s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of Crane Services Pty Ltd - non-AEC ballot 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 Crane Services Pty Ltd (Crane Services or Employer).

[2] On 6 March 2026, the Commission was advised that the Employer did not object to the Application, but did object to the length of the ballot period proposed by the CFMEU - being that the ballot would close on 14 March 2026. The CFMEU subsequently provided an amended draft order in which it proposed that the ballot would conclude on 19 March 2026. The Employer maintained that the ballot period should be 10 working days after any order; being, 24 March 2026, and it sought to be heard.

[3] In the circumstances, I conducted a hearing today to determine the matter.

[4] On the basis of the material before me, including the declaration of Travis Hera Singh, Branch Executive Office, 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 Crane Services, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.

[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. This also establishes the ballot period for the purpose of s.448A(2) of the Act. The CFMEU revised position proposed, in effect, a 7 working day period. It contended that the ballot is to be done expeditiously as practicable, the ballot itself will be held electronically and could readily be undertaken in that period, and that Crane Services have not submitted evidence that would justify a longer period or which suggests they would be unavailable to attend a section 448A Conference as required.

[7] Crane Service did not seek a specific period but raised concerns regarding the CFMEU's proposed ballot period being less than the "usual 10 business day ballot period". It submitted that that any less that the 10 business days would "materially prejudice the Company [Crane Services] ability to review the matters raised by the CFMEU", "Communicate with employees across workforce", and "Meaningfully participate in any conference or further processes before the Commission".

• [8] A Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd[1] (CEPU v Nilsen), considered the approach to be adopted by the Commission in establishing the ballot period. Amongst other matters, the Full Bench confirmed:

• • "The Commission must determine the ballot period in each case as a matter of discretion and is not bound to grant the date proposed in the application and draft order, or that proposed by the employer."[2]

• • "Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. This focuses attention on the process of conducting the ballot. "Expeditiously" connotes quickly and efficiently and the notion of "practicable" means that something can be done or put into practice successfully. This provision does not require the Commission to ensure that the ballot closes as quickly as possible." [3]

• • "There are a range of case specific considerations, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and the ballot process itself, that are or maybe relevant to the exercise of the discretion to set the ballot period. Within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot period is also a relevant statutory context and consideration in setting that period. This is reinforced by the potential consequences of non-attendance by a bargaining representative at such a conference, the legislative purpose of s.448A within the scheme of the Act, and the practical consequences of arranging and conducting the conference at which all bargaining representatives can attend and fully participate and where the Commission can deploy the range of dispute resolution techniques contemplated by the Act."[4]

• [9] It is not necessary or appropriate, given the nature of the issue in dispute and this application,[5] to make detailed findings about the circumstances of this matter. I have had regard to all of that material and afforded it weight having regard in particular to where that evidence was in the form of a sworn statement. I have also taken into account all of the submissions and without addressing all of the considerations arising here, these have included:

• The capacity for the ballot agent to properly conduct this form of ballot within the amended period as sought by the CFMEU.

• The history of bargaining as demonstrated in the evidence.

• The nature, size and circumstances of the employee cohort and the business of the Employer.

• The need for the Commission to provide proper notice and some preparation time to the bargaining representatives for the s.448A compulsory conciliation conference, noting that there are no other bargaining representatives in the matter beyond those appearing in the hearing.

• The capacity for the Commission to properly convene the s.448A conference within the ballot period. I observe that whilst this is only one of the considerations relevant to making this determination, the particular exigencies of the Commission at this juncture bear upon the practicality of an earlier ballot period and make it desirable that the full second week of the period be available to the Commission and the parties.

• [10] Having regard to all of the circumstances of this matter, including the positions and particular situation of the parties, and the various other considerations outlined in CEPU v Nilsen, I have determined that for the purposes of s.443(3)(c) of the Act, the date by which the voting in the protected action ballot in this matter is to close is 20 March 2026. This is the date that in this matter enables the ballot to be conducted as expeditiously as practicable.[6] I have also provided for the parties to provide their relevant employee/member lists to the ballot agent within 2 working days of the order as discussed with the parties during the conference.

[11] An Order has been separately issued in PR797443.

[12] 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.

M. Leikina and T. Hera-Singh for the Construction, Forestry and Maritime Employees Union.

J. Love (with permission) and A Munckton for Crane Services Pty Ltd.

[1] [2023] FWCFB 134.

[2] CEPU v Nilsen at [53], [58] and [79].

[5] Which must be determined within 2 working days as far as is practicable. - s.441 Fair Work Act 2009.

[6] Section 443(3A) Fair Work Act 2009.

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