Application by Construction, Forestry, Maritime, Mining and Energy Union

Case •

[2023] FWC 349

•

13 FEBRUARY 2023
[2023] FWC 349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Application by Construction, Forestry, Maritime, Mining and Energy Union

(B2023/98)

DEPUTY PRESIDENT BINET

PERTH, 13 FEBRUARY 2023

Proposed protected action ballot of employees of OSM Australia Pty Ltd Trading As OSM

  1. On 9 February 2023 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cth) (FW Act).  The order is sought in relation to bargaining for an agreement to replace the OSM Australia Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2021 (Current Agreement).

  1. The CFMMEU seeks an order for a ballot to be conducted of employees of OSM Australia Pty Ltd (OSM) who covered by the Current Agreement who are represented by the CFMMEU or who are bargaining representatives for themselves but are members of the CFMMEU (Employees).

  1. On 10 February 2023 OSM indicated that it opposed the Application being granted. 

  2. The Application was allocated to my Chambers on Friday 10 February 2023 and listed for a conference and hearing on Monday 13 February 2023.

  1. Directions for the filing of materials in advance of the conference and hearing were issued to the parties on 10 February 2023 (Directions).

  2. At the conference held on 13 February 2022 the parties reached a consent position in relation to the order sought by the CFMMEU.

Evidence

  1. The Directions required the parties to file their witness evidence in chief in advance of the conference and hearing.

  1. OSM filed a witness statement setting out the evidence in chief of its witness Mr Jeff Summers the General Manager of OSM (Mr Summers). Mr Summers provided evidence in support of a request by OSM for the notice period for the purposes of section 414(2)(a) of the FW Act to be extended from three working days to seven working days.

  1. In support of the Application the CFMMEU filed a Form F34B – Declaration in support of an application for a protection action ballot dated 6 February 2023[1] and a supplementary witness statement dated 12 February 2023[2] by Mr George Gakis, Union Official at the Maritime Union of Australia Division of the CFMMEU (Mr Gakis).  The statutory declaration and witness statement set out Mr Gakis’s evidence with respect to the history of bargaining for an agreement to replace the Current Agreement (Proposed Agreement).

  1. The CFMMEU also filed a statutory declaration dated 2 September 2022[3] and a supplementary witness statement dated 12 February 2023[4] of Mr Michael Michael (Mr Micheal).  Mr Micheal is the managing director of the ballot agent that the CFMMEU propose conduct the ballot.  The statutory declaration and the witness statement set out Mr Micheal’s evidence in support of the appointment of Democratic Outcomes Pty Limited trading as CiVS (CIVS) as the ballot agent. 

  1. The parties were directed to joint prepare and file a digital court book containing the evidence and submissions of the parties (DCB).  Ultimately Chambers prepared the DCB.

  1. In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Consideration

  1. The FWC is obliged to issue a protected ballot order in the following circumstances:

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

a.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.

b.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).

c.A protected action ballot order must specify the following:

(a)   the name of each applicant for the order;

(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.

d.If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a)    the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

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

e.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, 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.”

  1. Section 437 of the FW Act relevantly provides as follows:

    “437 Application for a protected action ballot order

Who may apply 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:

(a)   a greenfields agreement; or

(b)   a multi‑enterprise agreement.

(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).

Matters to be specified in application

(3)       The application must specify:

(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.

(4)       If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5)       If 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

(b) either:

(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.

Documents to accompany application

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

  1. It is not in dispute that the CFMMEU has standing to make the Application in their capacity as a bargaining representative.

  1. The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.[5] 

  1. The notification time in relation to the Proposed Agreement is 17 November 2022.

  1. The Application specifies the group of employees who are to be balloted.[6] 

  1. The Application specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.[7]

  1. If an applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

  1. The CFMMEU seek the appointment of CIVS as the protected action ballot agent.[8] 

  1. Section 444 of the FW Act relevantly provides that:

“s.444 FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor

Alternative ballot agent

(1)   The FWC may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if:

(a)the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and

(b)the FWC is satisfied that:

(i)the person is a fit and proper person to conduct the ballot; and

(ii)any other requirements prescribed by the regulations are met.

(2)   The regulations may prescribe:

(a)conditions that a person must meet in order to satisfy the FWC that the person is a fit and proper person to conduct a protected action ballot; and

(b)factors that the FWC must take into account in determining whether a person is a fit and proper person to conduct a protected action ballot.”

  1. Regulation 3.11 of the Fair Work Regulations 2009 (Cth) (Regulations) provides that:

“3.11        FWC may decide on ballot agent other than the Australian Electoral Commission--requirements for protected action ballot agent

(1)   For subparagraph 444(1)(b)(ii) of the Act, this regulation sets out requirements that the FWC must be satisfied have been met before a person other than the Australian Electoral Commission becomes the protected action ballot agent for a protected action ballot.

Note:         The person must also be a fit and proper person to conduct the ballot.

(2)   The person must be capable of ensuring the secrecy and security of votes cast in the ballot.

(3)   The person must be capable of ensuring that the ballot will be fair and democratic.

(4)   The person must be capable of conducting the ballot expeditiously.

(5)   The person must have agreed to be a protected action ballot agent.

(6) The person must be bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot.

(7)   If the person is an industrial association or a body corporate, the FWC must be satisfied that:

(a)each individual who will carry out the functions of the protected action ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot; and

(b)the requirements in subregulations (2) to (6) are met for the individual.”

  1. The CFMMEU bears the onus of establishing that the statutory requirements for the appointment of CIVS have been met.

  1. The Application was accompanied by a statutory declaration by Mr Micheal.  The CFMMEU also filed a witness statement by Mr Micheal.[9]

  1. It is not in dispute and, based on the evidence before me, I am therefore satisfied that CIVS:

a.wishes to be the protected action ballot agent;

b.is a fit and proper person to conduct the ballot; and

c.that the requirements prescribed by the Regulations have been met.

  1. I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.

  1. The FWC may only make the order sought if the FWC is satisfied that CFMMEU has been, and is, genuinely trying to reach an agreement with OSM. The CFMMEU bears the onus of establishing this.[10]

  1. The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is”, imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.

  1. In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia the Australian Workers' Union[11] [12] the Full Bench stated:

“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. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad”  [13] (references omitted)

  1. In Total Marine Services Pty Ltd v Maritime Union of Australia[14]  [15] a Full Bench of Fair Work Australia relevantly stated:

“[31]     In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32]     We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”

  1. Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.

  1. The CFMMEU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date. 

  1. In all of the circumstances I am satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with OSM.

  1. The Application specifies the name of each applicant.[16]

  1. The parties agreed that the date by which the ballot should close shall be 14 days from the date that the ballot opens.

  1. Pursuant to section 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) requires three working days’ notice, or any longer period specified in the protection action ballot .

  1. OSM submits that if an order is to be made that the FWC should exercise its discretion to increase the subsection 414(2)(a) notice period of three working days.

  1. Section 443(5) of the FW Act provides that:

“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, the protected action ballot order may specify a longer period of up to 7 working days.”

  1. This requires consideration of:[17]

a.whether the circumstances are ‘exceptional’;

b.whether the ‘exceptional circumstances’ justify a requirement of notice longer than the statutory default; and

c.what the period of notice should be up to a maximum of seven days.

  1. The determination of whether the circumstances of a particular case are ‘exceptional’ involves an evaluative judgement of those circumstances. Circumstances may be “exceptional” if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare, or unexpected. For this purpose “circumstances” may include a combination of factors which together produce a situation which is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be “exceptional”.[18]

  1. Determining whether the “exceptional circumstances” justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.

  1. Having concluded that particular circumstances are exceptional and that they justify a requirement of a notice period longer than the statutory default a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be.[19]

  1. OSM provided evidence in support of its assertion that exceptional circumstances currently exist which justify a requirement for a longer notice period.  I am satisfied that the nature, and the potential impact, of the proposed industrial action in the present circumstances is such that exceptional circumstances do exist justifying the extension of the notice period.  In light of the evidence before me I have determined to exercise my discretion to grant an extension of the notice period.  I am satisfied that an extension of the notice period from three working days to five calendar days is appropriate in all the circumstances.

  1. Having been satisfied that the requirements of the FW Act have been complied with the CFMMEU application is granted and a protected action ballot order[20] shall be issued with this decision.

DEPUTY PRESIDENT


[1] Digital Court Book (DCB) 9-13.

[2] Ibid 33-36.

[3] Ibid 14-16.

[4] Ibid 37-62.

[5]  F34B – Declaration in support of an application for protected action ballot order dated 6 February 2023 (‘Gakis Declaration’) at Q1.3.

[6]  Form F34 – Application for a protected action ballot order dated 8 February 2023 (‘F34’) at Q2.1.

[7] F34 at Q2.2.

[8] Ibid Q3.2.

[9] DCB (n 1) 37.

[10] John Holland v AMWU[2010] FWAFB 526, [27].

[11] [2015] FWCFB 210.

[13] Ibid at [57].

[14] [2009] FWAFB 368.

[16] F34 (n 6).

[17] National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011 at [23]-[25].

[18] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848 at [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99 at [7]-[8].

[19] National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011 at [25].

[20] PR750434.

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