Active Bargaining Does Not Block a Protected Action Ballot 

| October 5, 2026

The Fair Work Commission has confirmed that active bargaining is not a barrier to a protected action ballot order.

For employers, the decision is a reminder to direct objections to the statutory tests, support special requests with evidence and prepare early for operational disruption.

Background 

The Transport Workers’ Union of Australia applied under section 437 of the Fair Work Act 2009 (Cth) for a protected action ballot order covering certain employees of Sydney Night Patrol & Inquiry Co Pty Ltd, trading as Certis, who perform security work at Sydney Airport. 

The parties commenced bargaining in around May 2026 for an agreement to replace the Certis Security Australia Sydney Airport Agreement 2024. They held eight bargaining meetings in June and July. A further meeting was scheduled for 15 September 2026. The existing agreement nominally expired on 31 August 2026. 

Certis opposed the application. It argued that bargaining remained active, the application was premature, the ballot questions were unclear and the proposed action raised safety and security concerns. Certis also sought to extend the minimum notice period for industrial action from three to seven working days. 

The TWU relied on evidence from a union official. Certis filed no evidence in support of its opposition or its request for a longer notice period. 

The Commission’s Decision 

Commissioner Crawford granted the protected action ballot order and rejected each of Certis’ objections. 

No Bargaining Impasse Was Required 

The Commission found that the TWU had been, and continued to be, genuinely trying to reach agreement. It had issued a log of claims and attended bargaining meetings to advance those claims. 

The employer’s arguments that bargaining remained active and that the application was premature did not engage with the statutory requirement in section 443(1)(b). The Commission said it could not assess whether the application was premature or whether bargaining had reached an impasse when deciding whether to make the order. 

The Ballot Questions Were Sufficiently Clear 

After the TWU withdrew two questions, the remaining questions covered one-hour and 24-hour stoppages, overtime bans, indefinite stoppages and bans on specified airport screening activities. The Commission found that employees could understand and respond to the questions. 

The employer also raised concerns about the process for preparing the voter roll and providing employee information to the ballot agent. The Commission described the proposed confidential comparison of the employer’s employee list and the union’s membership list as the standard approach. Those concerns did not weigh against making the order. 

Safety Concerns Did Not Defeat the Application 

Certis raised the possible safety and security consequences of protected industrial action at Sydney Airport. The Commission held that it had no general discretion to refuse a ballot question on safety grounds. 

The precise nature and effect of any action would become clearer when written notice of the action was given. The Fair Work Act contains separate mechanisms for dealing with threats to safety and significant economic harm arising from protected industrial action. 

No Evidence Supported a Longer Notice Period 

The Commission may extend the minimum notice period where exceptional circumstances justify a longer period. That assessment requires findings of fact about the circumstances said to be exceptional. 

Certis did not file evidence supporting its request. Although it relied on a 2022 decision involving employees at the same airport, the Commission distinguished that matter because extensive evidence had been filed and the union had not opposed a five-working-day period. The Commission retained the minimum notice period of three working days. 

The Order 

The Commission ordered Fair Vote Services Pty Ltd to conduct the ballot. Voting was to close on 18 September 2026. The matter was also to be assigned for the compulsory conference required by section 448A of the Fair Work Act. 

What This Means for Employers 

1. Focus on the Statutory Tests 

General concerns that an application is too early, bargaining is still productive or industrial action would be disruptive are unlikely to determine a ballot application. An employer should identify the specific statutory requirement in issue and direct its evidence and submissions to that requirement. 

2. Treat Evidence as Essential 

A request for a longer notice period or another special order requires more than assertion. Employers should collect evidence about the workforce, operating model, safety systems, customer obligations, regulatory requirements, lead times and the practical effect of each proposed form of action. The evidence must explain why the circumstances are exceptional and why the requested order is necessary. 

3. Separate the Ballot Stage From the Action Stage 

A ballot order allows eligible employees to vote on specified industrial action. It does not mean that the action will occur. Employers should avoid treating the ballot application as the final dispute about safety or disruption. Later notices and the actual circumstances may provide a clearer basis for considering the Fair Work Act’s separate protective mechanisms. 

4. Use the Ballot Application as a Governance Trigger 

Once an application is filed, the business may have limited time to prepare. Employers should activate a response group covering industrial relations, operations, safety, security, payroll, rostering, customer management and communications. The response should support continued bargaining rather than replace it. 

5. Protect Bargaining Credibility 

Contingency planning should run alongside genuine bargaining. Employers should maintain accurate records of meetings, claims, proposals, modelling, decisions and responses. Communications should remain factual, measured and consistent with the bargaining strategy. 

Actions for Employers 

Key Takeaways 

• Bargaining does not need to reach an impasse before a union seeks a protected action ballot order. 

• Ballot questions will satisfy the statutory test if employees can understand and respond to the proposed forms of industrial action. 

• Safety and security concerns do not create a general discretion to refuse a ballot question. The Fair Work Act provides separate mechanisms for serious harm and safety risks. 

• An employer seeking a longer notice period must prove exceptional circumstances with evidence. 

• A ballot application should trigger coordinated legal, operational, safety and communication planning, even while bargaining continues. 

Why Early Preparation Matters

This decision confirms that employers face a focused statutory test when opposing a protected action ballot order. Active bargaining, potential disruption and general safety concerns will not, without more, defeat an application. 

Employers should prepare early, support applications with evidence and keep contingency planning aligned with genuine bargaining. Legal advice should be obtained promptly where proposed action may affect safety, security, critical services or significant business operations. 

Need Support With a Protected Action Ballot?

Protected action ballot applications can raise both legal and operational issues for employers.

IRiQ Law can assist with bargaining strategy, protected action ballot applications, industrial action planning and Fair Work Commission proceedings.

Where ballot administration is required, IRBLOTS provides secure and independently managed workforce voting processes designed to support reliable and defensible outcomes.

If your business is preparing for a protected action ballot or responding to industrial action risks, contact our team to discuss the appropriate next steps.