Construction, Forestry and Maritime Employees Union v Newcastle Port Corporation T/A Port Authority of New South Wales Summary

[2024] FWC 3402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Newcastle Port Corporation T/A Port Authority of New South Wales

(B2024/1594)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 DECEMBER 2024

Proposed protected action ballot of employees of Newcastle Port Corporation T/A Port Authority of New South Wales

This is an application by the Construction, Forestry and Maritime Employees Union acting through its Maritime Union of Australia Division (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 Newcastle Port Corporation T/A Port Authority of New South Wales (Newcastle Port Corporation or Employer).

On 5 December 2024, the Commission was advised that the Employer, in effect, did not object to the Application, as amended.[1]

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 Paul Garrett, Deputy 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 Newcastle Port Corporation, 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 20 December 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR782124.

The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

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] The CFMEU provided an amended draft order updating clauses 4 and 8.2.2 to accommodate the ballot agent’s availability and correcting the Respondent’s name in clause 6.2.

[2] This is, in effect, 10 working days from the making of the order and was the date sought in the amended application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union, through its Maritime Union of Australia Division (CFMEU), sought an order under section 437 of the Fair Work Act 2009 from the Fair Work Commission (FWC) for a protected action ballot. The proposed ballot concerned employees of the Newcastle Port Corporation, trading as the Port Authority of New South Wales. The Newcastle Port Corporation did not object to the application, and the matter proceeded without a hearing. The CFMEU had demonstrated its efforts to reach an agreement with the employer and had satisfied the notification time requirement and other conditions under section 443(1) of the Act.

The legal issues before the FWC centred on whether the CFMEU had met all the necessary statutory requirements to hold a protected action ballot. This included verifying the notification time for the proposed agreement and confirming that the CFMEU genuinely sought to reach an agreement with the employer. Additionally, the court had to determine the closing date for voting, as stipulated under section 443(3)(c) of the Act. The FWC also needed to approve the ballot agent, Democratic Outcomes Pty Ltd (CiVS), to ensure it met the criteria set out in section 468A of the Act.

The Deputy President, Hampton, found that the CFMEU had fulfilled all the requirements to hold a protected action ballot. The notification time was confirmed, and the CFMEU's genuine efforts to reach an agreement were accepted. The FWC approved CiVS as the ballot agent and set the voting closing date as 20 December 2024. This date also defined the ballot period for the purpose of section 448A(2) of the Act. The Commission then assigned the matter to another member for a compulsory conciliation conference to facilitate negotiations between the parties.

An order was issued to conduct the ballot, with the final order structure amended to align with the FWC's standard template. Additionally, another order was issued to ensure all bargaining representatives attended the conciliation conference and were prepared for meaningful negotiations. This conference aimed to resolve the disputes and potentially avoid the need for a ballot.

Construction, Forestry and Maritime Employees Union v Newcastle Port Corporation T/A Port Authority of New South Wales

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established