Construction, Forestry and Maritime Employees Union v Smit Lamnalco Towage (Australia) Pty Ltd

[2024] FWC 3278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Smit Lamnalco Towage (Australia) Pty Ltd

(B2024/1537)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 NOVEMBER 2024

Proposed protected action ballot of employees of Smit Lamnalco Towage (Australia) 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 Smit Lamnalco Towage (Australia) Pty Ltd (Smit or Employer).

On 25 November 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 Dave Lyon, Queensland Assistant 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 Smit, 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 12 December 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 PR781668.
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] This is, in effect, 14 calendar days from the anticipated commencement of the ballot and was the period 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 for a protected action ballot order concerning employees of Smit Lamnalco Towage (Australia) Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. Smit did not object to the application, leading the Commission to determine the matter without a hearing. The CFMEU's declaration, which detailed its efforts to reach an agreement with Smit, was considered, and it was found that all conditions under section 443(1) of the Act were satisfied. The ballot agent, Democratic Outcomes Pty Ltd, was approved under section 468A of the Act.

The primary legal issue was whether the CFMEU had met the requirements to conduct a protected action ballot. This included establishing the notification period and confirming that all prerequisites under section 443 of the Act had been fulfilled. The Commission found that the CFMEU had genuinely attempted to negotiate and that the employer's lack of objection supported the grant of the ballot order. Additionally, the closing date for voting was set at 12 December 2024, which aligns with the 14-day period sought by the CFMEU. The Commission also scheduled a compulsory conciliation conference under section 448A of the Act, aiming to facilitate meaningful negotiations between the parties.

The Fair Work Commission determined that the CFMEU's application met the necessary legal criteria for a protected action ballot. The Deputy President, Clancy, concluded that the CFMEU had genuinely engaged in bargaining efforts with Smit and that all procedural requirements were satisfied. Consequently, the Commission granted the ballot order, allowing the CFMEU to proceed with the proposed ballot. The Commission further established the voting period and scheduled a conciliation conference to encourage further negotiations between the parties. The decision was made in accordance with the relevant sections of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established