As a result, it was not possible to say that the unions continued to follow unauthorized issues and that they were actually trying to reach an agreement at all times. Employers should be aware that in the event of a union`s request to refuse a Protected Action Vote (BSAP), because the union has not really attempted to negotiate a company agreement, the FWC will consider the entire behaviour of the union during the bargaining process. It appears that evidence of a limited number of isolated cases of inappropriate behaviour may be insufficient, even if this behaviour involves active misrepresentations of the union. The Commission can only establish a PABO if it is satisfied that the applicant is actually trying to reach an agreement. One of the interesting aspects of the decision is that Full Bench rejected the accepted proposal in some earlier cases, according to which the Commission cannot be so satisfied if the applicant has asserted or is pursuing a right in an inadmissible case. The Bench said that the continuation of a claim to an unauthorized matter is only one of the potentially relevant circumstances. The Bench concluded that this conclusion, although an agreement containing a case inadmissible for relevant purposes is not an agreement at all. On the other hand, there is strong evidence that a union that, once identified, continues to claim an unresolved case, can jeopardize its PABO claim. This obliges the employer to challenge claims deemed inadmissible at an early stage. Section 443 of the Fair Work Act provides that Fair Work Australia (“FWA”) must adopt a protected voting order regarding a proposed company agreement if: Esso Australia appeals an FWC Full Bench against the Protected Action Ballot Order (PABO) granted to CEPU, AMWU and AWU in connection with negotiations on new agreements for upstream oil and gas employees in Victoria. In the cases of Esso Australia Pty Ltd v AMWU, CEPU and AWU, Full Bench – President Justice Ross, Vice President Hatcher and Commissioner Simpson – clarified this long-standing tension over whether a party to the negotiations “can actually attempt to reach an agreement” when it has followed or prosecuted illicit cases. The existence of rights for unauthorized matters does not support the finding that an organization has not really sought to reach an agreement.  “.
Whether a person is actually trying to reach an agreement requires a subjective assessment of the person`s actual intent and general circumstances. . . . .