Construction, Forestry and Maritime Employees Union v Fremantle Port Authority

[2025] FWC 2424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Fremantle Port Authority

(B2025/1305)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 18 AUGUST 2025

Proposed protected action ballot of employees of Fremantle Port Authority

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 Fremantle Port Authority (Fremantle Port or Employer).

On 18 August 2025, the Commission was advised that the Employer, in effect, did not object to the Application. I observe that Fremantle Port also provided some clarification about the bargaining process to this point.

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 Jeff Cassar, Assistant Branch Secretary, 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 Fremantle Port, 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 8 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 PR790802.

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, 21 (calendar) 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 (FWC) for a protected action ballot order concerning certain employees of the Fremantle Port Authority (Fremantle Port). The application was made under section 437 of the Fair Work Act 2009. Fremantle Port did not object to the application, and the Commission proceeded to determine the matter on the papers without a hearing. The CFMEU sought the ballot order to facilitate a vote among employees regarding proposed industrial action, following unsuccessful bargaining attempts with Fremantle Port.

The primary legal issue for the Commission to decide was whether the CFMEU had met the statutory requirements to hold a protected action ballot. This involved verifying that the union had genuinely attempted to reach an agreement with the employer and ensuring all procedural prerequisites were satisfied, including notification time and the involvement of an approved ballot agent. The Commission had to assess the CFMEU's declaration and the process undertaken in bargaining with Fremantle Port to determine if the conditions under section 443 of the Act were fulfilled.

The Deputy President Hampton determined that the CFMEU had met all the necessary requirements for a protected action ballot. The union's efforts to reach an agreement and the provided evidence of genuine bargaining attempts were sufficient. The Commission also noted the approval of the ballot agent, Democratic Outcomes Pty Ltd, and set the closing date for voting as 8 September 2025. Consequently, the Commission granted the ballot order, allowing the union to proceed with the vote among employees. The decision also included the assignment of the matter for a compulsory conciliation conference under section 448A of the Act.

The Commission issued an order granting the CFMEU's application for a protected action ballot, specifying the closing date for voting and the involvement of Democratic Outcomes Pty Ltd as the ballot agent. Another member of the Commission was assigned to conduct the compulsory conciliation conference, with an order requiring the attendance of all bargaining representatives. Directions were anticipated to ensure the parties were prepared for meaningful negotiations during the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established