1 Fair Work Act 2009 s.437 - Application for a protected action ballot order Australian Workers' Union v Environmental Services Group Pty Ltd (B2026/735) COMMISSIONER PANOPOULOS MELBOURNE, 29 JUNE 2026 Proposed protected action ballot of employees of Environmental Services Group Pty Ltd – non-AEC ballot agent electronic voting [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 Environmental Services Group Pty Ltd (Environmental Services or Employer). [2] On 25 June 2026, the Commission was advised that the Employer objected to the Application. [3] The Employer raised three objections, and two were resolved through correspondence between the parties on 25 June 2026 prior to the matter being allocated to my Chambers. After the Applicant amended the name of the Employer from Total Drain Group Pty Ltd to Environmental Services Group Pty Ltd and changed the ballot closing period from 8 days to 10 days, the remaining objection from the Employer is in relation to question 14 of the proposed ballot. [4] On 29 June 2026 during a conference via Microsoft Teams, the parties agreed to have the matter determined on the papers with written submissions lodged that afternoon. [5] The Employer objects to question 14 on three fronts. Their submissions include the following: [6] Firstly, that question 14 does not specify what conduct results in a limitation or restriction on work performed, and that it does not constitute industrial action under s.19(1) of the Act. [7] Secondly, the Employer submits that as (b)-(c) of question 14 contemplate taking industrial action while wearing the Employer branded uniform, this contravenes the Employer’s Uniform and PPE Policy which outlines that the uniform cannot be worn in circumstances that could bring disrepute to the Employer. [2026] FWC 2434 DECISION [2026] FWC 2434 2 [8] Thirdly, that (d) of question 14 interferes with the Employer’s business communications and impacts on customers or regulators who are not parties to the dispute. AWU submissions [9] The AWU’s submissions include the following: • That question 14 adequately explains the nature of the industrial action as the “questions should describe the industrial action in such a way that employees are capable of responding to them.”1 • Consistent with the Full Bench in Curtin,2 the Commission is not required at the ballot stage to determine whether every conceivable future implementation of the proposed industrial action would ultimately constitute protected industrial action. • That question 14 involves an interruption of work in order to undertake specific campaign activities, and is therefore industrial action within the meaning of s.19(1) of the Act. The proposed industrial action identifies the purpose of the interruption which is consistent with Mornington Peninsula.3 • Industrial action such as stoppages of work to post on social media and communicate with the media, constitute industrial action.4 • Industrial action is intended to disrupt ordinary performance of work. The fact that conduct may also be inconsistent with workplace policies does not alter its character as industrial action.5 • The hypothetical impacts on customers, regulators and the Employer’s systems invites the Commission to determine issues concerning the future implementation and effect of industrial action rather than whether the question is industrial action for the purposes of taking protected industrial action under s.437 of the Act. [10] Without conceding any deficiencies in question 14, the Applicant proposed the following changes: i. Adding the words to (c): in support of an explaining industrial action ii. Deleting (d) and replacing it with a new clause 15 reading: An unlimited number of periodic and indefinite bans on sending work-related emails that do not feature slogans or messages relating to enterprise bargaining or industrial action in the email signature block. 1 John Holland Pty Ltd v AMWU [2010] FWAFB 526 (‘Holland’). 2 National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 (‘Curtin’). 3 Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 4740 (‘Mornington Peninsula’). 4 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v The Laminex Group T/A Laminex Group Pty Ltd [2023] FWC 2142 (‘Laminex’). 5 Applicant’s Outline of Submissions, para 21. [2026] FWC 2434 3 Consideration [11] The Employer submits that question 14 is too ambiguous to identify industrial action. But there is “a high bar for concluding the question is incapable of being responded to”.6 And I am not convinced that the Employer has cleared that high bar. [12] It is not controversial that in relation to s.437, the specificity required of questions put to employees requires that “the question should describe the industrial action in such a way that employees are capable of responding to them.”7 I am satisfied that question 14 is capable of being responded to by the employees participating in the ballot with a “yes” or “no” answer. And it is sufficiently clear what they are voting for. Interrupting work is to stop work and the reasons for stopping work are clearly set out in the paragraphs of question 14. That is, I am of the view that the proposed action in question 14 is capable of constituting industrial action within the definition of s.19 of the Act for the purposes of s.437(3)(b) of the Act. [13] I am not persuaded by the Employer’s submissions that engaging in industrial action whilst wearing the work uniform and contravening company policy has nothing to with limiting work performance. Conduct can be industrial action and also contravene company policy. In fact, industrial action may be taken because of a particular company policy. [14] That the employees are not authorised to issue company media releases or speak on behalf of the Employer does not and ought not prevent employees from making statements or explaining the industrial action. Wearing a company uniform doing so, clearly does not mean that they are speaking on behalf of the Employer. To conclude otherwise would be create limitations on industrial action that are not facilitated by the Act. [15] I am satisfied that the AWU’s amendment to remove paragraph (d) of question 14 and replace it with a new question 15 provide specificity and limitations around the content of emails and complies with the requirements of s.437 of the Act. [16] On the basis of the material before me, including the declaration of Kassey Dickie, 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 Environmental Services, 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. [17] 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. [18] 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 13 July 2026. This also establishes the ballot period for the purpose of s.448A(2) of the Act. [19] An Order has been separately issued in PR811522. 6 Curtin, [47]. 7 Holland, [19]. [2026] FWC 2434 4 [20] 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. COMMISSIONER Determined on the papers Printed by authority of the Commonwealth Government Printer <PR811523>