Construction, Forestry and Maritime Employees Union v Strait Link Shipping Pty Ltd T/A Strait Link Shipping

[2023] FWC 3429

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry and Maritime Employees Union
v

Strait Link Shipping Pty Ltd T/A Strait Link Shipping

(B2023/1382)

DEPUTY PRESIDENT EASTON

SYDNEY, 20 DECEMBER 2023

Proposed protected action ballot of employees of Strait Link Shipping Pty Ltd.

An application was filed by the Construction, Forestry, Mining and Energy Union (CFMEU) pursuant to s.437 of the Fair Work Act 2009 (Cth) for a protected action ballot order in relation to certain employees of Strait Link Shipping Pty Ltd T/A Strait Link Shipping (Strait Link).

On 19 December 2023 Strait Link advised that it did not object to the application, however argued that the period of notice should be extended from the minimum 3 working days’ notice to 5 working days’ notice for specific forms of protected action as outlined in the draft order. Strait Link withdrew its argument the same day.

On the basis of the material before me, including the declaration of Mr Aarin Moon of the CFMEU 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 Strait Link, I am satisfied that there is a notification time in relation to the proposed agreement and that all the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s.468A of the Act (Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400) and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 19 January 2024 has been determined by the Commission.

An Order has been separately issued (PR769680).

The matter will be listed for a s.448A compulsory conciliation conference and an Order to Attend and Directions will be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for a protected action ballot order in relation to employees of Strait Link Shipping Pty Ltd. The CFMEU sought to conduct a ballot to authorise protected action by employees, a process that allows workers to take industrial action if certain conditions are met. Strait Link Shipping did not object to the application but initially argued for an extension of the notice period for the ballot. However, this argument was subsequently withdrawn. The Commission was required to consider whether the CFMEU had met the statutory requirements for a ballot and whether the timing and conduct of the ballot were appropriate.

The Deputy President of the Fair Work Commission, Easton, determined that the CFMEU had genuinely attempted to reach an agreement with Strait Link Shipping, satisfying the requirement of s.443(1) of the Fair Work Act 2009. The Commission also confirmed that the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was eligible to conduct the ballot, having been approved under s.468A of the Act. The ballot period was set for 19 January 2024, and a compulsory conciliation conference was scheduled to facilitate negotiations between the parties. The decision ensured that the ballot process would proceed as per the statutory framework while encouraging further dialogue between the employer and the union.

The Deputy President's decision granted the CFMEU's application for a ballot order, setting the ballot period for 19 January 2024. The Commission's ruling acknowledged the CFMEU's efforts to negotiate with Strait Link Shipping and authorised the use of CiVS as the ballot agent. The decision also scheduled a conciliation conference to support ongoing negotiations between the parties. This approach aimed to resolve the underlying issues and potentially avoid the need for industrial action. The final order ensured the ballot would be conducted in accordance with the Fair Work Act, while also providing a platform for the parties to engage in meaningful discussions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established