Construction, Forestry and Maritime Employees Union v Pilbara Ports Authority

[2025] FWC 2229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 437—Protected action

Construction, Forestry and Maritime Employees Union
v

Pilbara Ports Authority

(B2025/1196)

COMMISSIONER LIM

PERTH, 30 JULY 2025

Proposed protected action ballot of employees of Pilbara Ports 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 Pilbara Ports Authority (Pilbara Ports or Employer).

On Tuesday 29 July 2025, the Commission was advised that the Employer does 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 Mr Joel O’Brien, MUA North West Regional 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 Pilbara Ports, 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 Wednesday 13 August 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 PR790199.

The parties will receive directions from my Chambers regarding a compulsory conciliation conference under s 448A of the Act.

COMMISSIONER

Determined on the papers.

[1] This is, in effect, 14 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 Fair Work Commission was asked to decide on an application by the Construction, Forestry and Maritime Employees Union (CFMEU) for a protected action ballot order in relation to certain employees of Pilbara Ports Authority. The CFMEU applied for the order under section 437 of the Fair Work Act 2009. The Commission was informed that Pilbara Ports Authority did not oppose the application, and Commissioner Lim decided to determine the matter on the papers without holding a hearing. The Commission determined that the application met all the requirements of section 443(1) of the Act, and that Democratic Outcomes Pty Ltd (CiVS) was approved to conduct the ballot. The Commission set Wednesday 13 August 2025 as the closing date for voting, and issued a separate order in PR790199. The parties will also receive directions from the Commissioner's Chambers regarding a compulsory conciliation conference under section 448A of the Act.

The primary legal issue before the Commission was whether the CFMEU had satisfied the requirements of section 443 of the Act to be granted a protected action ballot order. The Commission considered the declaration of Mr Joel O’Brien, MUA North West Regional Organiser, which outlined the steps taken by the CFMEU in bargaining with Pilbara Ports Authority and that the union had been genuinely trying to reach agreement with the employer. The Commission was satisfied that there was a notification time in relation to the proposed agreement, and that all the requirements of section 443(1) of the Act had been met. The Commission also determined that CiVS was an approved ballot agent under section 468A of the Act, and authorised to conduct the ballot.

The Commission determined that the application met the requirements of section 443 of the Act, and granted the CFMEU a protected action ballot order. The Commission set Wednesday 13 August 2025 as the closing date for voting, and issued a separate order in PR790199. The parties will also receive directions from the Commissioner's Chambers regarding a compulsory conciliation conference under section 448A of the Act. The Commission determined the matter on the papers, and did not hold a hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established