Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Gladstone Ports Corporation Limited

[2024] FWC 3243

[2024] FWC 3243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Gladstone Ports Corporation Limited

(B2024/1500)

COMMISSIONER HUNT BRISBANE, 22 NOVEMBER 2024

Proposed protected action ballot of employees of Gladstone Ports Corporation Limited

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of Gladstone Ports Corporation Limited (the Respondent).

1. Related applications have also been made in relation to employees of the Respondent by the CEPU Plumbing Division, the Australian Manufacturing Workers’ Union, the Australian Municipal, Administrative, Clerical and Services Union and the Australian Workers’ Union

1. On 21 November 2024, the Respondent advised that it objected to the application on the following bases:

1.   The Respondent sought a ballot period of 15 working days, while the ETU pressed a 10-working day ballot period.

2.   The Respondent requested that all correspondence sent by the ballot agent to employees be combined into a single communication for all related matters.

3.   The Respondent sought an additional subclause be inserted into the PABO providing for either the Respondent or the ETU to request details of the number of eligible employees on the roll of voters.

1. On 21 November 2024, I wrote to the parties, outlining a proposal for a 12-working day ballot period, with employee and member lists to be provided within 3 working days of the PABO being issued. I requested that the parties advise my chambers whether they were agreeable to my proposal. Absent agreement, I informed the parties that the matter would be listed for hearing on 22 November 2024.

1. Both the ETU and the Respondent wrote to my chambers on 21 November 2024 advising that they were agreeable to my proposal. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the statutory declaration of Mr Shawn Higgins, setting out the steps taken by the ETU in bargaining with the Respondent and confirming that the ETU has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.

1. I am satisfied that the ETU has given notice in accordance with section 440 of the Act.

1. For the purposes of s.443(3)(c) of the Act, the Fair Work Commission (the Commission) has determined that the date by which voting is to close in the ballot is 10 December 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. In respect of the Respondent’s request for an additional subclause to be inserted providing the Respondent or the ETU to request details of the number of eligible employees on the roll of voters, I have exercised my discretion not to include this in the order. I do not consider it is necessary to do so. If any of this information is sought in the s.448A conference, the provision of that information can be considered at that time.

1. The ballot is to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and is consequently authorised to conduct the ballot.[1] The scheme of the Act is now that where named in the PABO application and proposed orders, the Commission will, subject to the Act, be obliged to, in effect, appoint that eligible protected action ballot agent to conduct the ballot concerned.

1. The Order [PR781574] will be issued concurrently with this Decision.

1. This matter will be listed for a s.448A conference. An Order and Directions will be issued shortly requiring attendance at the conference.

COMMISSIONER

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

Printed by authority of the Commonwealth Government Printer

<PR781573>