v SC Hydro Pty Ltd

[2025] FWC 1163

[2025] FWC 1163

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

(B2025/665)

DEPUTY PRESIDENT SLEVIN SYDNEY, 28 APRIL 2025

Proposed protected action ballot of employees of SC Hydro Pty Ltd

1. 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 S C Hydro Pty Ltd -AWU and CFMMEU Surface Works Greenfield Agreement 2021 - 2025.

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

1. 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 Following the hearing the objection was withdrawn.

1. 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 SC Hydro. I am satisfied that that all of  the requirements in s.443(1) of the Act have been met.

1. 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.

1. 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 in the list of employees to be provided to the protected action ballot agent employees in the occupations of: rigger, dogman, rock bolters, storepersons, or laboratory labourers.

1. 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 14 May 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR786460.

1. 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, B2025/659 and B2025/669 B2025/671.

[2] This is, in effect, 12 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR786459>