Construction, Forestry and Maritime Employees Union v Veolia Environmental Services (Australia) Pty Ltd Summary

[2025] FWC 129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Veolia Environmental Services (Australia) Pty Ltd

(B2025/30)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 14 JANUARY 2025

Proposed protected action ballot of employees of Veolia Environmental Services (Australia) Pty Ltd

The Construction, Forestry and Maritime Employees Union (CFMEU or Applicant) has made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Veolia Environmental Services (Australia) Pty Ltd (Veolia or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] and the Australian Workers’ Union (AWU)[2] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

On 14 January 2025, I held a directions hearing, by telephone, during which the Employer advised that they did not object to the CFMEU’s 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 Anthony Dimitriou, 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 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 31 January 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783280.

I will conduct the s.448A compulsory conciliation conference in due course. An Order requiring the attendance of all bargaining representatives in relation to the proposed enterprise agreement will be issued along with directions ensuring that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2025/28.

[2] B2025/31

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) has applied for a protected action ballot order under section 437 of the Fair Work Act 2009, concerning certain employees of Veolia Environmental Services (Australia) Pty Ltd. The Fair Work Commission, presided over by Deputy President Saunders, examined this application. The CFMEU sought the order to facilitate a ballot of its members regarding proposed protected action. The matter was brought before the Commission after the Employer, Veolia, did not object to the application during a directions hearing held by telephone on 14 January 2025. The Commission decided to determine the application on the submitted documents without requiring an additional hearing.

The central legal issues the Court needed to resolve included whether the notification time for the proposed agreement had been met, and if the CFMEU had genuinely attempted to reach an agreement with the Employer as required by section 443(1) of the Act. The Deputy President also had to determine the closing date for voting in accordance with section 443(3)(c) of the Act. Additionally, the Commission had to confirm that the appointed ballot agent, Democratic Outcomes Pty Ltd (CiVS), was authorised to conduct the ballot under section 468A of the Act.

Upon reviewing the material, including a declaration from Anthony Dimitriou, the Organiser of the CFMEU, which detailed the union's bargaining efforts and commitment to reaching an agreement with Veolia, Deputy President Saunders concluded that all the statutory requirements for a protected action ballot order had been fulfilled. The declaration evidenced the union's genuine efforts to negotiate with the Employer. The Deputy President also set the closing date for voting as 31 January 2025, aligning it with the requirements of section 443(3)(c) of the Act. Consequently, the Commission granted the CFMEU's application for a protected action ballot order.

This decision was recorded in PR783279, and a separate order was issued in PR783280. The Deputy President further scheduled a compulsory conciliation conference under section 448A of the Act and directed the issuance of an order mandating the attendance of all bargaining representatives for the proposed enterprise agreement. These directions ensured that the parties would be prepared for meaningful negotiations at the conference.

Construction, Forestry and Maritime Employees Union v Veolia Environmental Services (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established