Construction, Forestry and Maritime Employees Union v BlueScope Steel (AIS) Pty Ltd & BlueScope Steel Limited

[2025] FWC 1505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

BlueScope Steel (AIS) Pty Ltd & BlueScope Steel Limited

(B2025/873)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 JUNE 2025

Proposed protected action ballot of employees of BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited

This is an application by the Construction, Forestry and Maritime Employees Union (CFMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited (BlueScope or Employers). The Commission understands that the respondents are related businesses who engage employees who will be covered by the proposed agreement.

On 2 June 2025, the Commission was advised that the Employers, in effect, 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 declaration of David Kelly, NSW State Organiser, setting out the steps taken by the CFMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with BlueScope, 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 18 June 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 PR787843.

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, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited. The Commission understood that the employers did not object to the application. The primary issue for the Commission was to determine whether the CFMEU had fulfilled all the necessary requirements for a protected action ballot, including proving genuine efforts to reach an agreement with BlueScope. The CFMEU submitted a declaration by David Kelly, NSW State Organiser, outlining the bargaining process and the union's efforts to reach an agreement with the employer.

The Fair Work Commission concluded that the notification time for the proposed agreement existed and that the CFMEU had met all the requirements under section 443(1) of the Act. The Commission also noted that Democratic Outcomes Pty Ltd (CiVS) was approved as a ballot agent under section 468A of the Act. The Deputy President Hampton set 18 June 2025 as the closing date for voting, effectively establishing the ballot period. The decision to proceed without a hearing was based on the lack of objections from the employers and the material presented by the CFMEU. Additionally, the matter was assigned to another member of the Commission for a compulsory conciliation conference, with an expectation that directions would be issued to ensure meaningful negotiations.

The Commission issued an order granting the CFMEU's application for a protected action ballot, with voting to close on 18 June 2025. The decision was made on the basis that all requirements for such a ballot were met, and the ballot would be conducted by CiVS. The Commission also scheduled a compulsory conciliation conference for the parties to engage in meaningful negotiations, with further directions to be issued to facilitate this process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established