Construction, Forestry and Maritime Employees Union v R.M Williams Pty Ltd Summary

[2025] FWC 638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

R.M Williams Pty Ltd

(B2025/313)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 4 MARCH 2025

Proposed protected action ballot of employees of R.M Williams Pty Ltd

This is an application by the Construction, Forestry and Maritime Employees Union acting through its Manufacturing Division (CFMEU MD 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 R.M Williams Pty Ltd (R.M Williams or Employer).

On 3 March 2025, the Commission was advised that the Employer, in effect, did not object to the Application, as amended to deal with various matters, including some inconsistencies between the original application and the proposed order.

I observe that the format of some of the ballot questions as resolved between the parties is problematic given the introductory wording of clause 5. However, as the questions state action that is capable of being industrial action within the meaning of the Act, these are matters primarily for the Applicant.

In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of David Kirner, South Australian District Secretary – CFMEU Manufacturing Division, 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 R.M Williams, 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 Australian Electoral Commission (AEC).

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 16 April 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 PR784923.

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, 30 working days from the making of the Order, which is the minimum period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union, through its Manufacturing Division, applied to the Fair Work Commission for a protected action ballot order concerning employees of R.M Williams Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, seeking authorisation for a ballot to take place regarding potential industrial action. The employer, R.M Williams Pty Ltd, indicated they did not oppose the application, which was subsequently amended to address various issues, including discrepancies between the original application and the proposed order. The primary focus of the application was to ensure that the conditions for a protected action ballot were met, as stipulated by the Act.

The Commission was tasked with determining whether the requirements for a protected action ballot were satisfied, particularly focusing on the procedural aspects outlined in section 443 of the Act. This included verifying that the union had genuinely attempted to reach an agreement with the employer and that the ballot questions were appropriately framed. The Deputy President Hampton noted that while there were some issues with the format of the ballot questions, these were primarily the union's responsibility. Given the employer's lack of objection and the union's declaration of their efforts in bargaining, the Deputy President found that all necessary conditions were met for proceeding with the ballot.

Upon reviewing the submitted materials, including the declaration by David Kirner, the Deputy President Hampton concluded that the union had genuinely attempted to reach an agreement with the employer. Consequently, the Deputy President granted the application for a protected action ballot order. The ballot was to be conducted by the Australian Electoral Commission, with the voting period closing on 16 April 2025, which allowed for the minimum period required by the Commission to conduct the ballot. Additionally, the matter was assigned to another member of the Commission for a compulsory conciliation conference, aimed at facilitating further negotiations between the parties. This decision established the procedural framework for the upcoming ballot and negotiations.

Construction, Forestry and Maritime Employees Union v R.M Williams Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established