s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of Fleurieu Cranes 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 Fleurieu Cranes Pty Ltd (Fleurieu Cranes or Employer).

[2] On 5 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. The CFMEU initially maintained its proposed ballot period but later confirmed that it was seeking that the ballot close on 17 March 2026, being a period of 6 working days from the today. Fleurieu Cranes maintained its objection.

[3] In the circumstances, I conducted a hearing today to determine the matter. At the hearing I received material and evidence from the Director of Fair Vote Services Pty Ltd (Fair Vote), which has been named as the ballot agent, and from Mr Hera-Singh - Branch Executive Officer of the Applicant, and Mr Freer - Director of the Employer.

[4] Section 437 of the Act provides as follows:

"437 Application for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and

(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.

Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

(6) The application must be accompanied by any documents and other information prescribed by the regulations."

[5] Section 443 of the Act sets out the circumstances in which the Commission is required to make a PABO. It provides:

"443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;

(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable."

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[6] I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above are also not in dispute.

[7] On the basis of the material before me, including the declaration of Travis Hera-Singh 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 Fleurieu Cranes, 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.

[8] The ballot is to be conducted by 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.

[9] For the purposes of s.443(3)(c) of the Act, the Commission must determine the date by which voting is to close. This also establishes the ballot period for the purpose of s.448A(2) of the Act. The CFMEU sought the 17 March 2026 as the specific date for the ballot period to close, which would be in effect, a ballot period of 6 working days. This period was sought on various grounds including

• "The group to be ballot are highly organised members of the CFMEU who are aware of the making of the Application and ready to participate in the ballot, once it commences."
• "The ballot is to be an electronic ballot, meaning employees can easily and quickly participate in the ballot regardless of their rosters and patterns of work."
• "The ballot agent has provided a view that the ballot can be held in the timeframe sought by the CFMEU."
• "The CFMEU is available to attend a conference as arranged by the Commission at any time and any date before (14) March 2026. A conference can be conducted electronically and therefore before a member of the Commission in any State."

[10] The CFMEU also contended that its members were keen to take industrial action given what it asserted to be the differential remuneration across the Employer's workforce. I observe that this is not unique in matters of this kind.

[11] Fleurieu Cranes did not seek a specific period but sought that if the period "is less than the 'usual' ten (10) business days" it sought a "proper opportunity" to be heard on this issue. Fleurieu Cranes also submitted that the "short" period proposed by the CFMEU includes "a public holiday, a lockdown RDO and prebooked period of leave" including leave of its Director, which it contends is "critical to the required processes". It also contended that because the work group is large (approx. 180 employees), spread out across South Australia and includes a number of workers (approx. 50) who are in remote locations and/or FIFO workers, a number of whom will not be on their swing through most, if not all, of the proposed abridged period such that meaningful corresponding with and/or canvassing of workers in preparation for the conference would be challenging in such a short period. Finally, Fleurieu Cranes contended that CFMEU's most recent offer, which involved a substantially revised draft agreement, was only made on 27 February 2026, it would be materially prejudiced in properly preparing for, and meaningfully attending, the required compulsory conference in such a tight timeframe.

• [12] 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]

• [13] It is not necessary or appropriate, given the nature of the issue in dispute and this application,[5] to make detailed findings about the evidence in 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 6 working days period as sought by the CFMEU.

• The history of bargaining as demonstrated in the evidence, including the more recent developments such as the provision of an amended major projects appendix by the CFMEU on 10 February 2026 and the consolidated amended draft enterprise agreement on 27 February 2026, permitting the Employer some prior opportunity to prepare a response and consult employees on those proposals ahead of this application.

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

• The prior scheduled leave of Mr Freer (10 and 11 March 2026) and his role within the business and the negotiations.

• 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.

• [14] 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 19 March 2026. [6] This is the date that in this matter enables the ballot to be conducted as expeditiously as practicable. I have also provided for the parties to provide their relevant employee/member lists to the ballot agent within 3 working days[7] of the order in recognition of some of the circumstances outlined above and the fact that this does not of itself delay the length of the ballot period otherwise determined by the Commission.

[15] An Order has been separately issued in PR797437.

[16] 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.

D. Putland (with permission) with B. Freer for Fleurieu Cranes 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 of the Act.

[6] This is, in effect, 8 working days from the making of the Order.

[7] In lieu of the 2 working days proposed.

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