s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees - employer objection on basis that change in bargaining position meant that the applicant was not genuinely trying to reach agreement - employer objection on basis that applicant was seeking non-permitted matters - employer objection on basis that proposed questions lacked specificity - employer objections dismissed and order made

[1] This is an application by the Construction, Forestry and Maritime Employees Union through its Construction and General Division (CFMEU or Applicant) made under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order (the Order) in relation to certain employees of Wagstaff Piling Pty Ltd (Wagstaff or Employer).

[2] The application was filed with the Fair Work Commission by the CFMEU at approximately 3:10 p.m. on Monday 10 November 2025. Commission staff were advised that Wagstaff objected to the application, which was then allocated to my Chambers on Tuesday 11 November 2025. That afternoon, the application was listed for hearing at 10:00 a.m. on Wednesday 12 November 2025 and Wagstaff were directed to file and serve an outline of its objections by 9:00 a.m. on Wednesday 12 November 2025.

[3] The hearing commenced at 10:00 a.m. on Wednesday 12 November 2025 before me. Wagstaff had earlier filed and served a nine page outline of objections as directed (Wagstaff's Outline). Mr Dane Syron (Legal / Industrial Officer, CFMEU) appeared for the CFMEU. Mr Hamish Harrington (Senior Industrial Officer, Master Builders Association) appeared for Wagstaff. At the commencement of the hearing, Mr Harrington confirmed that Wagstaff's objections to the application were confined to the three objections set out in Wagstaff's Outline. In support of the application, the CFMEU called evidence from Mr Rebel Hanlon. Mr Hanlon is an Organiser with the CFMEU. Mr Harrington was given the opportunity to cross-examine Mr Hanlon. Mr Harrington elected not to cross-examine Mr Hanlon. Mr Harrington was also given the opportunity to call witness evidence. Mr Harrington elected not to call any witnesses, but rather relied upon Wagstaff's Outline and five documents, which were tendered and received into evidence.

[4] This decision determines the three objections raised by Wagstaff. I am conscious that section 441 of the FW Act requires that the Commission must, as far as practicable, determine the application within two working days after the application was made. In light of that requirement, my reasons are relatively brief. I have conducted the hearing and published this decision within approximately 24 hours of the matter being allocated to my Chambers.

First objection: late shift in CFMEU bargaining position means that CFMEU is not genuinely trying to reach agreement

[5] Section 443 of the FW Act provides that the Commission must make a protected action ballot order if the requirements are met. One such requirement is section 443(1)(b). The effect of that requirement is that the Commission must be satisfied that the CFMEU has been, and is, genuinely trying to reach an agreement with Wagstaff. An order cannot be made in the absence of such a state of satisfaction (section 443(2)).

[6] Wagstaff's first objection was that the CFMEU has not been, and is not, genuinely trying to reach an agreement with it. The basis for this argument was that Wagstaff contended that the CFMEU had fundamentally changed its position on wages after what was said to be an extended period of bargaining. Wagstaff's described this as a 'late shift' and a 'dramatic shift'. For the reasons explained below, I reject this objection.

[7] I am not satisfied on the evidence before me that the CFMEU has changed its position on wages. A declaration from Mr Hanlon was filed and served with the application. In his declaration, Mr Hanlon explained that it was his understanding that bargaining for a new enterprise agreement had been ongoing for some time before he became involved in those negotiations.[1] Mr Hanlon became involved in the negotiations with Wagstaff on or around 1 September 2025.[2] Prior to Mr Hanlon's involvement, it appears that the CFMEU had been represented at the bargaining table by CFMEU officials that have ceased employment with the CFMEU.[3] Oral evidence was adduced from Mr Hanlon by the CFMEU at the hearing. In giving such evidence, Mr Hanlon explained that Wagstaff had not informed him in writing that a deal or in-principle agreement had been reached with the CFMEU on wages. Mr Harrington elected not to cross-examine Mr Hanlon on that evidence or lead any evidence of his own challenging that evidence.

[8] In making this objection, Wagstaff sought to rely upon documents that it tendered. This included an email from Mr Anthony Burke (former official with the CFMEU) dated 12 May 2025.[4] Attached to Mr Burke's email was a document entitled 'Draft Piling Sector 2024-2027 - with audit clause - amendments at 7.5.25 - clean copy' (Draft Agreement 7.5.25).[5] It appears from Mr Burke's email that the CFMEU's position as an annual wage increase, at that time, was a 7% increase followed by a 5% increase in the second year of the agreement followed by a 5% increase in the third year. However, in the Draft Agreement 7.5.25, it would appear from Annexure B that the CFMEU's position as an annual wage increase, at that time, was a 7% increase followed by a 5% increase in the second year of the agreement (i.e. 1 July 2025) followed by a 5% increase in the third year (i.e. 1 July 2026) followed by a 5% increase in the fourth year (i.e. 1 July 2027) and a 3% increase for each year thereafter that the agreement remained in operation. I presume that Mr Burke made a mistake in his email by omitting the wage increase in the fourth year and then subsequent years. I highlight this point not to criticise Mr Burke or the CFMEU. Typos happen. I make this point to illustrate the difficulty that the Respondent faces in advancing this objection based upon a sample of documents only and without calling any evidence of its own, which may have provided a reliable evidentiary basis to find that the CFMEU had changed its position on wages.

[9] Wagstaff sought to compare the wage increases in Mr Burke's email and the Draft Agreement 7.5.25 to another document that it tendered, which was given the file name 'Annexure D - Draft Piling Sector 2024-2027 - with audit clause - amendments at 14.8.25 clean copy' (Draft Agreement 14.8.25).[6] The wage rates in Annexure B of the Draft Agreement 14.8.25 are higher than the wage rates in Annexure B of the Draft Agreement 7.5.25 in the second year, third year and fourth year. However, the author or contributors to the Draft Agreement 14.8.25 were not identified at the hearing nor was there any evidentiary basis to ground a finding that the wages rates in Annexure B of the Draft Agreement 14.8.25 could be said to evidence the position of the CFMEU.

[10] I am not persuaded on the evidence before me that the CFMEU has changed its position on wages during bargaining. Put simply, the objection should have been underpinned by a proper evidentiary basis, such as calling witness evidence. The making of a protected action ballot order is a step towards employees and their unions taking protected industrial action in support of their claims during bargaining. The taking of protected industrial action is an important right conferred by the FW Act upon employees to advance their claims. I am not prepared to make a finding that the CFMEU has not been, and is not, genuinely trying to reach agreement based upon submissions from the virtual bar table and a sample of documents, some of which fail to evidence the position of the CFMEU.

[11] A Full Bench of the Commission in Esso Australia Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers" Union[7] held:

[57] Whether an applicant 'has been, and is, genuinely trying to reach an agreement' is a question of fact to be decided having regard to all of the facts and circumstances of the particular case.

[12] Wagstaff did not argue that a change in bargaining position would always be inconsistent with the requirements of section 443(1)(b). Clearly, any such argument would be at odds with Full Bench authority and would be rejected. Wagstaff's argument was specific to the facts of this application. It is fatal to Wagstaff's first objection that the facts simply do not support the objection. I reject Wagstaff's first objection.

Second objection: inclusion of non-permitted matters

[13] Wagstaff's second objection was that the CFMEU were pursuing three claims that were said to be non-permitted matters. It was argued that these claims meant that the Commission could not be satisfied that the CFMEU has been, and is, genuinely trying to reach an agreement.

[14] The first clause was referred to as clause 24.1(c). It is reproduced below:

The use of sham subcontracting arrangements is a breach of this Agreement. The Company who engages subcontractors is responsible for ensuring the employees of subcontractors are entitled to wages, allowances and conditions equal to or better than Commercial Building Industry Rates covering the type of work performed by the subcontractor and its employees on the Company's projects. This obligation extends to liability for all outstanding wages conditions and entitlements under this agreement.

[15] The second clause was referred to as clause 24.3. It is reproduced below:

(a) The Company must ensure that no person that is not an Australian citizen, or Australian permanent resident (within the meaning of the Migration Act 1958), or unrestricted work rights, is employed to undertake building work unless:

(i) the position is first advertised in Australia; and

(ii) the advertising was targeted in such a way that a significant proportion of suitably qualified Australian citizens and Australian permanent residents would be likely to be informed about the position; and

(iii) any skills or experience requirements set out in the advertising were appropriate to the position; and

(iv) the Company demonstrates that no Australian citizen or Australian permanent resident is suitable for the job.

(b) The Company will ensure all Employees are lawfully entitled to work in Australia performing work under the Agreement.

(c) The Company will maintain Human Resource systems (including utilising the Visa Entitlement Verification Online (VEVO) system on an ongoing basis) to ensure that temporary foreign Employees are at all times employed in accordance with the conditions of their visas.

[16] The third clause was referred to as clause 25.1(b)(iv). It is reproduced below:

Any use of sham contracting, including the use of individual workers paid on an ABN _system doing work covered by this Agreement, is a breach of this Agreemen_t.

[17] The Full Bench in Esso considered the same argument made by Wagstaff. The Full Bench held:

[59] There is no legislative warrant for the adoption of a decision rule such that if an applicant is, or has been, pursuing a substantive claim which is not about a permitted matter it is not genuinely trying to reach an agreement within the meaning of s.443(1)(b). The fact that an applicant is, or has been, pursuing a claim about a non-permitted matter is relevant to whether the test posited by s.443(1)(b) has been met, but it is not determinative of the issue. A range of factual considerations may potentially be relevant in that context, including but not limited to the subject matter of the claim, the timing of the advancement of the claim, the basis upon which the claim is advanced, the significance of the claim in the course of the negotiations, the claimant's belief as to whether the claim is about a non-permitted matter or not, where there is legal clarity about the permitted status of the claim, whether the other party has placed in contest whether the claim is about a permitted matter, and whether such a claim has been withdrawn and, if so, when and in what circumstances. The diversity of the factual circumstances and nuances which will be found in different cases means that it is not possible to say that any particular factor or consideration will always be determinative of the result...

[64] The adoption of a construction of s.443(1)(b) which would require the Commission to scrutinise each of the claims advanced by the applicant to determine whether they are about permitted matters is inconsistent with the object of Division 8 of Part 3-3 and the scheme of the FW Act.

[18] In considering the second objection, I have applied the principles explained by the Full Bench in Esso. In particular, I do not intend to scrutinise each of the three claims and determine whether they are about the permitted matters. As explained by the Full Bench in Esso at [64], I am not required to engage in such an exercise - which as the Full Bench pointed out at [63] in Esso does not reflect the legislative intent that applications for a protected action ballot order are to be determined and heard quickly. Rather, I am required to approach the question posed by section 443(1)(b) by considering all of the facts and circumstances relevant to this application.

[19] The Full Bench in Esso at [59] set out some factual considerations that may be relevant in this context. It appears that bargaining has been ongoing for many months, if not longer.[8] In the few months that Mr Hanlon has been involved in bargaining, there have been seven bargaining meetings.[9] Throughout the many months of bargaining, Wagstaff did not put the CFMEU on notice that it considered that these three claims were about non-permitted matters. As much was conceded by Mr Harrington at the hearing. It appears the first time the CFMEU became aware that Wagstaff considered these three claims to be non-permitted matters was after filing the application for a protected action ballot order. I also note the uncontested evidence of Mr Hanlon,[10] which establishes the CFMEU's belief that it was not pursuing any unlawful or non-permitted matters. In those circumstances, I do not think it can be said that the CFMEU has not been, and is not, genuinely trying to reach agreement if the employer has not even identified these issues during bargaining and the CFMEU's belief expressed through its official is that it was not pursuing unlawful or non-permitted matters. Those factual considerations along with the balance of material put before me led me to reject the second objection.

[20] I have considered the first objection and the second objection separately and in combination, and with the totality of the material that was put before me. Based on that material, I am satisfied that the CFMEU has been, and is, genuinely trying to reach an agreement with Wagstaff.

[21] The legislative requirements in relation to the question/s are found at section 437(3)(b) & 443(3)(d) of the FW Act. It is a requirement that the application and any order must specify 'the question or questions to be put to the employees who are to be balloted, including the nature of the protected industrial action'.

[22] The question included in the application and sought in the order is reproduced below:

In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by CFMEU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the actions set out below:

1. An unlimited number of stoppages on the performance of work between 30 minutes and up to and including 24 hours?

1. An unlimited number of indefinite or periodic bans on overtime?

1. An unlimited number of indefinite or periodic partial work bans?

[23] Wagstaff's third objection only concerned questions 2, 3 & 4. It was argued that those questions lacked any clear indication as to duration. On that basis, it was argued that those questions lacked the specificity required by section 437(3)(b) & 443(3)(d) of the FW Act.

[24] A Full Bench of the Commission in National Tertiary Education Union v Curtin University[11] considered the legislative requirements in relation to the question or questions to be put to the employees in the ballot and held:

[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been "made under section 437" for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered "yes" or "no" by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling "informed consent" goes beyond the text of the provision and constitutes a gloss on the statute. The concept of "informed consent" is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement43 and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued). We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.

[54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole.45 It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.

[25] In considering the third objection, I have applied those principles. I am satisfied that the questions contained in the application and proposed to be included in the order specifies questions that are capable of being answered 'yes' or 'no' by the employees participating in the ballot. The action proposed is clearly action that is capable of constituting industrial action within the meaning of section 19(1) of the FW Act. The questions are expressed and can be understood in ordinary industrial English. As explained by the Full Bench, that is the extent of the consideration required. I reject the third objection.

[26] There was no contest that the other requirements specified in the FW Act have been satisfied. On the basis of the material before me, I am satisfied those requirements have been met.

[27] 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.

[28] The date by which voting is to close is 26 November 2025, which is ten working days from the date of the order. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[29] An Order has been separately issued in PR793689.

[30] A Member of the Commission will conduct the s.448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives for 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] Paragraphs 1 - 6 of the Form F34B - Declaration in support of an application for a protected action ballot order completed by Rebel Hanlon dated 10 November 2025 (Hanlon Declaration).

[2] Paragraph 4 of the Hanlon Declaration.

[3] Paragraph 5 of the Hanlon Declaration.

[7] [2015] FWCFB 210.

[8] Paragraph 6 of the Hanlon Declaration.

[9] Paragraph 7 of the Hanlon Declaration.

[10] Paragraph 9 of the Hanlon Declaration.

[11] [2022] FWCFB 204.

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