Construction, Forestry and Maritime Employees Union v SeaRoad Shipping Pty Ltd Summary

[2024] FWC 1469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

SeaRoad Shipping Pty Ltd

(B2024/718)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 JUNE 2024

Proposed protected action ballot of employees of SeaRoad Shipping 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 SeaRoad Shipping Pty Ltd (SeaRoad or Employer).

On 4 June 2024, the Commission was advised that the Employer, in effect, 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 Adrian Evans, Assistant 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 SeaRoad, 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 26 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 PR775659.

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) days from the anticipated date the ballot opens, 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) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of SeaRoad Shipping Pty Ltd. The application was made to facilitate a proposed industrial action ballot. SeaRoad did not object to the application, leading the Deputy President to determine the matter based on the documents submitted without holding a hearing. The CFMEU provided a declaration from Adrian Evans, the Assistant National Secretary, detailing the union's efforts to negotiate with SeaRoad and affirming that the union had genuinely tried to reach an agreement. The ballot was to be conducted by Democratic Outcomes Pty Ltd (CiVS), which is approved as a ballot agent under section 468A of the Act.

The key legal issue before the court was whether the requirements under section 443(1) of the Act for a protected action ballot order were met. The Deputy President found that all the statutory conditions were satisfied based on the declaration and other material submitted. The Deputy President also set a closing date for the ballot, which was determined to be fourteen days from the anticipated date the ballot opens. Additionally, the matter was to be assigned to another member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act. This conference aimed to ensure meaningful negotiations between the parties.

In conclusion, the Deputy President granted the CFMEU's application for a protected action ballot order, determining that all statutory requirements were met. The ballot was to be conducted by CiVS, and a closing date of 26 June 2024 was established for the ballot. The matter was further referred for a compulsory conciliation conference to facilitate negotiations between the union and SeaRoad. An order was issued to this effect, and the case was assigned to another member of the Commission for the conciliation conference.

Construction, Forestry and Maritime Employees Union v SeaRoad Shipping Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established