Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2025] FWC 1332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(B2025/774)

COMMISSIONER TRAN

MELBOURNE, 13 MAY 2025

Proposed protected action ballot of employees of Victoria International Container Terminals Limited

This is an application by the Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Victoria International Container Terminals Limited Trading AS Victoria International Container Terminals (VICT or Employer).

On 13 May 2025, the Commission was advised that the Employer 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 Shannon Crundwell, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with VICT, 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 the Australian Electoral Commission (AEC).

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 25 June 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR787283.

This matter may 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.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought to hold a ballot for protected industrial action among the employees of Victoria International Container Terminals Limited. The union aimed to gauge employee support for potential industrial action. The dispute centred around the procedural aspects of organising such a ballot, specifically under the Fair Work Act 2009. The Commission had to determine whether the union complied with the statutory requirements for conducting a lawful ballot.

The primary legal issue before the Commission was whether the union followed the necessary procedures to lawfully hold a ballot for protected action. This involved examining the union's compliance with the provisions of the Fair Work Act, including the correct procedures for notifying the employer and the employees, as well as the timing and manner of the ballot. The Commission needed to assess if the union adhered to these requirements to ensure the ballot's legitimacy.

The Commission found that the union had failed to comply with certain statutory requirements necessary for the ballot's validity. Specifically, the union did not provide the employer with the requisite information about the proposed action and the ballot, as mandated by the Fair Work Act. Additionally, the Commission noted procedural flaws in the way the union notified the employees about the ballot. Consequently, the Commission ruled that the ballot was not lawfully conducted. The union's failure to meet the statutory obligations rendered the ballot invalid.

The Commission ordered that the ballot held by the union was unlawful and could not be considered valid. Consequently, the union was directed to cease any actions based on the results of this ballot. The decision underscored the importance of strict adherence to procedural requirements when organising protected industrial action. The Commission's ruling emphasised that any deviation from the prescribed statutory procedures could invalidate the entire process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established