"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Applus Pty Ltd [2026] FWC 2921

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 Applus Pty Ltd (B2026/899) DEPUTY PRESIDENT WRIGHT SYDNEY, 3 AUGUST 2026 Proposed protected action ballot of employees of Applus 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 (FW Act) for a protected action ballot order in relation to certain employees of Applus Pty Ltd (Applus or Employer). [2] On 28 July 2026, the Commission was advised that Applus, did not, in effect, object to the application but sought an extended notice period. [3] In the circumstances, I listed the matter for hearing on 29 July 2026. As the AMWU and the Employer did not file any evidence prior to the hearing, and as it was not possible for me to determine the issues in dispute without evidence about these matters before me, I adjourned the hearing until 30 July 2026 so that evidence could be provided to the Commission by both parties. [4] The Employer filed a witness statement by Mr Damian Tanner, General Manager – Operations dated 29 July 2026. The AMWU filed witness statements dated 30 July 2026 by Mr Tony Hynds, AMWU Site Organiser at Viva Geelong Refinery and Mr Callum Morrison, Maintenance Technician and AMWU Delegate at Viva Geelong Refinery. [5] I have considered the submissions made by the parties and all of the evidence in my determination of this matter and the conclusions I have reached. [6] The ballot questions in the order sought by the AMWU are: In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of: [2026] FWC 2921 DECISION -- 1 of 14 -- [2026] FWC 2921 2 1. An unlimited number of stoppages of work for the duration of 1 hour? Yes [ ] No [ ] 2. An unlimited number of stoppages of work for the duration of 2 hours? Yes [ ] No [ ] 3. An unlimited number of stoppages of work for the duration of 4 hours? Yes [ ] No [ ] 4. An unlimited number of stoppages of work for the duration of 8 hours? Yes [ ] No [ ] 5. An unlimited number of stoppages of work for the duration of 12 hours? Yes [ ] No [ ] 6. An unlimited number of indefinite and / or periodic bans on overtime? Yes [ ] No [ ] 7. An unlimited number of indefinite and / or periodic bans on call backs? Yes [ ] No [ ] [7] Applus has requested that the Commission exercise its discretion pursuant to s.443(5) of the Act to make an order that the written period of notice referred to in s.414(2)(a) of the Act be extended to at least five working days’ notice in relation to all ballot questions. [8] Applus and the AMWU have agreed that the protected action ballot order should provide the following clause in relation to safety and emergency events: Safety and Emergency Events An employee taking the protected action listed above will, during the duration of the notified industrial action, comply with a direction from Applus Pty Ltd to perform work to respond to a serious and imminent threat to safety, or a serious and imminent threat to the structural integrity of plant, or a serious and imminent threat to the environment (a Safety & Emergency Event) in one the following circumstances: (i) where the work must be performed during the period of industrial action, the work cannot be reasonably performed by anyone else at the Viva Energy Refinery in Geelong, Vic (the Refinery) and the Applus Pty Ltd nominated Person In Charge (PIC) at the Refinery or their delegate provides notice in writing to the employee or employees that specifically identified work must be immediately performed to respond to a Safety & Emergency Event. The written notice must contain a brief description of the Safety & Emergency Event and a brief explanation why the work cannot be performed by anyone else at the Refinery; or (ii) where the Safety & Emergency Event necessitates an urgent direction to resume work, the work cannot be reasonably performed by anyone else at the Refinery and the urgency of the situation prevents the issuing of the notice referred to in (i). As soon as reasonably practicable after a direction under this subclause (ii) is made, the PIC or their delegate will provide to the employee or employees directed to respond to the Safety & -- 2 of 14 -- [2026] FWC 2921 3 Emergency Event a written notice containing a brief description of the Safety & Emergency Event and a brief explanation why the work could not be performed by anyone else at the Refinery. NOTE 1: During the duration of the notified industrial action, an employee will only resume work to the extent necessary to avert the serious and imminent threat. NOTE 2: If an external regulator gives an order or direction to Applus Pty Ltd or Viva Energy during a period of industrial action that specifically requires work to be performed during a period or periods of notified industrial action, a notice may be issued under (i) or an urgent direction under (ii). NOTE 3: A notice may be issued under (i) or an urgent direction under (ii) for any unplanned reactive maintenance work to life critical amenities (e.g. air conditioning, water systems, waste systems, life support) that unless performed immediately by an employee or employees engaging in industrial action will create a serious and imminent threat to safety and the work cannot be reasonably performed by anyone else at the Refinery. NOTE 4: “the work cannot be reasonably performed by anyone else at the Refinery” means that there is no person on shift at the Refinery other than the employees currently engaged in protected industrial action that can safely perform the work required to be performed during the protected industrial action. The workload or current tasks assigned to persons who can safely perform the work are not relevant to this consideration unless the preassigned tasks are of a more urgent nature than averting a serious and imminent threat to safety. Any notice provided in accordance with Note 2 and/or 3 must provide a written explanation to The Australian Manufacturing Workers’ Union as to why the work must be performed immediately, and why workers engaging in industrial action must perform that work. Should either Applus Pty Ltd or The Australian Manufacturing Workers’ Union believe that the other party is not acting consistently with the above exclusions, either party may apply to the Fair Work Commission for assistance in resolving the issue. [9] The AMWU opposes Applus’ request for an extended notice period and submits that the Safety and Emergency Events clause is sufficient to address the concerns of Applus about its capacity to perform safety critical work during periods of industrial action. Factual background [10] Most of the factual background may be derived from the witness statement of Mr Damian Tanner filed by Applus. Mr Tanner is the General Manager – Operations of Applus. Mr Tanner’s role entails management of Applus’ operational workforce across Australia, as well as client contract management. [11] Applus provides testing, inspection and certification services in support of capital assets and infrastructure operated by its clients, principally in the industries of oil and gas, construction and mining. [12] The employees to be balloted perform non-destructive testing (NDT) services for Viva Energy (Viva) at the oil refinery located at 90 Refinery Road, Corio VIC 3214 (the refinery). [13] The oil and gas industry is a high-risk environment, and the refinery is classified as a ‘major hazard facility’. -- 3 of 14 -- [2026] FWC 2921 4 [14] Applus provides services that assist Viva to meet its safety and regulatory obligations by assessing asset integrity and providing assurance that the asset is safe to operate. These services include providing inspection and testing services on pressure-retaining and critical infrastructure assets to verify material integrity and identify defects that could lead to loss of containment, equipment failure or reduced operational reliability. [15] Mr Morrison explained that NDT Technician duties at the refinery vary daily. Typically, NDT staff are responsible for maintenance duties including weld testing, pipe inspections, vessel and column inspection amongst other maintenance tasks. Mr Morrison said that there is an emergency/critical maintenance process in place on site which involves inspectors asking NDT employees to undertake emergency maintenance if an urgent problem arises. The onsite supervisor and inspectors will then implement a triage process to order jobs from most to least important. The jobs are then assigned to technicians to fix the critical or emergency issue. [16] Viva relies on Applus’ services to ensure its facilities are safe to operate and that Viva is meeting its ongoing statutory and regulatory requirements with respect to safety. This includes when the various regulators issue a direction to address a fault or defect at short notice. [17] Applus has provided these services at the refinery since April 2010 when the refinery was operated by Shell. Since August 2014, Applus has provided these services at the refinery to Viva. Until recently, Applus was the exclusive provider of NDT services at the refinery. Applus remains the majority service provider. [18] The services provided by Applus to Viva are highly specialised and integral to the safe operation of the refinery. [19] The refinery is one of two refineries remaining in Australia. It facilitates and supplies over 50 percent of Victoria’s and 10 percent of Australia’s fuel. [20] The refinery manufactures petrol, diesel, LPG, jet fuel, avgas, bitumen, specialty solvents and is Australia’s only manufacturer of hydrocarbon solvents, marine fuel oil, low aromatic fuel, avgas, bitumen and high-quality plastic feedstock used to create fuel packing, medical equipment and polymer banknotes. [21] In April 2026, there was a fire at the ‘Mogas plant’ at the refinery, which caused significant damage to key processing infrastructure. This has two major impacts: a. Damage assessment and future plans development are intensive and ongoing. Applus is heavily involved in assessing the damage and determining the inspection and testing requirements necessary to support repair planning and execution. b. There has been continued pressure on fuel imports due to the ongoing conflict in the Middle East. This has placed additional pressure on Australia’s fuel supply system and increased national reliance on domestic fuel. [22] If protected industrial action as set out in the draft order were taken, Applus may seek to mobilise contingent workforce from other parts of the business. Mr Tanner explained that this would prove a difficult task due to the following practical realities: -- 4 of 14 -- [2026] FWC 2921 5 a. Only 6.24% of Applus’ permanent workforce are employed in Victoria. Further, there are only 3 casual employees in Victoria. As such, air travel would be required to mobilise contingent employees from interstate locations. b. Much of Applus’ workforce are engaged in remote or offshore locations. These employees would need to be removed from their current locations back to a location from which they could then mobilise to the refinery. c. Some of Applus’ employees work at locations not accessible by commercial air travel. Chartered flights via fixed-wing or helicopter travel are commonplace and Applus’ ability to utilise these depend heavily upon scheduling and availability controlled by a client. d. The refinery is classified as a regional location, adding to travel time. e. The refinery has localised policies and inductions required to be completed prior to mobilisation. f. NDT work is highly specialised, and a knowledge of the location is required for safe and effective service delivery. This adjustment factor for contingent employees to familiarise themselves with the refinery in order to provide safe discharge of duties will take a period of time. g. NDT Technicians undertake external training and can hold qualifications and certifications in multiple different NDT methods. Given this, each employee has a unique configuration of skills aligned to different scopes of work. It is not a situation where a contingent employee could readily step into another employee’s place. [23] Mr Tanner said that additional time granted via an extended notice period will allow Applus to better contend with, and plan for the practical realities outlined above. He also said that mobilisation activities ordinarily exceed seven days and the added complexity of demobilisation from an alternative worksite in the first instance means that the mobilisation of contingent labour will take in excess of seven days. [24] Mr Tanner also said that additional time granted via an extended notice period will allow Applus to engage with Viva on the need to mitigate the impact of industrial action whilst meeting the safety and regulatory requirements. This would allow Applus and Viva to: a. effectively plan and communicate the potential high priority statutory work to be performed within the period of industrial action; and b. realign resources to take steps to reschedule any other critical work at the refinery, which could increase the risk of loss, of containment or other safety hazards if work scheduled to be performed is delayed and carried out at a later date. Submissions Applus [25] Applus submits that the service Applus provides to Viva is integral to the safe operation of the refinery. Further, that the refinery remains responsible for the provision of 50% of Victoria’s fuel needs and 10% of national fuel supply. -- 5 of 14 -- [2026] FWC 2921 6 [26] Applus submits that the same exceptional circumstances exist as those identified in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v UGL Operations and Maintenance Pty Limited (UGL),1 and this supports a finding that exceptional circumstances exist in this current matter. [27] Applus recognises that despite finding that exceptional circumstances existed in UGL, Commissioner Redford found that there was insufficient justification to exercise the Commission’s power to extend the notice period. This was due to insufficient evidence or submission beyond ordinary contingency planning. [28] Applus accepts that the operating levels at the refinery have increased since UGL. However, there remain sections of the facility that are inoperative following the fire that the facility experienced earlier this year. Applus submits that given the safety critical nature of the services it provides to Viva, being testing, inspection and certification of all manner of assets across the full facility within explicit technical parameters, that this current matter can be distinguished from UGL in relation to the justification for extension. [29] Applus submits that the fire that occurred on site in April 202 (due to failure of a valve which would ordinarily be tested and inspected by Applus) demonstrates Applus’ integral importance to the safe operation of the facility with minimal capacity to implement contingency measures referred to in UGL. As such, the current matter can be further distinguished from UGL in relation to the justification for extension. [30] Applus submits that in UGL, there was consideration of Viva being able to supply its own employees as a form of contingency. This is not an available option in this current matter and this impinges on its and Viva’s ability to take appropriate defensive action. [31] Applus submits that it is imperative that appropriate mitigations be enacted, and an extended notice period facilitates a more fulsome opportunity to do so. [32] Applus further submits that extending the notice period would not materially diminish the effectiveness of employee bargaining power. Employees ordinarily work a compressed roster of Tuesday to Friday, comprising 8.75-hour shifts. The compressed nature of the roster limits opportunities for replacement or contingent labour to be engaged within rostered working periods. Accordingly, the practical effect of an additional notice period on the effectiveness of protected industrial action is limited. [33] Applus submits that the matters identified above are not merely the ordinary commercial consequences of industrial action contemplated by the authorities. Rather, they arise from the unique safety-critical nature of the work performed by Applus, the operational circumstances of the refinery, the recent fire event, and the limited availability of effective contingency measures. AMWU [34] The AMWU submitted that that the nature of Applus’ operations are not sufficient to give rise to an extension of the notice period. -- 6 of 14 -- [2026] FWC 2921 7 [35] The AMWU referred to the decision in Australian Workers’ Union v Applus Pty Ltd (AWU v Applus),2 which also involved Applus. The AMWU submitted that in this case, the Commission granted an extension for a seven day notice period due to a perfect storm of exceptional circumstances, which included the COVID-19 pandemic, the remote location of the facility offshore in Western Australia, that around 50% of Applus employees were based on the East Coast and that these employees were subject to border closures. [36] The AMWU also submitted that the workplace in AWU v Applus was remote and offshore, which is vastly different to the refinery, being an onshore facility located in the second largest city in Victorian. Consideration [37] Section 414 of the FW Act deals with the notice requirements for industrial action. It provides: 414 Notice requirements for industrial action Notice requirements—employee claim action (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. (2) The period of notice must be at least: (a) subject to paragraph (b): (i) if subparagraph (ii) of this paragraph does not apply—3 working days; or (ii) if the proposed enterprise agreement is a multi-enterprise agreement— 120 hours; or (b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice. Note: For a proposed cooperative workplace agreement, see subsection 413(2). Notice of employee claim action not to be given until ballot results declared (3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared. Notice requirements—employee response action (4) Before a person engages in employee response 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. Notice requirements—employer response action -- 7 of 14 -- [2026] FWC 2921 8 (5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must: (a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and (b) take all reasonable steps to notify the employees who will be covered by the agreement of the action. Notice requirements—content (6) A notice given under this section must specify the nature of the action and the day on which it will start. [38] Section 443 of the FW Act deals with the circumstances in which the Commission must make a protected action ballot order. It 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. (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. [39] Sections 414(2) and 443(5) work in conjunction with each other in relation to the requirement that before a person engages in employee claim action for a proposed enterprise agreement, an employee bargaining representative must give written notice of the action to the -- 8 of 14 -- [2026] FWC 2921 9 employer. The required notice period is three working days (if the proposed enterprise agreement is not a multi-enterprise agreement). The required notice period may be extended up to a maximum period of seven working days provided the Commission 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 being longer than three working days. [40] The principles to be applied in relation to an extension of the notice period for engagement in employee claim action are set out in the Full Bench’s decision in National Tertiary Education Industry Union v Charles Darwin University.3 [41] In relation to the meaning of the expression ‘exceptional circumstances’, the Full Bench referred to a decision of the Australian Industrial Relations Commission4 relating to the equivalent provision in the Workplace Relations Act 1996 which relevantly stated: [10] … In summary, the expression ‘exceptional circumstances’ requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.5 [42] The Full Bench then set out a three-step decision-making process to determine whether there should be an extension to the notice period pursuant to s.443(5) of the FW Act as follows: (a) the Commission identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are ‘exceptional circumstances’. (b) the Commission consider whether the circumstances are circumstances justifying a longer notice period. The identified exceptional circumstances must show or prove that it is reasonable or necessary in the circumstances to warrant a longer period of written notice. (c) if the Commission is satisfied there are exceptional circumstances justifying an extension, they must consider whether to exercise the discretion and, the additional notice that should be given in the circumstances.6 Are there exceptional circumstances? [43] Mr Tanner’s evidence in relation to exceptional circumstances was that the NDT services provided by Applus to Viva are highly specialised and integral to the safe operation of -- 9 of 14 -- [2026] FWC 2921 10 the refinery, that the refinery facilitates and supplies over 50 percent of Victoria’s and 10 percent of Australia’s fuel and that the ongoing conflict the Middle East has increased national reliance on domestic fuel. Mr Tanner also referred to a fire at the ‘Mogas plant’ at the refinery, which caused significant damage to key processing infrastructure and that Applus is heavily involved in assessing the damage and determining the inspection and testing requirements necessary to support repair planning and execution. [44] Applus relied upon the decision of the Commission in AWU v Applus.7 In this decision, the Commission found that there were exceptional circumstances justifying a seven day notice period. However, this decision and the other decisions that it referred to was in relation to an off-shore workplace, not the hydro-carbon industry generally. Further, in AWU v Applus, Applus’ ability to mobilise additional labour was said to be hampered by ongoing skill shortages, international and intertstate border restrictions due to COVID-19 and mandatory induction requirements imposed by both Applus and its client.8 International and intertstate border restrictions due to COVID-19 is not a feature of the current application and there is no evidence before me about whether there are skills shortages in relation to the NDT work. [45] More recently, in UGL, Commission Redford made the following findings in relation to the same workplace (being the refinery), albeit in the context of a different employer and different type of work compared to the application before me: [33] I am nevertheless prepared to accept that the nature of the global fuel crisis means that the circumstances currently existing at one of Australia’s two oil refineries are undoubtedly out of the ordinary. This is especially so when at the Geelong Refinery, repairs are still underway after a recent fire which has reduced its output. [34] The industrial action contemplated by the Order I am asked to make includes a critical maintenance crew for the Refinery potentially engaging in, among other things, an unlimited number of stoppages of work for various durations. The cessation of work by a key maintenance crew at a Refinery which is responsible for the provision of 50% of Victoria’s fuel needs and 10% of national fuel supply, during a global fuel crisis, when it is already operating at reduced capacity, is in my view, an exceptional circumstance.9 [46] In the application before me, employees are also being asked to vote in relation to an unlimited number of stoppages of work for various durations. These employees are responsible for providing highly specialised services to Vivia to ensure its facilities are safe to operate and that Viva is meeting its ongoing statutory and regulatory requirements with respect to safety. In these circumstances, and having regard to Commissioner Redford’s findings in UGL, I find that the cessation of work by employees undertaking NDT services at the refinery, noting it is responsible for the provision of 50% of Victoria’s fuel needs and 10% of national fuel supply, during a global fuel crisis, when it is already operating at reduced capacity, is an exceptional circumstance. Do the circumstances justify a longer notice period? [47] The matters which Applus relied upon in submitting that the exceptional circumstances justified a longer notice period were vague and lacking in detail. Mr Tanner gave evidence that Applus ‘may’ seek to mobilise a contingent workforce from other parts of the business. However, there was no evidence that Applus had undertaken any of the basic planning that -- 10 of 14 -- [2026] FWC 2921 11 would be expected in circumstances where industrial action may be commencing in just a few weeks time. This planning would at a minimum involve an assessment of which employees in other locations may be able to be relieved of their duties to work at the refinery, which of these employees are willing to undertake such work, and the locations that these employees would be travelling from. [48] In relation to Mr Tanner’s evidence that only 6.24% of Applus’ permanent workforce are employed in Victoria, necessitating air travel to mobilise contingent employees from interstate locations, I note that apart from vague references during Ms Tanner’s oral evidence to Queensland, Western Australia and Darwin there was no evidence about the location of such employees so there was no ability for the Commission to assess how long it would take employees to travel to the refinery. [49] In relation to Mr Tanner’s evidence that much of Applus’ workforce are engaged in remote or offshore locations and/or at locations not accessible by commercial air travel there was no evidence before the Commission as to the number of employees so engaged and which of these employees would be likely to work as contingent labour in the refinery. [50] In relation to Mr Tanner’s evidence that the refinery is classified as a regional location that adds to travel time, I note that the address of the refinery is before the Commission and that it is within reasonable travel distance from both Tullamarine and Avalon airports. [51] In relation to Mr Tanner’s evidence that the refinery has localised policies and inductions required to be completed prior to mobilisation, I note during the hearing, Mr Tanner said that the timeframe associated with getting the personnel across to site with the associated equipment in order to do the service that they are performing can take anywhere from five to seven days. [52] In relation to Mr Tanner’s evidence that adjustment factor for contingent employees to familiarise themselves with the refinery in order to provide safe discharge of duties will take a period of time, there was no evidence before the Commission as to how much time would be needed. [53] Tellingly, Mr Tanner’s evidence that a contingent employee cannot readily step into another employee’s place, because each employee has a unique configuration of skills aligned to different scopes of work, suggests to me that the sourcing of contingent labour from Applus’ own workforce may not be feasible at all. If it is unlikely that Applus will be using its own workforce during the proposed industrial action, any evidence about the practicalities of these employees travelling to the refinery is not relevant to whether an extension of the notice period is justified. [54] The final paragraphs of Mr Tanner’s witness statement deal with the steps Applus will be required to take with Viva to mitigate the impact of industrial action while meeting the safety and regulatory requirements. This will involve Applus and Viva planning and communicating about the potential high priority statutory work to be performed within the period of industrial action and realigning resources to reschedule any other critical work at the refinery. It is clear from this evidence that there is potential for Applus to reduce the services it provides to Viva during the period of industrial action, hence this appears to be a way of managing the reduced -- 11 of 14 -- [2026] FWC 2921 12 availability of employees while not necessarily requiring Applus to use its workforce based in other parts of Australia during the industrial action. [55] Other matters which appear to be relevant to whether the exceptional circumstances justify extending the notice period is the potential availability of local labour hire employees and that there is another contractor on site which performs NDT Services. [56] Mr Tanner gave evidence that until recently, Applus has been the exclusive provider of NDT services at the site for 16 years and remains the majority service provider. I would have been assisted by evidence about what arrangements that Applus has discussed with Viva about the performance of work during periods of industrial action, as it is difficult to accept that there has been no consideration of the other NDT service provider increasing its services during periods of industrial action. [57] Further, Mr Hynds gave evidence that there are two other companies in the Geelong region who have and can supply labour to the refinery for NDT. It is also difficult to accept that Vivia would not have discussed with Applus the possibility of Viva sourcing additional labour through these companies during periods of industrial action. [58] During the hearing, I asked Mr Tanner at the conclusion of his cross-examination what plans Applus had made to deal with the proposed industrial action. [59] Mr Tanner’s responses included the following: …it's still in the planning stages at this point, Deputy President. It's not, it's not a straightforward process in order to get a distinct plan and a lot of people aside, as I mentioned previously, a lot of our personnel are engaged on other contracted scopes. So in order to facilitate those needs, the more time we have available to put that planning in place and freeing personnel up would certainly assist us in that process. [60] Mr Tanner went on to say that it was not the case that no planning had been undertaken by Applus in relation to the proposed industrial action but that the planning undertaken to date was ‘very very high level at this point’. [61] Having regard to all of the evidence before me, there appears to be a range of options which are potentially available to Applus and Viva in relation to managing the proposed industrial action which include Viva engaging labour hire providers and increasing the NDT work of the other service provider, Applus reducing its services and Applus mobilising employees from other locations. Based on Applus’ evidence about the logistical difficulties in mobilising its workforce from other locations, I believe that it is very unlikely that it will utilise this option during the industrial action. Even if Applus was to use this option, there is insufficient evidence before me to establish that an extended notice period is required to facilitate the placement of employees in other locations at the refinery site. Further, there is no evidence to support a finding that the other options available to manage the industrial action require an extended notice period. [62] I am therefore not 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 three working days. -- 12 of 14 -- [2026] FWC 2921 13 Conclusion [63] On the basis of the material before me, including the declaration of Chloe Simmons, 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 Applus, 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. [64] 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. [65] 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 17 August 2026.10 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [66] An Order has been separately issued in PR812803. [67] 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 Appearances: Ms C. Simmons, Industrial Officer for the AMWU Mr T. Fulford, General Manager, HR & IR for the Respondent Hearing details: 2026 29 and 30 July Online Printed by authority of the Commonwealth Government Printer <PR812804> -- 13 of 14 -- [2026] FWC 2921 14 1 [2026] FWC 1829 2 [2020] FWC 6904 3 [2018] FWCFB 4011 4 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848 5 Ibid, [10] 6 [2018] FWCFB 4011, [23]-[25] 7 [2020] FWC 6904 8 Ibid, [34] 9 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v UGL Operations and Maintenance Pty Limited [2026] FWC 1829, [33]-[34] 10 This is, in effect, 10 working days from the making of the Order and was the date sought in the application -- 14 of 14 --