1 Fair Work Act 2009 s.437 - Application for a protected action ballot order Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BHP Minerals Pty Ltd (B2026/763) DEPUTY PRESIDENT HAMPTON ADELAIDE, 2 JULY 2026 Proposed protected action ballot of employees of BHP Minerals Pty Ltd – non-AEC ballot agent electronic voting [1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU 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 BHP Minerals Pty Ltd (BHP or Employer). [2] On 2 July 2026, the Commission was advised that the Employer, in effect, did not object to the application if amended following discussions between the parties. This included the inclusion of an emergency events undertaking and the provision of extended notice for the taking of industrial action. These are reflected in the Order made by the Commission. [3] The emergency events undertaking is in the following terms: Emergency Events During periods of notified industrial action, employees taking the protected action will keep the mobile device they ordinarily use for communicating with BHP Minerals on their person for the purpose of being notified of and will comply with a direction from BHP management to return to work to perform work in response to an unexpected event that creates a serious and imminent threat to health, safety or wellbeing (including to the Port Hedland and Newman communities and WAIO villages), if BHP reasonably considers the following conditions are met: (a) the work cannot reasonably be performed by anyone else; (b) the work must be performed immediately in response to an emergency event, which includes a health, safety or environmental incident, network issues affecting power to Newman Township or WAIO villages, any WAIO sites fire water systems and communication [2026] FWC 2485 DECISION [2026] FWC 2485 2 infrastructure and any WAIO site potable water and wastewater processing facilities or genuine immediate risk on site; and (c) during the duration of the notified industrial action, an employee will only resume work to the extent necessary to avert the serious or imminent threat to safety. As soon as reasonably practicable after a direction to return to work is given, but in any event within 24 hours, BHP will provide to any employee, and the relevant Bargaining Representative, directed to respond to an emergency event a written notice containing a brief description of the emergency event and an explanation as to how the direction complied with subclauses (a) to (c) above. [4] In the circumstances, I have decided to grant leave to amend the application and determined the matter on the papers without holding a hearing. [5] On the basis of the material before me, including the declaration of Brant Softley, Lead Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with BHP, 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. [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 consequently 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 16 July 2026.1 This also establishes the ballot period for the purpose of s.448A(2) of the Act. [8] The parties, in effect agreed, I am satisfied, 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. By consent, the extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order. [9] An Order has been separately issued in PR811636. 1 This is 10 working days from the making of the Order and is in effect, the same period sought in the application. [2026] FWC 2485 3 [10] 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 <PR811637>