Construction, Forestry and Maritime Employees Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Graincorp Operations Limited Summary

[2025] FWC 2434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Graincorp Operations Limited

(B2025/1313)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 AUGUST 2025

Proposed protected action ballot of employees of Graincorp Operations Limited

This is a joint application by the Construction, Forestry and Maritime Employees Union (CFMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), (collectively the Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Graincorp Operations Limited (Graincorp or Employer). Section 437(1) of the Act contemplates a joint application of this kind by 2 or more bargaining representatives.

On 19 August 2025, the Commission was advised that the Employer, whilst indicating a different view on aspects of the prior negotiations which did not impact upon the statutory requirements, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the separate declarations of Bradley McDougall, Organiser (CEPU) and Glen Williams, Branch Secretary (CFMEU) setting out the steps taken by the CEPU and CFMEU in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with Graincorp, 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.

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.

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 4 September 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR790831.

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

[1] This is, in effect, 14 (calendar) days after the anticipated commencement of the ballot, and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application for a protected action ballot order (PABO) by two unions, the Construction, Forestry and Maritime Employees Union (CFMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The application was made under section 437 of the Fair Work Act 2009. The unions sought the PABO in relation to certain employees of Graincorp Operations Limited (Graincorp). The unions argued that they had been genuinely attempting to reach an agreement with Graincorp and that there was a notification time in relation to the proposed agreement. The unions further argued that all requirements under section 443(1) of the Act had been met. Graincorp did not object to the application, and the matter was determined on the papers without a hearing.

The legal issues before the Commission were whether the unions had genuinely attempted to reach an agreement with Graincorp, whether there was a notification time in relation to the proposed agreement, and whether all statutory requirements under section 443(1) of the Act had been fulfilled. The Commission had to assess the declarations provided by the unions' representatives, Bradley McDougall and Glen Williams, to determine if the unions had genuinely been trying to reach an agreement. Additionally, the Commission needed to confirm that the statutory notification time for the proposed agreement had been met and that all procedural requirements were satisfied.

The Deputy President of the Commission, Hampton, found that the unions had genuinely attempted to reach an agreement with Graincorp and that there was indeed a notification time in relation to the proposed agreement. The Commission was satisfied that all statutory requirements under section 443(1) of the Act had been met based on the declarations and the material presented. Consequently, the Commission granted the application for the PABO and set the closing date for voting at 4 September 2025. This date also established the ballot period for the purposes of section 448A(2) of the Act. The Commission further directed that a compulsory conciliation conference be held under section 448A, with an Order to be issued requiring the attendance of all bargaining representatives. Directions would also be issued to ensure that the parties were prepared for meaningful negotiations at the conference.

The final orders included the grant of the PABO, the establishment of the closing date for voting, and the direction for a compulsory conciliation conference. The matter was to be assigned to another member of the Commission to oversee the conciliation conference. The unions were authorised to proceed with the protected action ballot, which was to be conducted by Democratic Outcomes Pty Ltd (CiVS), an approved ballot agent under section 468A of the Act.

Construction, Forestry and Maritime Employees Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Graincorp Operations Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established