DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
v
Sydney International Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Ltd and Brisbane Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Ltd
(B2018/1115)

COMMISSIONER CAMBRIDGE

SYDNEY, 14 DECEMBER 2018

Proposed protected action ballot of employees of Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Ltd & Brisbane Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Ltd.

[1] The following is an edited extract of an ex-tempore Decision made in the course of a Hearing conducted on Wednesday, 12 December 2018, regarding this matter:

THE COMMISSIONER: I think in the circumstances it is appropriate that I make an ex tempore determination of this matter.

Firstly, to the extent that it is necessary, any rule or other technical requirements relevant so as to enable the variation to the protected action ballot order to proceed before the Commission, are waived. Secondly, the email communication dated 5 December 2018, from the Australian Electoral Commission to the chambers of Sams DP is treated as an application made under section 447(2) of the Act.

Having considered all of the material put before me, in the circumstances, and although it is very regrettable that the Australian Electoral Commission has failed to appear in support of its application, the Commission is prepared to vary the protected action ballot order as requested by the Australian Electoral Commission. The proposed variation represents the most practical outcome which would enable a protected action ballot to be conducted in a manner which is least likely to lead to any further contest, other litigation or challenge.

Consequently, the variation order shall be made and issued accordingly. On that basis, the proceedings stand adjourned.

[2] This Decision is issued as confirmation of the ex-tempore determination made during proceedings held on 12 December 2018, and which represented the basis for the Variation Order [PR703051] made and issued on 12 December 2018.

COMMISSIONER

Appearances:

Mr A M Slevin of Counsel with Mr A Jacka appearedfor The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union.

Mr P Brown of Baker & McKenzie appeared for the employer.

Hearing details:

2018.

Sydney:

December, 12

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Construction, Forestry, Maritime, Mining and Energy Union – the Maritime Union of Australia Division, which sought to conduct a protected action ballot of the employees of Sydney International Container Terminals Pty Limited trading as Hutchison Ports Australia Pty Ltd and Brisbane Container Terminals Pty Limited trading as Hutchison Ports Australia Pty Ltd. The dispute centred on the procedural fairness and the legality of the ballot under the Fair Work Act 2009. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues the court addressed were whether the union had complied with the requirements set out in the Fair Work Act for conducting a protected action ballot and whether the union's process was procedurally fair. Specifically, the court needed to determine if the union had appropriately notified the employer and provided sufficient details about the proposed industrial action, as required by section 375 of the Act. The employer argued that the union had not sufficiently notified them of the ballot and had not provided adequate details to allow meaningful consultation.

In delivering its decision, the court held that the union had not complied with the procedural requirements for conducting a protected action ballot. The court found that the union had failed to give the employer adequate notice and information about the proposed ballot, which was necessary to ensure procedural fairness. The court emphasised that proper notification is a critical component of the protected action process under the Fair Work Act. Consequently, the court ruled that the union's ballot process was unlawful and invalid.

As a result of the court's findings, the union's proposed ballot was deemed to be unlawful and was quashed. The court did not need to consider other potential grounds for the employer's application, such as whether the ballot itself was reasonable or lawful in its substance. The decision effectively halted the union's planned industrial action, pending compliance with the necessary legal requirements.

Construction, Forestry, Maritime, Mining and Energy Union - the Maritime Union of Australia Division v Sydney International Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Ltd and Brisbane..

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established