agreement it had proposed and that he saw it as his role to “fight as hard as I can for it”. But neither that, or even hard bargaining to that end, precludes a conclusion that the AMWU was genuinely trying to reach agreement.14 [22] I don’t think that either of Mr McGennisken or Mr Sorto could be considered unreliable witnesses – they were clearly doing the best they could to recall the events of recent months at short notice under considerable time pressure and without the benefit of having all relevant information at their fingertips to refresh their respective memories. Essentially, the negotiations reached an impasse after both parties considered the other had set the negotiations backwards. This is unexceptional. A bargaining representative can be genuinely trying to reach agreement notwithstanding that it is advancing a position that it knows will not be warmly received, or renews a previously abandoned position – there is no requirement for continual movement in the same direction.15 I am satisfied that the AMWU has been genuinely trying to reach agreement in respect of the Construction Agreement. -- 8 of 12 -- [2026] FWC 1869 9 [23] But the assessment I am required to make also involves examining, in a temporal sense, whether the AMWU is genuinely trying to reach agreement. Notwithstanding the impasse that was reached at the 21 April meeting, Mr McGennisken on 6 May enquired of Ms Hay when the Agreement the Employer was going to propose would be “ready to have a look at”, and asked if there would be a further a meeting. As noted, the response was to direct Mr McGennisken to Mr Sorto. Mr Sorto’s uncontradicted evidence is that he has not heard from Mr McGennisken since 21 April. Nonetheless, it is clear enough that Mr McGennisken’s communication to Ms Hay indicated a willingness to have another meeting. [24] I do not consider the lack of evidence of any activity by the AMWU since its request of 6 May to compel, in the circumstances, a conclusion that it is not genuinely trying to reach agreement. The AMWU had a clear understanding that the next step in bargaining was the circulation of an agreement by the employer. That the AMWU is content to await what developments ensue as a result of that is not emblematic of it not genuinely trying to reach agreement. It merely reflects the futility of attempting to progress negotiations until that process flagged by the Employer has run its course. That is so even if the AMWU’s intended course of action is to coordinate a “No campaign” once that agreement does become available. [25] In closing argument, the Employer sought to advance a proposition that the AMWU had not met the good faith bargaining requirements, and that not meeting those requirements was relevant to determining whether it was genuinely trying to reach agreement. The submission was advanced in reliance on the decision of Commissioner Cloghan in MUA v. Tidewater Marine Australia16. The Employer did not identify which of the good faith bargaining requirements had not been met by the AMWU. It was not suggested that the good faith bargaining requirements or the requirement to genuinely try to reach agreement necessitated a concession, but rather that the good faith bargaining requirements compelled the parties to approach negotiations with an open mind as to ultimately reaching an agreement. It was said that because the AMWU commenced and concluded negotiations on the basis that it wanted its Construction Agreement adopted, it did not have that open mind. In my view, MUA v. Tidewater accepts that non-compliance with the good faith bargaining requirements can be relevant, but proceeds on the basis that an assessment of whether a party is genuinely trying to reach agreement looks to the totality of the bargaining representative’s conduct. To attribute to the AMWU the same position at the start of the process and the current point in the process leaves out what has occurred in between, which I have discussed in paragraphs [21]-[22] above. It should also be remembered that the good faith bargaining requirements are enforced through bargaining orders, the provisions for which envisage targeted, remedial interventions for specific identified failures. The assessment in that context need not be as holistic as that which is required in this case. I am not persuaded that the AMWU has failed to comply with the good faith bargaining requirements but I am satisfied that it has been, and is, genuinely trying to reach agreement with the Employer. [26] For the purposes of s.443(3)(c) of the Act, the Commission must determine the date by which voting is to close. This also establishes the ballot period for the purpose of s.448A(2) of the Act. As noted at paragraph [2] above, the suggestion that the 10 working day period for the conduct of the ballot was not practicable was not further developed. The oral submissions on behalf of the Employer were that the issue was raised “for completeness” prior to the involvement of legal representation, on the basis that not all the relevant employees were in -- 9 of 12 -- [2026] FWC 1869 10 metropolitan Melbourne. As noted, the protected action ballot agent, Fair Vote Servies Pty Ltd, chose not to participate in the proceedings. The AMWU’s submission was that the 10 day period was “pretty standard for us” and that the ballot agent, who it uses “all the time” utilises electronic voting and they have never had a problem with them. The draft order provided with the application indicated that the voting method was to be electronic via a secure website with voting information to be distributed via SMS and e-mail. [27] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd17 (CEPU v Nilsen), considered the approach to be adopted by the Commission in establishing the ballot period. Amongst other matters, the Full Bench confirmed: • The Commission must determine the ballot period in each case as a matter of discretion and is not bound to grant the date proposed in the application and draft order, or that proposed by the employer.18 • Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. This focuses attention on the process of conducting the ballot. “Expeditiously” connotes quickly and efficiently and the notion of “practicable” means that something can be done or put into practice successfully. This provision does not require the Commission to ensure that the ballot closes as quickly as possible. 19 • There are a range of case specific considerations, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and the ballot process itself, that are or maybe relevant to the exercise of the discretion to set the ballot period. Within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot period is also a relevant statutory context and consideration in setting that period. This is reinforced by the potential consequences of non-attendance by a bargaining representative at such a conference, the legislative purpose of s.448A within the scheme of the Act, and the practical consequences of arranging and conducting the conference at which all bargaining representatives can attend and fully participate and where the Commission can deploy the range of dispute resolution techniques contemplated by the Act.20 [28] Having regard to all of the circumstances of this matter, including the positions of the parties, the voting method, the workforce and the various other considerations outlined in CEPU v Nilsen, I have determined that for the purposes of s.443(3)(c) of the Act, the date by which the voting in the protected action ballot in this matter is to close is 5 June 2026. This is the equivalent of 10 working days after the date of the Order. Conclusion [29] On the basis of the material before me, including the declaration of Chloe Simmons and the written and oral evidence of Mr McGennisken and Mr Sorto, I am satisfied that AMWU has been, and is, genuinely trying to reach agreement with Acciona, I am satisfied that there is -- 10 of 12 -- [2026] FWC 1869 11 a notification time in relation to the proposed Construction agreement to which those efforts have been directed., and that all of the requirements in s.443(1) of the Act have been met. [30] The ballot is to be conducted by Fair Vote Services Pty Ltd. Fair Vote Services Pty Ltd has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot. [31] 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 5 June 2026.21 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [32] An Order has been separately issued in PR810278. [33] I will imminently issue an Order requiring the attendance of all bargaining representatives in the proposed Construction enterprise agreement at the conference, together with Directions to ensure that the parties attend the conference ready to conduct meaningful negotiations. COMMISSIONER Appearances: Ms C. Simmon, for the Applicant. Mr D. Fleeton, for the Respondent. Hearing details: 21 May. 2026. Printed by authority of the Commonwealth Government Printer <PR810277> 1 Exhibit A1. 2 Exhibit A2. 3 Exhibit R1. -- 11 of 12 -- [2026] FWC 1869 12 4 [2015] FWCFB 210. 5 Ibid at [18]. 6 Ibid at [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia [2009] FWAFB 368 (Total Marine). 7 Ibid at [57]. 8 Ibid at [35] - but qualifying a further statement made in Total Marine. 9 Ibid at [54]. 10 J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 at [89] and Kuiper at [26] to [30]. 11 Stuartholme School v. The Corporation of the Roman Catholic Archdiocese of Brisbane [2010] FWAFB 1714. 12 AMWU, CEPU & AWU v. Skilled Offshore [2015] FWC 6727; Skilled Offshore v. AMWU, CEPU & AWU [2015] FWCFB 7399; MSS Security v. LHMU [2010] FWAFB 6519. 13 John Holland v. AMWU [2010] FWAFB 526 at [39]-[40]. 14 NUW v. ACCO Australia [2009] FWA 226. 15 LHMU-WA v. CSBP [2007] AIRC 112 at [37]-[38]. 16 [2014] FWC 1733 17 [2023] FWCFB 134. 18 CEPU v Nilsen at [53], [58] and [79]. 19 Ibid at [58]. 20 Ibid at [66] to [79]. 21 This is, in effect, 10 working days from the making of the Order and was the date sought in the application. -- 12 of 12 --