s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of BMS Heavy Cranes Australia 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 BMS Heavy Cranes Australia Pty Ltd (BMS or Employer).

• [2] On 26 March 2025, the Commission was advised that the Employer, in effect, did not object to the Application. I observe that BMS did clarify certain aspects of the negotiations which do not impact upon compliance with the statutory requirements to make the proposed order.

• [3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

• [4] On the basis of the material before me, including the declaration of Emma Barnes-Whelan, Lawyer, 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 BMS, 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.

• [5] The ballot is to be conducted by the Australian Electoral Commission.

• [6] 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 12 May 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [7] An Order has been separately issued in PR785556.

• [8] 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.

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

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