s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of Access Solutions (Tasmania) Pty Ltd - AEC ballot

• [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 (PABO) in relation to certain employees of Access Solutions (Tasmania) Pty Ltd (Access Solutions or Employer).

• [2] On 12 December 2025, the Commission was advised that the Employer objected to the Application on the basis that it is a duplication of a PABO application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] in relation to the same workers and proposed enterprise agreement.

• [3] In reply, the CFMEU acknowledged the CEPU application. The CFMEU contended that the CEPU application was only applicable to CEPU members and that it has been instructed by the CFMEU members employed by Access Solutions that they have not received any ballot documents pursuant to the CEPU application. The CFMEU also said that it has been instructed by the CEPU that the CEPU did not include any CFMEU members in its ballot. The CFMEU therefore has maintained its application, confirmed that it is genuinely seeking to make an enterprise agreement, and seeks that the order be made in the proposed terms.

• [4] The parties were given an opportunity to be further heard on the application but neither sought to do so. In the circumstances, I dealt with the application based on the materials that were before the Commission and did not hold a hearing.

• [5] In my view, the Employer's objection was based on a misunderstanding of the process undertaken by the ballot agent. That process involves the employer providing a list of its employees covered by a proposed enterprise agreement to the ballot agent and the union applicant providing a list of its members covered by a proposed enterprise agreement to the ballot agent. By comparing these lists, the ballot agent verifies that the union members provided by the union applicant are employees of the employer and then compiles a list of employees to be balloted on this basis. Where more than one union is involved in bargaining for a proposed agreement and makes a PABO application, it will be necessary for the employer to provide a list of its employees covered by the proposed agreement in respect of each separate application.

• [6] In the application before me, the Employer appears to erroneously believe that because it has provided a list of all of its employees covered by the proposed agreement to the AEC in the CEPU ballot, either all of its employees are CEPU members or the PABO applied for by the CEPU also covered CFMEU members. The material before me establishes that neither of these scenarios is correct. That material, including the declaration of Justin Go, Industrial Officer, setting out the steps taken by the CFMEU in bargaining with the Employer establishes that it has been, and is, genuinely trying to reach agreement with Access Solutions. I am therefore 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.

• [7] The ballot is to be conducted by the Australian Electoral Commission (AEC).

• [8] 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 29 January 2026.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [9] An Order has been separately issued in PR794986.

• [10] 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.

[2] This is, in effect, 30 working days from the making of the Order and is the minimum period required by the AEC.

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