Construction, Forestry and Maritime Employees Union v Flinders Logistics Pty Ltd

[2024] FWC 1626

[2024] FWC 1626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Flinders Logistics Pty Ltd

(B2024/797)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 21 JUNE 2024

Proposed protected action ballot of employees of Flinders Logistics 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 Flinders Logistics Pty Ltd (Flinders Logistics or Employer).

1. On 20 June 2024, the Commission was advised that the Employer, in effect, did not object to the Application, as amended.[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 Brett Larkin, Divisional 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 it, 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 3 July 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of five (5) calendar days, but not less than three (3) working days, applies to any protected industrial action authorised by the ballot.

1. An Order has been separately issued in PR776281.

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] Flinders Logistics sought the inclusion of an extended notice period clause. The CFMEU subsequently amended the application to include the above provision.

[2] This is, in effect, 7 days from the anticipated Commencement Date of the ballot, as sought in the Application.

Printed by authority of the Commonwealth Government Printer

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