"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Viva Energy Refining Pty Ltd [2025] FWC 3229

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 Viva Energy Refining Pty Ltd (B2025/1627) DEPUTY PRESIDENT WRIGHT SYDNEY, 28 OCTOBER 2025 Proposed protected action ballot of employees of Viva Energy Refining 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 in relation to certain employees of Viva Energy Refining Pty Ltd (Viva Energy or Employer). [2] I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.1 [3] On 27 October 2025, the Commission was advised that the Employer, in effect, did not object to the Application as amended. The Applicant had sought leave under s.586 to amend the name of the Employer in the application, having initially lodged an application that identified a different employer entity. [4] In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing. [5] On the basis of the material before me, including the declaration of Stephen Fodrocy, 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 Viva Energy, 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. [6] 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. [2025] FWC 3229 DECISION -- 1 of 2 -- [2025] FWC 3229 2 [7] I observe that the application and draft order provided in this matter contained certain observations about the AMWU’s preference in relation to the updating and finalisation of the list of voters. 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 issued the Order using the Commission’s standard approach, noting that this is also consistent with the related matter and the role to be played by the Act and associated regulations on 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. [8] 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 12 November 2025.2 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [9] An Order has been separately issued in PR793074. [10] 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. 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 Printed by authority of the Commonwealth Government Printer <PR793075> 1 B2025/1626 2 This is, in effect, 10 working days from the making of the Order and was the period sought in the application. -- 2 of 2 --