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

[2024] FWC 3052

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

(B2024/1428)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 5 NOVEMBER 2024

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

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 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 PR780944.

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, B2024/1429 and B2024/1430.

[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 (FWC) received an application from the Construction, Forestry and Maritime Employees Union (CFMEU) for a protected action ballot order under section 437 of the Fair Work Act 2009, concerning employees of Qube Ports Pty Ltd (Qube). The CFMEU sought to conduct a ballot to authorise industrial action in relation to its ongoing negotiations with Qube. Qube did not consent to the ballot but agreed to proceed on the existing material before the Commission. The CFMEU argued that all statutory requirements for a protected action ballot had been met, including a notification period and genuine efforts to reach an agreement.

The legal issues before the Deputy President involved determining whether the CFMEU had complied with the procedural requirements set out in the Fair Work Act for conducting a protected action ballot. Specifically, the court had to assess if the CFMEU had provided sufficient notice of the proposed agreement, demonstrated good faith in negotiations, and if the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was eligible to conduct the ballot. The Deputy President considered the declaration from the CFMEU's Divisional Deputy National Secretary, which outlined the union's bargaining efforts and the proposed notification period.

The Deputy President found that the CFMEU had satisfied all necessary conditions for the ballot, including the notification period and genuine negotiating efforts. Given the extensive history of ballot applications and grants in similar negotiations, the Deputy President concluded that the CFMEU had met the statutory requirements. The Commission set the closing date for voting as 28 November 2024, establishing the ballot period. Additionally, the Deputy President issued a separate order and assigned the matter to another member of the Commission for a compulsory conciliation conference to ensure meaningful negotiations.

The orders issued included a protected action ballot order for the CFMEU to conduct the ballot by CiVS, with voting to close on 28 November 2024. Furthermore, the Deputy President directed that a compulsory conciliation conference be held, requiring the attendance of all bargaining representatives.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established