| [2024] FWC 2410 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry and Maritime Employees Union
v
Australian Port Services (NSW) Pty Ltd T/A Ausport Marine
(B2024/1145)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 5 SEPTEMBER 2024 |
Proposed protected action ballot of employees of Australian Port Services (NSW) Pty Ltd T/A Ausport Marine
This is an application by the Construction, Forestry and Maritime Employees 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 Australian Port Services (NSW) Pty Ltd T/A Ausport Marine (Ausport Marine or Employer).
On 4 September 2024, the Commission was advised that the Employer, in effect, did not object to 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 declaration of Brad Dunn, Branch Assistant 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 Ausport Marine, 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.
The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.
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 24 September 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR778979.
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 in 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] This is, in effect, 20 calendar days from the date of Order and was the period sought in the application.
Printed by authority of the Commonwealth Government Printer
<PR778980>
- AGLC
- Construction, Forestry and Maritime Employees Union v Australian Port Services (NSW) Pty Ltd T/A Ausport Marine [2024] FWC 2410
- Case
- [2024] FWC 2410
- Decision Date
CaseChat Overview and Summary
The legal issues addressed by the court involved confirming that the union had genuinely attempted to negotiate with the employer and that all statutory requirements for a protected action ballot were met. The court had to ascertain whether the notification period for the proposed agreement was adequate and whether the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was appropriately approved to conduct the ballot. Additionally, the Deputy President needed to establish a closing date for the ballot, ensuring it complied with the statutory provisions.
The Deputy President concluded that the union had indeed been making genuine efforts to reach an agreement with the employer. All prerequisites outlined in section 443(1) of the Act were satisfied. The ballot was scheduled to be managed by CiVS, which had been recognised as an eligible agent under section 468A of the Act. Consequently, the Deputy President set 24 September 2024 as the closing date for voting, effectively establishing the ballot period in accordance with section 448A(2) of the Act. The matter was then assigned to another Member of the Commission for a compulsory conciliation conference, with directives to be issued to ensure effective negotiations between the parties.
An order was issued separately in PR778979, and the matter was reassigned to another Commission member for the compulsory conciliation conference. This member would subsequently issue an order mandating the attendance of all bargaining representatives at the conference, along with likely directions to facilitate meaningful negotiations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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