s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of Cape Flattery Silica Mines 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 Cape Flattery Silica Mines Pty Ltd (Cape Flattery Silica 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 made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

• [3] On 15 April 2025, the Commission was advised that the parties had reached a consent position in relation to the inclusion of a clause setting out an agreed position on exemptions that would apply during any period of industrial action and an extended notice period for taking protected industrial action.

• [4] In the circumstances, I have decided to amend the application to reflect the consent position reached and otherwise determined the matter on the papers without holding a hearing.

• [5] On the basis of the material before me, including the declaration of Paul Dunbar, Industrial Relations Co-Ordinator, 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 Cape Flattery Silica, 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.

• [6] The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [7] 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 2 May 2025.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The minimum extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order.

• [9] An Order has been separately issued in PR786137.

• [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 is, in effect, 10 working days from the making of the Order and was the period sought in the application.

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