Construction, Forestry and Maritime Employees Union v Sarens (Australia) Pty Ltd

[2025] FWC 1028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Sarens (Australia) Pty Ltd

(B2025/623)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 11 APRIL 2025

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

On 10 April 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 Kyle Sinclair, 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 Sarens, 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 30 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 PR786042.

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, 10 working days from the making of the Order and was the period consented to by the Applicant.

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 against Sarens (Australia) Pty Ltd (Sarens) under section 437 of the Fair Work Act 2009. The application was heard by Deputy President Hampton in the Fair Work Commission on 11 April 2025. The employer did not object to the application, leading the Commission to determine the matter on the papers without a hearing. The ballot, which aims to facilitate industrial action, is intended to be conducted by Democratic Outcomes Pty Ltd (CiVS), a certified agent under section 468A of the Act. The key legal issues for the Commission to resolve were whether the notification period for the proposed agreement had been met and if all conditions specified in section 443(1) of the Act had been satisfied.

The Deputy President examined the materials provided, including a declaration by Kyle Sinclair, an organiser for the CFMEU, which detailed the union's efforts to reach an agreement with Sarens. The declaration affirmed that the union had been genuinely attempting to negotiate. Based on these submissions and the evidence of good faith negotiations, the Deputy President concluded that the notification period for the proposed agreement was valid and that all statutory requirements under section 443(1) had been fulfilled. The decision also set the closing date for voting in the ballot as 30 April 2025, which aligns with the 10 working days from the issuance of the order, as agreed by the CFMEU. This decision paved the way for the compulsory conciliation conference, which would be overseen by another member of the Commission.

The final orders issued by the Deputy President included the approval of the ballot period and the appointment of a date for the compulsory conciliation conference. The ballot was to be conducted by the certified agent, CiVS, and the conference aimed to facilitate meaningful negotiations between the parties involved. Additionally, the matter was assigned to another member of the Commission for the conciliation conference, and directions were likely to be issued to ensure the parties were prepared to negotiate effectively. The orders also referenced a separate order issued in PR786042, indicating a coordinated approach to resolving the dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established