"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Tankweld Construction Projects Pty Ltd [2026] FWC 3244

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 Tankweld Construction Projects Pty Ltd (B2026/1046) COMMISSIONER YILMAZ MELBOURNE, 25 AUGUST 2026 Proposed protected action ballot of employees of Tankweld Construction Projects 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 Tankweld Construction Projects Pty Ltd (Tankweld or Employer). [2] On 24 August 2026, the Commission was advised that the Employer, in effect, did object to the Application on the basis that the AMWU has not been genuinely trying to reach agreement with the Employer. [3] The parties were afforded an opportunity to file submissions and a hearing scheduled for 25 August 2026. The AMWU relied on its submissions and the witness evidence of Mr Tony Hynds, site organiser and the Employer relied on its cross examination of Mr Hynds and its submissions. [4] The relevant section of the Act concerning the Employer’s objection concerns s.443(1)(b) of the Act. Section 443 (1) provides: 443 When the FWC must make a protected action ballot order (1) [When FWC must make a protected action ballot order] 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 [2026] FWC 3244 DECISION -- 1 of 4 -- [2026] FWC 3244 2 trying to reach an agreement with the employer of the employees who are to be balloted. [5] The Employer contends that the credibility of Mr Hynds is at question and at most, the evidence is inaccurate and misleading and demonstrates that the AMWU has not been genuinely trying to reach agreement. The Employer further contends that the AMWU PABO application is made for ulterior motives. [6] Mr Hynds gave evidence that on 12 August 2026, employees of three companies (including the Employer) attended a mass meeting to determine whether a PABO application ought to be pursued. He further gave evidence that the Employer had not agreed to any of the terms contained in the draft enterprise agreement presented by the AMWU. He did state that the Employer had raised queries regarding the AI clause and questioned the payment for the onsite delegate over the course of various meetings. He further states that while the Employer did pass on a wage adjustment of 4%, no agreement has been reached in respect to any of the terms contained in the proposed enterprise agreement. While the Employer contends that the evidence is unreliable to satisfy the Commission that the AMWU was and is genuinely trying to reach agreement, there was no evidence to support that either the meeting of 12 August 2026 or any other conduct demonstrates an ulterior motive other than trying to reach agreement. [7] Mr Hynds’ evidence of the AMWU presenting to the Employer its log of claims, including a draft copy of the proposed enterprise agreement and NERR, a notice of the main changes proposed to the existing enterprise agreement, a financial disclosure, voting notification materials and other documents on 1 July 2026, emails of 1, 2, 7, 21, 22, 24, 27 July, a telephone discussion between the parties on 7 July and a meeting on 27 July before notification on 12 August of the decision to proceed with a PABO application were not contested by the Employer.1 [8] Having considered the evidence of Mr Hynds and the submissions of the Employer I do observe that the Employer objects to the conduct of the AMWU over the bargaining process and the speed at which a PABO application has been made. There are no hard and fast rules how quickly or the method of bargaining ought to progress. Section 443 of the Act makes clear the Commission ought to approve a protected action ballot order where an application is made pursuant to s.437 and where it is satisfied that the Applicant has been and is genuinely trying to reach agreement. [9] I further observe that while the Employer raised concerns about good faith bargaining during the mention, this was not pursued during the hearing. In these circumstances it is helpful to refer to the Full Bench in Esso Australia Pty Ltd v AMWU, CEPU and AWU:2 “[18] 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.” 1 Exhibit A1, Witness statement of Mr Tony Hynds at TH-1, TH-2 and TH-3. 2 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 (AWU) [2015] FWCFB 210. -- 2 of 4 -- [2026] FWC 3244 3 [10] Further the approach to be taken by the Commission involves finding of fact with reference to the circumstances, the extent of progress and steps taken to reach agreement. In this regard the Commission’s satisfaction is a discretionary decision directed at the Applicant’s conduct prior to the application; the terms “has been, and is,” requires temporal considerations. The relevant paragraphs of the Esso Australia Pty Ltd v AMWU, CEPU and AWU 3 decision follow: “[53] 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.” “[54] 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.” “[57] 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.3 The Commission should have regard to all of the relevant facts and circumstances of the particular case.” [11] In this matter, the evidence of Mr Hynds was that at the mass meeting on 12 August 2026, the purpose was to determine whether a PABO application ought to be pursued. The Employer contends that the vote was a group vote of all three companies. However, the evidence was that employees of all three companies were identifiable and separate votes took place. There was no evidence to dispute Mr Hynds. On this basis I accept the evidence of Mr Hynds regarding the purpose of the meeting. Mr Hynds evidence and the declaration of Mr Daniel Yacoub detailed the steps taken by the AMWU to reach agreement. This evidence was not contested by the Employer. During cross examination much attention was on the issue of the delegates right term in the proposed agreement and the status of the cost associated with an onsite delegate. This demonstrates that the parties had engaged in negotiation and no agreement was reached. Mr Hynds gave evidence that the onsite delegate is not a term of the proposed enterprise agreement. From the cross examination it is not apparent to me that the Employer had distinguished these issues. In any event, it is not evident that this issue is relevant to whether the AMWU has been and is genuinely trying to reach an agreement with the Employer. 3 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 [2015] FWCFB 210. -- 3 of 4 -- [2026] FWC 3244 4 [12] On the basis of the material before me, including the evidence of Mr Hynds and declaration of Mr Yacoub, Industrial Officer, setting out the steps taken by the AMWU in bargaining with the Employer, I am satisfied that it has been, and is, genuinely trying to reach agreement with Tankweld, 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. [13] 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. [14] Under the Act, the Commission must determine the ballot period. In exercising the discretion under s.443(3A), I have had regard the availability of the Commission to conduct the compulsory conference pursuant to s.448A of the Act. The Commission is obliged to make an order that enables the ballot to be conducted as soon as practicable. I further note that the parties did not raise any objection to the proposed ballot period. 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 15 September 2026.4 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [15] An Order has been separately issued in PR813639. [16] A compulsory conference pursuant to s.448A compulsory conciliation conference will be scheduled for 11 September 2026. An Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference will be issued in due course. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations. COMMISSIONER Appearances: D Yacoub, for the AMWU J Nguyen, for the Respondent Hearing details: 2026. Melbourne by Microsoft Teams August 25 Printed by authority of the Commonwealth Government Printer <PR813638> 4 This is, in effect, 15 working days from the making of the Order and was the date agreed by the parties. -- 4 of 4 --