s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Proposed protected action ballot of employees of Whittens 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 Whittens Pty Ltd (Whittens or Employer). The Commission understands that the parties are negotiating for an instrument to replace the Whittens Pty Ltd Snowy Hydro Pty Ltd AWU and CFMEU Surface Works Greenfield Agreement 2024-2025.

• [2] I note that the Australian Workers' Union (AWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed agreement.

[3] On 7 February 2026 and 8 February 2026, the Commission was advised that both the Employer and AWU objected to the application on the grounds that the CFMEU are not 'entitled' or 'eligible' to represent certain occupations of employees who are to be covered by the proposed agreement.

[4] In the circumstances, I scheduled a hearing to be conducted today to determine the matter. In the lead up to the hearing, the parties continued constructive discussions and ultimately reached a consent position. I have therefore decided to determine the matter on the papers.

[5] On the basis of the material before me, including the declaration of David Kelly, NSW State 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 Whittens, 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 Parties agreed for the Applicant to provide the following undertaking, to be noted in the Decision, as follows:

Without making concessions to eligibility, the CFMEU undertakes to only include the following classes of workers in its ballot list. Foreman or Subforeman who are qualified trade carpenters, Crane Drivers, trade qualified carpenters, concrete pump operators and any persons employed who can be eligible under rule 2(e) of the CFMEU rules.

[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 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 24 February 2026.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[9] An Order has been separately issued in PR796607.

[10] This matter will be assigned to a Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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.

[2] 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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