Old enterprise agreements - when can protected action ballot orders be made?

Fair Work Australia has shut off an avenue to industrial action where even one employee sought to be covered under a new enterprise agreement is covered by an old agreement which is not about to expire. The decision in Power Projects International Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union [2011] FWAFB 1327 is an important clarification both of the availability of protected action ballot orders, and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The application for protected action ballot orders

PPI's employees perform work under maintenance contracts. They are covered by a certified agreement made in 2008 under the Workplace Relations Act 1996. PPI then won the contract to perform upgrade work. The unions argued that the upgrade work was not covered by the 2008 Agreement, and approached to PPI to negotiate an enterprise agreement to