Construction, Forestry and Maritime Employees Union v Civmec Construction and Engineering Pty Ltd

[2025] FWC 2215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Civmec Construction and Engineering Pty Ltd

(B2025/1195)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 JULY 2025

Proposed protected action ballot of employees of Civmec Construction and Engineering Pty Ltd

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 Civmec Construction and Engineering Pty Ltd (Civmec or Employer).

On 28 July 2025, the Commission was advised that the Employer held concerns about the proposed scope of the ballot and the length of the CFMEU’s proposed ballot period. The Employer also proposed that the ballot close date should be 10 working days from the date of the order. On 29 July 2025, the CFMEU clarified the employees to be balloted and proposed a slightly extended ballot close date of 7 working days from the anticipated commencement of the ballot.[1] This, in effect, results in the ballot closing 10 working days from the making of the order.

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 Kyle Sinclair, 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 Civmec, 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 13 August 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR790156.

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] The original application sought 5 working days from the commencement of the ballot.

[2] This is, in effect, 7 working days from the anticipated commencement of the ballot and 10 working days from the Order as now sought by the parties.

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 for a protected action ballot order in relation to certain employees of Civmec Construction and Engineering Pty Ltd. The dispute arose as the union and the employer had been unable to reach an agreement on the terms of an enterprise agreement. The Commission received submissions from both parties regarding the proposed scope and duration of the ballot. The employer expressed concerns about the proposed ballot period, while the union sought an extension of the ballot period to accommodate the anticipated commencement date.

The key legal issues before the Deputy President were whether the union had genuinely attempted to reach an agreement with the employer and whether all statutory requirements for a protected action ballot had been satisfied. The Deputy President found that the union had indeed been genuinely attempting to reach an agreement with the employer, based on the evidence provided, and that all statutory prerequisites under the Fair Work Act 2009 had been met. The Deputy President also addressed the employer's concerns about the ballot period and set the closing date for voting at 13 August 2025, which aligned with the union's adjusted proposal.

The Deputy President issued an order approving the ballot to be conducted by Democratic Outcomes Pty Ltd, who was approved as an eligible ballot agent. The Deputy President further directed that a compulsory conciliation conference would be held, requiring the attendance of all bargaining representatives. Directions were to be issued to ensure the parties were prepared for meaningful negotiations at the conference. This decision allowed the ballot process to proceed while also facilitating further negotiations between the parties.

The Commission ordered that the ballot for protected action would proceed under the specified conditions, with a closing date of 13 August 2025. The compulsory conciliation conference was to be conducted by another member of the Commission, aiming to resolve the outstanding issues and reach a negotiated enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established