Construction, Forestry and Maritime Employees Union v DP World Australia Container Parks Pty Ltd

[2024] FWC 1278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

DP World Australia Container Parks Pty Ltd

(B2024/540)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 MAY 2024

Proposed protected action ballot of employees of DP World Australia Container Parks Pty Ltd

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 DP World Australia Container Parks Pty Ltd (DP World or Employer).

On 15 May 2024, the Commission was advised that the Employer 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 Shane Reside, Organiser, 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 DP World, 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 4 June 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 PR775058.

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] This is, in effect, fourteen (14) calendar days after the commencement of the ballot, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) filed an application under section 437 of the Fair Work Act 2009 to the Fair Work Commission for a protected action ballot order concerning certain employees of DP World Australia Container Parks Pty Ltd. The union sought to conduct a ballot for proposed protected action. The employer, DP World Australia Container Parks Pty Ltd, did not object to the application. The matter was decided by Deputy President Hampton in Adelaide on 16 May 2024.

The primary legal issue the court had to decide was whether the union had satisfied the requirements under section 443 of the Act to conduct a protected action ballot. This involved verifying that the union had genuinely attempted to reach an agreement with the employer and that the notification period for the proposed agreement was met. The court needed to ensure that all procedural requirements were fulfilled before granting the order for the ballot.

Deputy President Hampton determined that the union had met all the necessary requirements under section 443(1) of the Act, including the notification period for the proposed agreement and the union's genuine attempts to reach an agreement with the employer. The court also confirmed that the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was approved and authorised to conduct the ballot. The Deputy President set the closing date for voting on the ballot as 4 June 2024. Additionally, the matter will proceed to a compulsory conciliation conference under section 448A of the Act, overseen by another member of the Commission.

The court issued an order granting the union's application for a protected action ballot order. The ballot was scheduled to close on 4 June 2024, and the compulsory conciliation conference was set to be conducted under section 448A of the Act, with directions to ensure meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established