Construction, Forestry and Maritime Employees Union v Chep Australia Limited

[2025] FWC 1243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Chep Australia Limited

(B2025/732)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 MAY 2025

Proposed protected action ballot of employees of Chep Australia Limited

This is an application by the Construction, Forestry and Maritime Employees Union acting through its Manufacturing Division (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 Chep Australia Limited (Chep or Employer).

On 2 May 2025, the Commission was advised that the Employer, 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 Prescilla Schwalger, 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 Chep, 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 the Australian Electoral Commission.

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 16 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 PR786978.

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, 30 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, acting through its Manufacturing Division, made an application under section 437 of the Fair Work Act 2009 to the Fair Work Commission (FWC) for a protected action ballot order. The application related to certain employees of Chep Australia Limited, and the Union sought permission to conduct a ballot to determine whether the employees would support protected industrial action. The Union argued that it had engaged in good faith negotiations with Chep and that the conditions for a protected action ballot were satisfied.

The primary legal issue for the FWC to decide was whether the Union had met the requirements under section 443(1) of the Act to hold a protected action ballot. This required the Union to demonstrate that it had genuinely attempted to reach an agreement with Chep and that there was a notification period for the proposed agreement. The Union provided a declaration from its Organiser, Prescilla Schwalger, outlining the steps taken in the bargaining process and affirming the Union’s genuine efforts to reach an agreement. The FWC also had to determine the closing date for the ballot, which was set by the Union and aligned with section 443(3)(c) of the Act.

The FWC, after reviewing the material before it, was satisfied that the Union had met all the requirements for a protected action ballot. The Deputy President concluded that the Union had genuinely tried to reach an agreement with Chep and that the notification period for the proposed agreement was in place. Consequently, the FWC granted the application and determined that the ballot would be conducted by the Australian Electoral Commission. The closing date for voting was set as 16 June 2025, effectively 30 working days from the making of the Order. The matter was to be assigned to another Member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act. An Order was issued to require the attendance of all bargaining representatives and likely Directions would follow to ensure meaningful negotiations at the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established