Australian Institute of Marine and Power Engineers, Construction, Forestry and Maritime Employees Union, Australian Maritime Officers' Union v T-Ports Pty Ltd

[2025] FWC 123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Institute of Marine and Power Engineers, Construction, Forestry and Maritime Employees Union, Australian Maritime Officers' Union
v

T-Ports Pty Ltd

(B2025/44)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 14 JANUARY 2025

Proposed protected action ballot of employees of T-Ports Pty Ltd

This is an application by the Australian Institute of Marine and Power Engineers (AIMPE), Construction, Forestry and Maritime Employees Union (CFMEU) and Australian Maritime Officers’ Union (AMOU) (collectively, the Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of T-Ports Pty Ltd (T-Ports or Employer).

On 14 January 2025, the Commission was advised that the Employer, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the separate declarations of Nathan Niven, Senior National Organiser (AIMPE), Brett Larkin, Branch Secretary (CFMEU) and Tracey Ellis, Acting Executive Officer (AMOU), setting out the steps taken by the Applicants in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with T-Ports, 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.

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.

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 3 February 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783257.

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.

DEPUTY PRESIDENT

[1] This is, in effect, 14 calendar days from the anticipated commencement of the ballot (the first working day after the provision of the employee/member lists) and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Institute of Marine and Power Engineers, Construction, Forestry and Maritime Employees Union, and the Australian Maritime Officers' Union applied for a protected action ballot order in relation to certain employees of T-Ports Pty Ltd. The unions sought the order under section 437 of the Fair Work Act 2009. T-Ports did not object to the application, and the matter proceeded without a hearing. The Deputy President was satisfied that the unions had genuinely tried to reach an agreement with the employer and that the requirements for a protected action ballot were met. The Deputy President also approved the date for closing the ballot, determining it to be 3 February 2025, and assigned the matter for a compulsory conciliation conference under section 448A of the Act.

The legal issues before the Deputy President were whether the unions had genuinely attempted to reach agreement with the employer and whether they had met all the requirements for a protected action ballot. The Deputy President found that the unions had genuinely tried to reach agreement and that all requirements were met, including the notification period and the appointment of an authorised ballot agent. The Deputy President also considered the appropriate date for closing the ballot, ensuring it complied with the statutory timeframe and the period sought in the application.

The Deputy President determined that the unions had satisfied all the conditions for a protected action ballot order. The unions had genuinely tried to reach an agreement with T-Ports, and all statutory requirements were fulfilled. The Deputy President set the closing date for the ballot as 3 February 2025, ensuring it complied with the legal timeframes. The Deputy President also assigned the matter for a compulsory conciliation conference to facilitate further negotiations between the parties. This decision provided clarity on the procedural aspects of the ballot and set the stage for future negotiations.

In conclusion, the Deputy President issued an order granting the unions' application for a protected action ballot order. The ballot was to be conducted by Democratic Outcomes Pty Ltd, an approved ballot agent. The closing date for voting was set as 3 February 2025. The matter was also assigned for a compulsory conciliation conference to be conducted under section 448A of the Fair Work Act 2009. This order ensures that the ballot process proceeds in accordance with the law and that the parties are directed to engage in meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established