Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd

[2024] FWC 3051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Qube Ports Pty Ltd

(B2024/1430)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 5 NOVEMBER 2024

Proposed protected action ballot of employees of Qube Ports Pty Ltd (Port of Geraldton)

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 Qube Ports Pty Ltd (Qube or Employer). It was filed at the same time as four related applications involving the CFMEU and Qube.[1]

On 5 November 2024, the Commission was advised that the Employer does not consent to a protected action ballot order being granted in any of the five applications involving the CFMEU and Qube. However, in circumstances where the CFMEU has already applied for and been granted five protected action ballot orders in relation to its current negotiations with the Employer (albeit at different ports), the Employer advised that it was content for the Commission to deal with the Applications on the papers, on the basis of the material already before it.

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 and Statement of Warren Smith, Divisional Deputy National 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 Qube, 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 28 November 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 PR780942.

This matter and the related matters 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] B2024/1426, B2024/1427, B2024/1428 and B2024/1429.

[2] This is the date confirmed by the CFMEU in email correspondence to the Commission on 5 November 2024.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Construction, Forestry and Maritime Employees Union (CFMEU) for a protected action ballot order concerning certain employees of Qube Ports Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and it involved employees at the Port of Geraldton. The CFMEU sought the order to allow its members to vote on protected industrial action due to ongoing disputes in negotiations with Qube Ports. The application was part of a series of similar applications between the CFMEU and Qube Ports across different locations.

The legal issues before the Commission included whether the CFMEU had genuinely attempted to reach an agreement with Qube Ports, whether all procedural requirements under the Fair Work Act had been met, and if the proposed timing for the ballot was appropriate. The Commission had to determine if the conditions for a protected action ballot were satisfied, specifically under section 443 of the Fair Work Act. Additionally, the Commission had to establish a closing date for the ballot voting period, as per section 443(3)(c) of the Act, and ensure that the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was qualified and authorised to conduct the ballot.

The Deputy President found that the CFMEU had genuinely attempted to negotiate with Qube Ports and that all procedural requirements had been met. The Commission was satisfied that the notification period for the proposed agreement was in place, and all criteria under section 443(1) of the Fair Work Act were fulfilled. Given that Qube Ports had indicated it would not oppose the applications, the Deputy President decided to proceed with the determination on the provided documentation without a hearing. The closing date for the ballot voting was set as 28 November 2024. The matter and related applications were assigned to another member for the compulsory conciliation conference to facilitate further negotiations.

In conclusion, the Commission granted the CFMEU's application for a protected action ballot order. The ballot was to be conducted by CiVS, with voting closing on 28 November 2024. The Commission also assigned the matter to another member to organise a compulsory conciliation conference to encourage meaningful negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established