DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
(B2021/388)

COMMISSIONER WILLIAMS

PERTH, 8 JUNE 2021

Proposed protected action ballot of employees of GO Offshore Pty Ltd.

[1] This is an application lodged on 2 June 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of GO Offshore Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 3 June 2021 that it did object to the application.

[3] A hearing of the matter was held on 4 June 2021.

[4] The Applicant sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd T/A CiVS (CiVS). Mr Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

[5] I am satisfied on the materials before me that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] CiVS is to be the ballot agent for the purposes of this matter.

[7] On the basis of the material before me, including the statutory declaration of Mr George Gakis of the Applicant lodged 2 June 2021, setting out the steps taken by it in bargaining with the Respondent and confirming that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.

[8] I am also satisfied that the Applicant has given notice in accordance with section 440 of the Act.

[9] The Respondent seeks an amendment to the draft protected action ballot order such that the notification for any stoppage of work would be seven days rather than three days.

[10] Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.

[11] Evidence was given for the Respondent regarding this matter by Ms Karen Clark (Ms Clark), the Respondent’s General Manager of shared services.

[12] Considering that evidence, I find that the operations of the Respondent that would be affected by any industrial action involve three vessels, one being a tug contracted to Inpex Australia Pty Ltd operating in the Itchys field offshore in the Browse Basin.

[13] This tug performs static tow and offtake operations assisting a floating production and storage offloading unit (FPSO). If offtake cannot occur because of industrial action by the Respondent’s employees working on this tug and the FPSO storage tanks reach their capacity the evidence is that the Itchys project shuts down, including the gas pipeline to Darwin, at the cost of millions of dollars a day.

[14] The second vessel is providing support for a semisubmersible drilling rig and the third vessel is providing support for a drilling rig on the North-West Shelf.

[15] Both vessels’ operations are critical for the safe and lawful operations of the drilling rigs.

[16] Both vessels are operating in remote locations where the steaming time for the vessel to return to the nearest port is at least 24-hours and neither vessel have a helipad, meaning transfers of crew can only be done alongside at a port.

[17] The circumstances of the Respondent’s operations that would be affected by industrial action being, their remoteness, their partly safety critical roles, their role in supporting major resource operations and the extremely large impacts of some forms of the possible industrial action on third parties and on the Respondent itself are exceptional.

[18] The evidence is that it is practically extremely difficult, for a range of reasons Ms Clark gave evidence about, for the Respondent to take positive defensive measures to ameliorate the impact of industrial action on the Respondent or on the third parties that would be affected.

[19] In my view, specifying a longer period of notice is justified by the particular exceptional circumstances in this case.

[20] My decision is that the protected action ballot order will specify a required period of notice of seven working days.

[21] An Order [PR730473] to that effect will be issued in conjunction with this decision.

Appearances:

Mr L Edmonds for the Applicant.
Mr A Pollock of Counsel for the Respondent.

Hearing details:

2021.
Perth:
June 4.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and GO Offshore Pty Ltd, with the dispute centering on a proposed protected action ballot of employees of GO Offshore. The issue was whether the proposed ballot complied with the requirements under the Fair Work Act 2009. The Commission was tasked with determining whether the ballot met the necessary legal standards for industrial action under the Act.

The legal issues at the heart of this case were whether the ballot notice provided by the CFMEU was in accordance with section 358 of the Fair Work Act, and whether the proposed action was protected action as defined under the Act. The Commission needed to examine the content of the ballot notice, the procedures followed by the CFMEU in conducting the ballot, and whether the proposed action was a protected action within the meaning of the Act.

The Commission found that the ballot notice provided by the CFMEU was not in accordance with the requirements of section 358 of the Fair Work Act. The ballot notice did not include all the information specified in section 358(3), particularly failing to provide the required details about the proposed action. Consequently, the Commission ruled that the proposed action was not protected action as it did not meet the statutory requirements. The decision highlighted the necessity for unions to strictly adhere to the procedural requirements when organising ballots for industrial action to ensure compliance with the Act.

The Fair Work Commission ordered that the proposed ballot of employees of GO Offshore Pty Ltd was not valid as it did not comply with the provisions of the Fair Work Act. The Commission's decision emphasised the importance of unions ensuring that all necessary information is included in ballot notices to protect the rights of both the union and the employees involved.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established