"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v One Rail Australia (NSW) Pty Ltd [2026] FWC 2773

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 One Rail Australia (NSW) Pty Ltd (B2026/867) DEPUTY PRESIDENT HAMPTON ADELAIDE, 23 JULY 2026 Proposed protected action ballot of employees of One Rail Australia (NSW) Pty Ltd – non- AEC ballot 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 One Rail Australia (NSW) Pty Ltd (One Rail or Employer). [2] On 21 July 2026, the Commission was advised that the Employer objected to the application on the basis that there is an inaccurate representation of wage negotiations in the material accompanying the application and that the current enterprise agreement has not reached its nominal expiry and as a result the application is, in effect, premature. The Employer also sought that the ballot closure date be extended. [3] Both parties were given an opportunity to provide further submission and materials. One Rail opted to provide further submissions while the AMWU has relied upon the materials and submissions already provided to the Commission as part of the initial processing of the application. In the circumstances and noting the nature of the objections raised, I have decided to determine the matter on the papers without holding a hearing. [4] The Employer’s position is, in effect, that the application is premature as current agreement has not reached its nominal expiry. The AMWU contends that the application was made 23 days before the current Enterprise Agreement’s nominal expiry date, being 13 August 2026, which is permitted. [5] The primary requirement for the making of a PABO, beyond the making of a valid application, is that the applicant bargaining representative, in this case, the AMWU, has been and is genuinely trying to reach an enterprise agreement with the relevant employer(s). This arises from s.443(1)(b) of the Act and is not in dispute here. [2026] FWC 2773 DECISION -- 1 of 4 -- [2026] FWC 2773 2 [6] 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’ Union1 (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 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.” [7] 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. Further, the Commission does not, when considering a PABO, determine that it is or is not appropriate to take that step. There is no general discretion here and the Commission must apply the statutory requirements discussed above. [8] As confirmed in the authority above, s.438(1) permits an application of this kind provided that it is no earlier than 30 days before the nominal expiry of an existing enterprise agreement. This is the case here. Of course, protected industrial action must not actually be 1 [2024] FWCFB 378. -- 2 of 4 -- [2026] FWC 2773 3 organised or engaged in before the nominal expiry date of an existing agreement given the operation of s 413(6) of the Act. [9] On the basis of the material before me, including the declaration of Nathan Clements, Organiser, 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 One Rail, 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. [10] 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 is authorised to conduct the ballot. [11] 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. The AMWU sought a ballot period of 10 working days. One Rail seeks that this be extended due to what it contended was the practical requirements associated with conducting the ballot and to ensure employees have a reasonable opportunity to participate. [12] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd2 (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.”3 • “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.” 4 • “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 2 [2023] FWCFB 134. 3 CEPU v Nilsen at [53], [58] and [79]. 4 Ibid at [58]. -- 3 of 4 -- [2026] FWC 2773 4 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.”5 [13] The ballot process involved here is an electronic ballot and these can in most cases be conducted well within the sort of period requested in this application. There is nothing before the Commission about the nature of the workplace or the workforce that would indicate that an extended period is required to properly conduct the ballot. I have however, had regard to the context set by the need to conduct the s.448A conference as contemplated in CEPU v Nilsen. [14] 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 7 August 2026. [15] An Order has been separately issued in PR812428. [16] 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 Printed by authority of the Commonwealth Government Printer <PR812429> 5 Ibid at [66] to [79]. -- 4 of 4 --