s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of BR & I Pty Ltd - non-AEC ballot agent electronic voting

• [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 BR & I Pty Ltd (BR &I or Employer).

• [2] I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)[2] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

• [3] On 5 November 2025, the Commission was advised that the Employer, in effect, did not object to the Application.

• [4] In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

• [5] I observe that the parties also agreed for the CFMEU to give the following undertaking as part of the subsequent notification of protected industrial action to the Employer:

During periods of notified industrial action, employees taking the protected action will comply with a direction from BR & I Pty Ltd (Ventia) to return to work to perform work in response to an unexpected event that, in the opinion of BR & I Pty Ltd (Ventia), creates a serious and imminent threat to safety, if the following conditions are met:

(a) The work cannot reasonably be performed by anyone else on or near the work site; and

(b) The work must be performed immediately in response to an emergency event; and

(c) During the duration of the notified industrial action, an employee will only resume work to the extent necessary to avert the serious or imminent threat to safety.

As soon as reasonably practicable after a direction to return to work is given, but in any event within 24 hours, BR & I Pty Ltd (Ventia) will provide to any employee directed to respond to an Emergency Event a written notice containing a brief description of the Emergency Event and an explanation as to how the direction complied with subclauses (a) to (c) above.

Should BR & I Pty Ltd (Ventia) or the CFMEU believe that the other party is not acting consistently with the above exclusions, the party may apply to the Fair Work Commission for assistance in resolving the issue.

• [6] On the basis of the material before me, including the declaration of Kyle Sinclair, 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 BR & I, 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.

• [7] 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.

• [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 18 November.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [9] An Order has been separately issued in PR793507.

• [10] 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.

[3] This aligns with the ballot closure of the related matters.

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