1 Fair Work Act 2009 s.437 - Application for a protected action ballot order Australian Workers' Union v Veolia Environmental Services (Australia) Pty Ltd (B2026/720) DEPUTY PRESIDENT HAMPTON ADELAIDE, 25 JUNE 2026 Proposed protected action ballot of employees of Veolia Environmental Services (Australia) Pty Ltd [1] This is an application by the Australian Workers' Union (AWU 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 Veolia Environmental Services (Australia) Pty Ltd (Veolia or Employer). [2] On 24 June 2026, the Commission was advised that the Employer did not oppose nor support the application and did not wish to be heard on the matter. The Employer did raise concerns as to the duration of the ballot period and advanced a position on that issue. [3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing. [4] On the basis of the material before me, including the declaration of Patrick Wood, Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Veolia, 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. [5] The electronic 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. [6] For the purposes of s.443(3)(c) of the Act, the Commission must determine the date by which voting is to close. The AWU sought a ballot period of 10 working days from the making of the order. The Employer sought that this period be 30 working days. [7] The context for this dispute is that there was an inconsistency in the ballot period specified in the originating application and that set out in the draft order provided by the AWU. That is 10 and 30 working days respectively. The Employer contends that this longer period should be specified on the basis that the parties held a bargaining meeting on 23 June 2026 and [2026] FWC 2344 DECISION [2026] FWC 2344 2 are now “very close to reaching an enterprise agreement.” Further, “for the compulsory conciliation process to be truly meaningful, and given the Commission's heavy workload and schedule, the parties would benefit on the original 30-day window to work through the final details.” The AWU confirmed that the 10 working days was intended in the original application and contended that this was the appropriate ballot period. [8] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd1 (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.”2 “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.” 3 “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.”4 [9] It is not feasible or necessary, given the nature of the issue in dispute and this application,5 to make detailed findings about the full facts in this matter. [10] Having regard to all of the circumstances of this matter, including the positions and particular situation of the parties (which I have taken on face value), and the various other considerations outlined in CEPU v Nilsen, I have determined that for the purposes of s.443(3)(c) of the Act, the date by which the voting in the protected action ballot in this matter is to close is 10 July 2026.6 This is the date that in this matter enables the ballot to be conducted as expeditiously as practicable given the known circumstances and the other relevant considerations including the capacity to conduct the s.448A conference. This also establishes the ballot period for the purpose of s.448A(2) of the Act. [2026] FWC 2344 3 [11] I observe that although 30 working days is specified in the ballot matters involving the Australian Electoral Commission, this is the earliest that the (postal) ballot can be conducted in those matters. In general terms at least, 30 working days as a ballot period would not be as expeditiously as practicable for an electronic ballot, unless there were particular practical considerations of the type outlined in CEPU v Nilsen. [12] An Order has been separately issued in PR811347. [13] 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 <PR811345> 1 [2023] FWCFB 134. 2 CEPU v Nilsen at [53], [58] and [79]. 3 Ibid at [58]. 4 Ibid at [66] to [79]. 5 Which must be determined within 2 working days as far as is practicable. – s.441 of the Act. 6 This is, in effect, 11 working days from the making of the Order.