Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Victoria International Container Terminals Limited T/A Victoria International Container..

[2020] FWC 6988

[2020] FWC 6988

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
Victoria International Container Terminals Limited T/A Victoria International Container Terminals (VICT)
(B2020/848)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 22 DECEMBER 2020

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

[1] 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 (Act) for a protected action ballot order in relation to certain employees of Victoria International Container Terminals Limited T/A Victoria International Container Terminals (Respondent).

[2] On 21 December 2020, my Associate was advised that the Respondent wished to be heard about two matters relating to the application, including the notice period of any intended industrial action and the proposed forms of industrial action specified in some of the questions. On the same day, my Associate was advised that the Applicant and Respondent agreed the Applicant would provide an extended notice period of five working days and withdraw a number of the questions posed in the draft order. The Applicant filed an amended draft ballot order to reflect these changes. The Respondent subsequently advised my Associate that it was content for an order to be issued in the amended terms.

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

[4] On the basis of the material before me, including the declaration of Nathan Jenkins of the Applicant 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.

[5] The Applicant and Respondent agree that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days. The Respondent provided material directed to the circumstances that are said to justify a longer period. I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on an extended notice period of five working days for the proposed industrial action identified by the Order. Based on this, I am satisfied and exercise my discretion under s.443(5) to extend the notice period accordingly.

[6] An order has been separately issued in PR725754.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725753>