Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd

[2025] FWC 223

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Qube Ports Pty Ltd

(B2025/153)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 JANUARY 2025

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

On 22 January 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 Warren Smith, Divisional Deputy National 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 Qube, 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 7 February 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 PR783622.

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, 15 calendar days or 9 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU or Applicant) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Qube Ports Pty Ltd (Qube or Employer). The application was made under section 437 of the Fair Work Act 2009, and the matter was decided without a hearing as the employer did not object. The CFMEU sought to conduct a ballot to potentially engage in protected industrial action due to ongoing negotiations with Qube. The Commission was satisfied that all requirements under section 443(1) of the Act had been met, including the notification time for the proposed agreement and the genuine efforts of the CFMEU to reach an agreement with Qube.

The legal issues before the Commission included whether the CFMEU had complied with all statutory requirements for a protected action ballot and if the timing and conduct of the ballot were appropriate. The Commission had to consider the declaration from Warren Smith, the Divisional Deputy National Secretary, which detailed the union's bargaining steps and its efforts to reach an agreement with Qube. Furthermore, the Commission had to ensure the ballot was conducted by an approved agent, Democratic Outcomes Pty Ltd (CiVS), in accordance with section 468A of the Act.

Upon reviewing the material, Deputy President Hampton concluded that all statutory conditions were met, and the CFMEU had genuinely attempted to negotiate with Qube. The Commission granted the application and determined the closing date for the voting period as 7 February 2025. This date established the ballot period for subsequent conciliation proceedings under section 448A(2) of the Act. Additionally, the matter was assigned to another Commission member for a compulsory conciliation conference to facilitate meaningful negotiations between the parties. An order was issued for the conference, requiring the attendance of all bargaining representatives in the proposed enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established