"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union v Premier Coal Pty Ltd [2026] FWC 3197

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 Premier Coal Pty Ltd (B2026/1030) DEPUTY PRESIDENT HAMPTON ADELAIDE, 21 AUGUST 2026 Proposed protected action ballot of employees of Premier Coal 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 in relation to certain employees of Premier Coal Pty Ltd (Premier Coal or Employer). [2] I note that the Mining and Energy Union (MEU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.1 [3] On 20 August 2026, the Commission was advised that the Employer objected to elements of the application. The objections were in relation to one of the proposed ballot questions, inconsistencies with how the employees to be balloted had been stated, and the stated discretion in the draft order for the relevant Ballot Agent to finalise the list of voters. The AMWU sought to amend its application addressing the employees to be balloted, but opposed any change to the order as sought by the Employer. [4] The parties have each provided submissions on the issued and have indicated that they are content for the Commission to deal with the matter on the papers without holding a hearing. I have now done so. [5] On the basis of the material before me, including the declaration of Darcy Gunning, Industrial 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 Premier Coal, 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. 1 B2026/1039. [2026] FWC 3197 DECISION -- 1 of 4 -- [2026] FWC 3197 2 [6] The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot. [7] 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 4 September 2026.2 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [8] The issues that have arisen here are associated with terms of the proposed order. [9] The proposed order adopts the standard wording often issued by the Commission for the group of employees to be balloted. This defines the group, in part, by those employees who will be covered by the proposed enterprise agreement. In most cases, this scope is understood by the parties who are to supply the relevant employee and member lists to the ballot agent, and this forms the practical scope of the ballot. [10] Premier Coal contends that the group should be defined by reference to classes of employees referred to in the Notice of Employee Representational Rights; being Production Employees or Trade Employees or Apprentices. The Commission understands that the parties are seeking to negotiate an enterprise agreement to replace the Premier Coal Limited Enterprise Agreement 2022. This has now been confirmed by both parties. This is also the scope of the proposed agreement and in my view the terms of the proposed order are sufficiently clear when this context is considered. [11] In relation to the ballot question, there is one question proposed in this matter. Premier Coal contends that because the question includes the notion of ‘separately, concurrently and/or consecutively’, linked to a range of potential length of stoppages, it should be amended so that employees can make a meaningful and informed decision regarding the nature of the industrial action they are being asked to authorise. [12] The relevant requirements of the Act are broadly expressed, that is, the nature of the proposed industrial action must be stated in the ballot question or questions.3 As a Full Bench of the Commission has made clear4 in relation to proposed ballot questions: “[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond 2 This is, in effect, 10 working days from the making of the Order and was the period sought in the application. 3 Sections 437(3)(b) and 443(3)d) of the Act. 4 National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 (NTEU v Curtin University). -- 2 of 4 -- [2026] FWC 3197 3 the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued. We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed. [54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole. It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for. [55] That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant’s intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question.” (Footnotes Omitted) [13] I consider that the proposed ballot question is sufficiently clear in that it states the nature of the proposed action and the employees can meaningfully understand and respond, and indicate whether they agree or disagree with industrial action of that nature. I also observe that the detail of any action within those parameters must be provided later under the scheme of the Act. [14] The issue of ‘discretion’ for the Ballot Agent arises from clause 9.1 which is drafted as follows: -- 3 of 4 -- [2026] FWC 3197 4 “9.1 The Agent is to finalise the list of voters using its discretion in accordance with the Act, Regulations and the other terms of this order.” [15] Premier Coal seeks that the clause be amended to remove reference to the discretion. On occasions, there are judgments that the ballot agent needs to make in finalising the list of voters. Under the proposed clause, any discretion to be exercised is limited by the requirement that it be undertaken in accordance with the Act, Regulations and the terms of this order. The ballot agent is also approved to undertake this role under the Act. Any disputes about the operation of this aspect of the order can be dealt with under the terms of the Act. The clause is appropriate. [16] An Order has been separately issued that reflects this decision in PR813512. [17] 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 if that order is ultimately made. 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 <PR813511> -- 4 of 4 --