Australian Workers' Union v Gladstone Ports Corporation Limited

[2024] FWC 3248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Gladstone Ports Corporation Limited

(B2024/1521)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 NOVEMBER 2024

Proposed protected action ballot of employees of Gladstone Ports Corporation Limited

This is an application by the Australian Workers’ Union (AWU 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 Gladstone Ports Corporation Limited (Gladstone Ports or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Plumbing Division (CEPU-PPTEU), the CEPU’s Electrical, Energy and Services Division (CEPU-ETU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Mining and Energy Union (MEU)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 22 November 2024, 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 declaration of Craig Sell, Central District Secretary, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Gladstone 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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 11 December 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

An Order has been separately issued in PR781583.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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] B2024/1500, B2024/1503, B2024/1504, B2024/1518 and B202/1524, respectively.

[2] This is, in effect, 12 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) made an application to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Gladstone Ports Corporation Limited. The application was made in relation to a proposed enterprise agreement, with other unions having made similar applications. The FWC determined the matter based on the papers provided, as Gladstone Ports did not object to the application. The FWC was satisfied that the AWU had genuinely attempted to reach an agreement with Gladstone Ports, fulfilling the requirements of section 443(1) of the Act.

The legal issues before the FWC involved whether the AWU had met the criteria for a protected action ballot order, including the notification period and the genuine efforts in bargaining. The FWC also needed to determine the closing date for the ballot and ensure that it aligned with the statutory requirements. Additionally, the FWC had to confirm that Fair Vote Services Pty Ltd was an approved ballot agent, authorized to conduct the ballot under section 468A of the Act.

After reviewing the submissions and evidence, the FWC found that the AWU had indeed satisfied the prerequisites for a protected action ballot order. The FWC set the closing date for voting on the proposed agreement as 11 December 2024, which also established the ballot period. The decision also included adjustments to the structure of the draft order to comply with the FWC's standard template. The matter was assigned to another FWC member to conduct the compulsory conciliation conference, where all bargaining representatives would be required to attend and engage in meaningful negotiations.

The FWC issued an order in the case, separate from the conciliation conference order, ensuring all procedural aspects of the ballot were appropriately managed. This decision reflects the FWC's role in facilitating fair and lawful industrial processes, balancing the rights of employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established