Construction, Forestry and Maritime Employees Union v GFWA Pty Ltd

[2025] FWC 1319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

GFWA Pty Ltd

(B2025/775)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 MAY 2025

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

On 12 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 Stephen Parker, 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 GFWA, 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.

In exercising the discretion in s.443(3A) regarding the ballot period, I have determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close is 22 May 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 PR787250.

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, 5 working days from the anticipated commencement of the ballot (8 working days from the Order) and was the period sought by the parties.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) sought a protected action ballot order from the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 (Act) in relation to employees of GFWA Pty Ltd (GFWA). The employer did not object to the application, leading to a determination on the papers without a hearing. The Deputy President Hampton was tasked with deciding whether the requirements for a protected action ballot were met, including the notification period and adherence to section 443(1) of the Act.

The legal issues before the court involved verifying if the CFMEU had genuinely attempted to reach an agreement with GFWA and if all procedural requirements were satisfied for the ballot to proceed. The CFMEU provided a declaration from Stephen Parker, an organiser, stating the union's efforts in bargaining and their genuine attempt to reach an agreement. The court needed to ensure that the notification period for the proposed agreement was met and that all statutory requirements were fulfilled, including the appointment of an approved ballot agent.

The Deputy President Hampton found that the CFMEU had met all the requirements for a protected action ballot. The notification period had been appropriately set, and the CFMEU's efforts to reach an agreement with GFWA were genuine. Additionally, the ballot agent, Democratic Outcomes Pty Ltd, was approved under section 468A of the Act. The Deputy President Hampton exercised the discretion in section 443(3A) to set the ballot closing date as 22 May 2025, which aligned with the period sought by the parties. The court also directed that a compulsory conciliation conference be held under section 448A of the Act.

An Order was issued separately, and the matter was assigned to another Member of the Commission to conduct the compulsory conciliation conference. This Member was also tasked with issuing an Order for the attendance of all bargaining representatives at the conference and issuing directions to ensure meaningful negotiations. The Deputy President Hampton concluded by issuing the Order for the protected action ballot to proceed as requested.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established