Construction, Forestry and Maritime Employees Union v Auriga Pilots Melbourne Pty Ltd

[2024] FWC 980

[2024] FWC 980

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Auriga Pilots Melbourne Pty Ltd

(B2024/440)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 16 APRIL 2024

Proposed protected action ballot of employees of Auriga Pilots Melbourne Pty Ltd

1. This is an application by the Construction, Forestry, Mining and Energy Union (CFMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Auriga Pilots Melbourne Pty Ltd (Auriga or Employer).

1. On 15 April 2024, the Commission was advised that the Employer did not, in effect, object to the Application subject to there being an extended notice period of five (5) days in relation to the proposed forms of industrial action. This was subsequently agreed by the CFMEU along with other minor amendments to the Proposed Order.[1]

1. 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 declaration of David Ball, Victorian Assistant Branch Secretary, setting out the steps taken by the CFMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Auriga, 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.

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act[2] and consequently is authorised to conduct the ballot.

1. 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 30 April 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. Pursuant to section 443(5) of the Act, I am satisfied that there are relevant exceptional circumstances justifying the period of written notice referred to in section 414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified five (5) working days as the minimum period of written notice required in respect of the proposed industrial action taken by employees arising from the ballot questions in Clause 5 of the Order.

1. I have included the Commission’s standard preamble within Clause 5 of the Order.

1. An Order has been separately issued in PR773521.

1. This matter will 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 for 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.

DEPUTY PRESIDENT

[1] On 16 April 2024, the Commission consulted with the parties in relation to the extended period of notice and form of wording contained within Clause 14 of the proposed order. The Commission proposed to amend Clause 14 to refer to the relevant statutory provisions. The Respondent agreed to the Commission’s proposed amendment to Clause 14. No objection was raised by the Applicant.

[2] [2023] FWC 1400.

[3] The Application sought for the ballot to be open for a period of 14 days from the commencement date of the ballot. This date reflects a ballot of 14 days from the commencement date of the ballot.

Printed by authority of the Commonwealth Government Printer

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