Construction, Forestry and Maritime Employees Union v Cape Preston Port Company Pty Ltd

[2024] FWC 3185

[2024] FWC 3185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Cape Preston Port Company Pty Ltd

(B2024/1482)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 NOVEMBER 2024

Proposed protected action ballot of employees of Cape Preston Port Company Pty Ltd

1. 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 Cape Preston Port Company Pty Ltd (CPPC or Employer).

1. On 18 November 2024, the Commission was advised that the Employer, in effect, did not object to the Application subject to confirmation of there being an extended notice period of four (4) calendar days, but no less than three (3) working days in relation to the proposed forms of industrial action. The CFMEU, in effect, accepted that there were relevant exceptional circumstances and agreed to that amendment.

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 George Gakis, Union Official, 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 CPPC, 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 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.

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

1. An Order has been separately issued in PR781378.

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 4 calendar days but not less than 3 working days as the minimum period of written notice required in respect of the industrial action taken by employees arising from the ballot questions in clause 5 of the Order.

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 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, 21 calendar days from the anticipated commencement date of the ballot and was the period sought in the application.

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