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

CaseChat Overview and Summary

The Federal Court of Australia presided over the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Victoria International Container Terminals Limited T/A Victoria International Container. The dispute centred on a proposed industrial action ballot by employees of Victoria International Container Terminals Limited, aiming to potentially disrupt services. The union sought to validate the ballot process and the proposed action, while the employer contested the validity and legality of the ballot.

The primary legal issue before the court was whether the union had correctly followed the necessary procedures for conducting a protected action ballot, as required by the Fair Work Act. This included ensuring that the ballot was conducted in a manner that complied with the Act's provisions and that it was held for a lawful purpose. The court also needed to determine if the employer's objections to the ballot were justified and whether any aspects of the ballot process contravened the legal framework governing industrial action in Australia.

In reaching its decision, the court examined the procedural requirements set forth by the Fair Work Act and considered the evidence presented by both parties. The union argued that the ballot was properly conducted and lawful, while the employer raised several objections, including issues with the ballot notice and the process itself. The court found that the union had not strictly adhered to all procedural requirements, leading to the conclusion that the ballot was invalid. As a result, the court ruled in favour of the employer, determining that the proposed industrial action ballot was not legally valid.

The court's final orders included a declaration that the proposed ballot was invalid due to procedural non-compliance with the Fair Work Act. The court also enjoined the union from proceeding with the ballot and any related industrial action based on the invalid ballot. This decision reinforced the importance of strict adherence to legislative requirements in conducting protected action ballots in Australia.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established