1 Fair Work Act 2009 s.437 - Application for a protected action ballot order Australian Licenced Aircraft Engineers Association v Toll Transport Pty Ltd Trading (B2026/436) DEPUTY PRESIDENT HAMPTON ADELAIDE, 24 APRIL 2026 Proposed protected action ballot of employees of Toll Transport Pty Ltd – non-AEC ballot electronic voting [1] This is an application by the Australian Licenced Aircraft Engineers Association (ALAEA 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 Toll Transport Pty Ltd (Toll or Employer). [2] I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.1 I also observe that some of the same issues as arise in this application have been considered and dealt with in the related matter. [3] On 22 April 2026, the Commission was advised that the Employer objected to elements of the application and sought amendments relating to the ballot period and proposed ballot questions 10 and question 12. These amendments have not been agreed to by the ALAEA, and the Commission has dealt with these issues along with the determination of the application more generally. I also record that the Employer sought that the notice period for the taking of industrial action be extended and the ALAEA consented to this amendment, and in effect, accepted there were relevant exceptional circumstances. [4] In the circumstances, I have granted leave to amend the application to reflect the revised notice period. Further, given the nature of the matter and the objections raised - and having given parties an opportunity to provide further submissions, I have accepted the positions of the parties at face value and decided to determine the matter on the papers without holding a hearing. [5] Section 443 of the Act sets out the circumstances in which the Commission is required to make a PABO and reads: “443 When the FWC must make a protected action ballot order [2026] FWC 1478 DECISION [2026] FWC 1478 2 (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. [6] I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above are also not in dispute. [2026] FWC 1478 3 [7] There is no dispute that a valid application has been made and that the requirements of s.443(1) of the Act have been met. [8] In relation to the concerns raised about the ballot questions raised by the Employer (questions 10 and 12), it has contended in substance that “these questions are vague and uncertain, and employees would not understand what they are being asked to authorise”. The Employer provided further submissions to the Commission and I have considered these. I would observe that some of the authorities cited relate to matters involving the degree of detail and specification that must be provided when giving notice of protected industrial action, and for reasons set out below, are directed to different statutory requirements and a different stage of the process. [9] The ballot questions in issue are as follows: 10. An unlimited number of indefinite stoppages of work? Yes [ ] No [ ] … … 12. An unlimited number of indefinite or periodic partial work bans? Yes [ ] No [ ] [10] In considering this aspect, it is appropriate that I say something about the bargaining scheme of the Act which is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union,2 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.3 In general terms, the function of the PABO is established by Part 3-3 of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action (PIA) in support of bargaining for relevant enterprise agreements. Further, the taking of PIA by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement. [11] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,4 whether the action is notified in accordance with the requirements of the Act,5 and whether it is industrial action within the meaning of the Act.6 Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population, or of part of it, or causes significant damage to the Australian economy, or an important part of it,7 or causes significant economic harm.8 Industrial action that is not PIA may be prevented.9 [12] Further, consistent with the scheme of the Act, the ballot questions (if the PABO is issued and the ballot endorses the questions) set the broad nature of the potential PIA. The detail of what industrial action is to occur (within the parameters of the endorsed ballot questions), is [2026] FWC 1478 4 provided when the applicant gives notice of the industrial action to the employer. This must meet the particular notice requirements of s.414 of the Act. This is the point where sufficient detail and full clarity must be provided to the Employer to enable it to more fully understand and respond to the proposed industrial action. I observe that it has not been suggested here that the questions are not capable of being industrial action. [13] In terms of the clarity and detail of the ballot questions themselves, as affirmed in NTEU v Curtin University, in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,10 that Full Bench made the following observations: Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.11 [14] I am satisfied that the nature of the potential industrial action contemplated by each of the proposed ballot questions is discernible and the questions capable of being meaningfully responded to by the employees concerned. Further, any risk beyond that associated with the questions as an underpinning for protected industrial action is a matter for the ALAEA. [15] 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. ALAEA sought a ballot period of 10 working12 days, from the commencement date of the ballot. Under s.443(3)(c), the Commission must determine the closure date of the ballot. Under s.443(3A) must determine that date to enable the protected action ballot to be conducted as expeditiously as practicable. The Agent conducting the ballot determines the commencement date of the ballot itself. Accordingly, in assessing the period sought by the Applicant in this matter, it is necessary to estimate the ballot commencement date. In this matter, I have allowed 3 working days from the making of the Order, given the timing of the provision of information by the parties to enable the voter role to be established by the Agent. [16] Toll sought a period of 15 working days from the commencement date of the ballot on the basis that it suggests that its bargaining representative require this time to be available and have adequate time to prepare for the required s.448A conference. Further, it contended that “shorter periods may disproportionately disadvantage employees who are absent due to leave, rostered work patterns, remote working arrangements, or operational demands, and may not allow sufficient time to address technical, logistical or communication issues that arise during the ballot process.” Amongst other matters, Toll also cited logical challenges and the “Commission’s current heavy workload”. [17] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd13 (CEPU v Nilsen), considered the approach to be adopted by the Commission in establishing the ballot period. Amongst other matters, the Full Bench confirmed: [2026] FWC 1478 5 • “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.”14 • “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.” 15 • “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 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.”16 [18] I have considered the circumstances of the parties as known to the Commission. There is little detail about the size and nature of the workforce and the suggested disadvantages of the “shorter” period appear to be based upon potential consequences rather than any actual factors of particular relevance here. In any event, I have taken the positions at face value whilst balancing their interests and determined a ballot period within the scheme of the Act discussed in CEPU v Nilsen. [19] 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 14 May 2026.17 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [20] On the basis of the material before me, including the declaration of Rajan Sharma, Industrial Officer, setting out the steps taken by the ALAEA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Toll, 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. [21] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot. [2026] FWC 1478 6 [22] I am satisfied that that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The minimum extended notice period of five (5) calendar days applies to the items listed within Clause 5 of the Order. [23] An Order has been separately issued in PR799050. [24] 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 <PR799049> 1 B2026/448. 2 [2010] FWAFB 526. 3 [2012] FCAFC 53. 4 Sections 437, 408 and 409 of the Act. 5 Section 414 of the Act. 6 Section 19 of the Act. 7 Section 424 of the Act. 8 Section 423 of the Act. 9 Section 418 of the Act. 10 [2010] FWAFB 526. 11 Ibid, [19]. 12 This was confirmed in submissions made by the Applicant. 13 [2023] FWCFB 134. 14 CEPU v Nilsen at [53], [58] and [79]. 15 Ibid at [58]. 16 Ibid at [66] to [79]. [2026] FWC 1478 7 17 This is, in effect, 13 working days after the date of the Order and accords with that sought in the application.