Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Shell Australia FLNG Pty Ltd

[2022] FWC 1646

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

Shell Australia FLNG Pty Ltd

(B2022/606)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 JUNE 2022

Proposed protected action ballot of employees of Shell Australia FLNG Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Shell Australia FLNG Pty Ltd (Respondent).

On 24 June 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Damian Clancey of the Applicant declared on 21 June 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR743095.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) lodged an application with the Fair Work Commission (the Commission) under section 437 of the Fair Work Act 2009 (the Act) for an order that would permit a ballot of certain employees of Shell Australia FLNG Pty Ltd (the Employer). The Union sought the order in order to determine whether the employees were in favour of protected action, as defined by the Act, in the context of industrial negotiations. The Employer did not oppose the application. Vice President Catanzariti was tasked with determining the matter on the basis of the material before the Commission.

The legal issue for determination was whether the Union had satisfied the criteria for a protected action ballot as stipulated in section 437 of the Act. Specifically, the Union needed to demonstrate that it had genuinely attempted to negotiate with the Employer and that a notification period had elapsed. The Union provided a statutory declaration from Damian Clancey, who attested to the steps taken in bargaining with the Employer and the Union’s genuine efforts to reach an agreement. The Commission was required to assess whether these efforts and the passage of time met the legislative requirements.

In determining the matter, Vice President Catanzariti examined the material before the Commission, including the statutory declaration from the Union. The Vice President found that the Union had indeed taken steps to negotiate with the Employer and had been genuinely attempting to reach an agreement. Furthermore, the Vice President was satisfied that a notification period had passed, fulfilling the requirements of section 443(1) of the Act. Consequently, the Vice President determined that the Union had met the criteria for a protected action ballot.

The Fair Work Commission granted the Union’s application and issued an order permitting the ballot. This decision allows the Union to proceed with the ballot to ascertain the employees' support for protected action in their ongoing negotiations with the Employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established