Construction, Forestry and Maritime Employees Union v SC Hydro Pty Ltd

[2025] FWC 1168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

SC Hydro Pty Ltd

(B2025/664)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 28 APRIL 2025

Proposed protected action ballot of employees of SC Hydro 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 SC Hydro Pty Ltd (SC Hydro or Employer) that are currently covered by the SC Hydro Pty Ltd - AWU Tunnel and Associated Works Greenfield Agreement 2021 – 2025.

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Workers’ Union (AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 28 April 2025, the Commission was advised that the Employer, objected to the Application. A hearing was conducted. Following the hearing the objection was withdrawn.

On the basis of the material before me, including the declaration of Mark Cross, NSW State 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 it, I am satisfied 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.

The Employer raised a concern about the eligibility of the CFMEU to represent certain occupations of employees who are proposed to be covered by the proposed agreement. During the hearing the CFMEU, without making any concessions as to the extent of its eligibility rule capacity, gave the following undertaking:

The CFMEU will not include employees employed in the following occupations in the protected ballot list: dogman, riggers, storepersons, laboratory labourers and rockbolters.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that voting is to close 12 working days from the date of this order on 14 May 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR786476.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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

Appearances:
Mr P Boncardo, Counsel for the Applicant
Mr J Noakes, Solicitor for the Respondent

Hearing details:

Sydney
28 April 2025

[1] Respectively, B2025/662, B2025/663 and B2025/667

Printed by authority of the Commonwealth Government Printer

In the matter of Construction, Forestry and Maritime Employees Union versus SC Hydro Pty Ltd, the Fair Work Commission was asked to consider an application by the CFMEU for a protected action ballot order. This order would allow the CFMEU to conduct a ballot among certain employees of SC Hydro Pty Ltd who are covered by the SC Hydro Pty Ltd - AWU Tunnel and Associated Works Greenfield Agreement 2021 – 2025. The dispute involved the eligibility of the CFMEU to represent certain occupations of employees in the proposed agreement. The application was opposed by the employer but the opposition was later withdrawn.

The legal issues before the Commission involved the requirements of s.443 of the Fair Work Act 2009, specifically whether the CFMEU had genuinely tried to reach an agreement with the employer, and whether the union was eligible to represent the employees in question. The employer's concern was addressed when the CFMEU undertook not to include certain occupations in the ballot list. The Commission had to determine whether the CFMEU had met all the requirements under s.443(1) of the Act.

The Deputy President, Slevin, found that all the requirements under s.443(1) of the Act had been met, including the genuine attempt to reach agreement and the steps taken in bargaining. The eligibility of the CFMEU was affirmed, except for the specified occupations that would not be included in the ballot. The Commission set the closing date for the ballot and issued an order for a compulsory conciliation conference. Another Member of the Commission would oversee the conference and issue further directions as necessary.

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