Construction, Forestry and Maritime Employees Union v Freo Group Pty Ltd

[2025] FWC 2895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Freo Group Pty Ltd

(B2025/1519)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 30 SEPTEMBER 2025

Proposed protected action ballot of employees of Freo Group 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 Freo Group Pty Ltd (Freo Group or Employer).

On 29 September 2025, the Commission was advised that the Employer 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 Bradley Upton, Assistant State 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 Freo Group, 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.

Section 443(3)(c) of the Act requires the Commission to specify a date in the protected action ballot order by which voting in the protected action ballot closes. For the purpose of this provision, s.443(3A) requires the Commission to specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable. The application did not state a specific date but proposed that voting would close five working days from the date that the ballot agent determined to commence the ballot in accordance with s.451. The Commission invited the CFMEU to provide submissions in support of the proposed ballot period but no response was received.

Matters relevant to the exercise of the discretion under s.443(3A) may include:

·     the size of the voting group,[1]
·     the capacity of the ballot agent and the capacity of the employer and bargaining representatives to provide the ballot agent with the details of employees to be balloted the views of the employer,[2]
·     the location of the group of employees, their rosters or work patterns, the nature of the work they are performing, their access to the internet or telephone services and the method by which the ballot will be conducted.[3]
·     the requirements in relation to conducting conferences pursuant to s. 448A.[4]

To the extent that these matters are addressed in material before the Commission, I have taken all of these matters into consideration and determined that for the purposes of s.443(3)(c) that the date by which voting is to close is 14 October 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR792206.

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] CEPU v Nilsen (NSW) Pty Ltd[2023] FWCFB 134, [55]

[2] Ibid

[3] Ibid, [65]

[4] Ibid, [66]

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was asked to decide on an application by the Construction, Forestry and Maritime Employees Union (CFMEU) under section 437 of the Fair Work Act 2009. The CFMEU sought an order for a protected action ballot concerning certain employees of Freo Group Pty Ltd. The employer did not object to the application. As such, the Deputy President determined the matter based on the submitted documents without a hearing. The CFMEU provided a declaration from Bradley Upton, Assistant State Secretary, confirming the union's efforts in bargaining with the employer and its genuine attempts to reach an agreement.

The primary legal issue the Commission addressed was whether the requirements for a protected action ballot order were met under section 443(1) of the Act. The Commission also needed to decide on the closing date for voting in the ballot, as stipulated in section 443(3)(c) of the Act. The CFMEU proposed a five-working-day period from the ballot's commencement date, but did not specify a closing date. Relevant factors considered by the Commission included the size of the voting group, the ballot agent's capacity, and the employer's and bargaining representatives' ability to provide necessary details. The Deputy President determined that the voting should close on 14 October 2025, facilitating a prompt ballot process.

The Deputy President concluded that the CFMEU had met all requirements for a protected action ballot. The ballot would be conducted by Democratic Outcomes Pty Ltd (CiVS), an approved agent under section 468A of the Act. The closing date for voting was set to ensure the ballot was conducted as expeditiously as practicable. The Commission also noted that a compulsory conciliation conference would be conducted to facilitate meaningful negotiations, as outlined in section 448A of the Act.

This decision was made in the context of ensuring fair and efficient processes for protected action ballots, balancing the rights of employees and employers while adhering to statutory requirements. The Commission's order established the necessary timeframe and procedural details for the ballot, setting a precedent for future similar applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established