Construction, Forestry, Maritime, Mining and Energy Union the Maritime Union of Australia Division v Strait Link Shipping Pty Ltd T/A Strait Link Shipping

[2023] FWC 857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
v

Strait Link Shipping Pty Ltd T/A Strait Link Shipping

(B2023/331)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 APRIL 2023

Proposed protected action ballot of employees of Strait Link Shipping Pty Ltd Trading As Strait Link Shipping

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Strait Link Shipping Pty Ltd (Respondent).

On 6 April 2023, my Associate was advised that the Respondent 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 Mr Jason Campbell of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M 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. I am satisfied 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.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR760978.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, Maritime Union of Australia Division, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order permitting a protected action ballot among the employees of Strait Link Shipping Pty Ltd. Strait Link Shipping Pty Ltd did not oppose the application, and the matter was determined on the papers. The application sought to have Democratic Outcomes Pty Ltd trading as CiVS appointed as the ballot agent, rather than the Australian Electoral Commission, which Strait Link Shipping Pty Ltd also did not oppose. The Deputy President was satisfied that CiVS was a fit and proper person to conduct the ballot, and that the secrecy and security of the votes could be ensured.

The legal issues before the Deputy President were whether the statutory requirements for a protected action ballot had been met, and whether CiVS was a suitable agent to conduct the ballot. The Deputy President found that the requirements of section 443(1) of the Act had been met, as the Union had genuinely tried to reach an agreement with the employer. The Deputy President was satisfied that CiVS was a fit and proper person to conduct the ballot, and that Mr Michael and CiVS were capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously.

The Deputy President concluded that CiVS was a suitable agent to conduct the ballot, and that Mr Michael and CiVS were bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. The Deputy President appointed CiVS as the protected action ballot agent, and an order was issued separately.

This decision is a straightforward application for a protected action ballot order and the appointment of a ballot agent. The application was unopposed by the employer, and the Deputy President was satisfied that the requirements for the ballot had been met. The Deputy President also found that CiVS was a suitable agent to conduct the ballot, and that Mr Michael and CiVS were capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established