Protected Action Ballot Granted Despite Employer Objections: What the ACT's Loss Means for Bargaining Employers

The Fair Work Commission granted a protected action ballot order (PABO) to the CEPU in relation to employees of the Australian Capital Territory, despite the ACT's objections to the ballot questions and the draft order. Deputy President Hampton determined the matter on the papers without a hearing, finding that all statutory prerequisites under s.443(1) of the Fair Work Act 2009 were met and that the employer's objections did not warrant refusal.

At a glance - test at 8:52am

• Parties: CEPU v Australian Capital Territory (B2026/1397)

• Citation: [2026] FWC 3881

• Section: s.437, Fair Work Act 2009 (application for a PABO); s.443(1) (duty to make the order)

• Outcome: PABO granted; voting closes 23 October 2026; compulsory conciliation conference ordered

• Who it affects: Public-sector and government employers facing PABO applications during enterprise agreement bargaining, particularly where multiple unions apply for ballots on the same proposed agreement

Key lessons for employers and HR/IR practitioners

1. Objections to ballot-question clarity have a narrow scope. The Commission found that question 4 was "poorly drafted" yet still sufficient, because the threshold is only that employees be "capable of responding to them" — not that questions be legally precise. Here, the ACT's objection that questions were "too board and lacked clarity" did not prevent the order.

2. The Commission will not assess the merits of the proposed industrial action. Deputy President Hampton stated that "the Commission does not, in determining a PABO application, approve or disapprove of the proposed forms of industrial action" beyond checking the ballot questions comply with s.443(1)(a) and s.443(3)(d). An employer cannot use a PABO hearing to challenge the substance of the action proposed.

3. The risk of ambiguous ballot questions rests with the union, not the employer. The decision confirms that if questions are ambiguous, the consequence is that industrial action specified in a later s.414 notice "was not authorised by the ballot and that the action is not protected for the purposes of s.409(2)" — a risk borne by the applicant union.

4. A compulsory conciliation conference will follow. The Commission ordered a s.448A(1) conference with an Order requiring attendance of all bargaining representatives. Employers should calendar this and prepare for meaningful negotiation, as the Commission indicated Directions may be issued to ensure parties attend "ready to conduct meaningful negotiations."

5. Multiple union applications on the same agreement are a recognised pattern. The CFMEU and CPSU made separate PABO applications for the same proposed agreement. Employers should anticipate coordinated industrial action across multiple unions and plan operational contingencies accordingly.

What happened

The CEPU applied under s.437 for a PABO in relation to employees covered by the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026. The application was made in the context of bargaining for a new enterprise agreement. The ACT objected to elements of the application: an incomplete draft order was submitted, the eligibility of the nominated Ballot Agent was questioned, and certain ballot questions were described as "too board and lacked clarity." The Commission also raised inconsistencies with the CEPU, which provided an amended application addressing some, but not all, of those inconsistencies. Neither party sought to make further submissions, and the matter was determined on the papers.

The ACT argued

The employer raised three objections: the draft order was incomplete; it was not evident that the nominated Ballot Agent (TrueVote Pty Ltd) was eligible; and certain questions were "too board and lacked clarity." The decision records no further submissions from the ACT after the Commission afforded both parties the opportunity to provide additional material.

The CEPU's position

The CEPU filed a declaration by Damian Kirkwood, Organiser, setting out the steps taken in bargaining with the ACT and that the union "has been, and is, genuinely trying to reach agreement." The CEPU provided an amended application addressing some of the inconsistencies the Commission identified.

The Commission found

Deputy President Hampton found 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." On the ballot questions, the member observed that question 4 was "poorly drafted" but that the circumstances in NTEU v Curtin at [54] — which permit exclusion of a question that is "so lacking in meaning that it is incapable of being answered" — did not apply. TrueVote Pty Ltd was confirmed as an approved and eligible ballot agent under s.468A. The member granted leave to amend and adjusted the proposed order to "facilitate the efficiency and proper conduct of the ballot."

The bottom line

For employers facing a PABO application, this decision underscores that the Commission's gatekeeping role is narrow: it checks that the statutory prerequisites are met and that ballot questions are answerable by employees, and then makes the order. Objections to question clarity, ballot-agent eligibility, or the substance of the proposed action are unlikely to prevent the order if the s.443(1) requirements are satisfied. The practical protection for an employer lies downstream — in the s.414 notice of industrial action, which must specify the action with sufficient detail, and in the s.409(2) protection that attaches only to action authorised by the ballot. Employers should therefore focus their compliance resources on verifying that any s.414 notice received aligns precisely with the endorsed ballot questions, and on preparing for the compulsory conciliation conference that will follow the ballot.

Timeline

• 8 October 2026 — The Commission is advised of the ACT's objections to the application.

• 9 October 2026 — Deputy President Hampton determines the matter on the papers and makes the PABO.

• 23 October 2026 — Voting in the protected action ballot closes.

Source: [2026] FWC 3881

This article provides general information about a workplace relations decision or enforcement matter for educational purposes. It is not legal advice and should not be relied on as a substitute for advice from a qualified employment lawyer or industrial relations professional about your specific circumstances.