Construction, Forestry, Maritime, Mining and Energy Union v Auriga Pilots Pty Ltd T/A Auriga Pilots

[2022] FWC 2899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Auriga Pilots Pty Ltd T/A Auriga Pilots

(B2022/1524)

DEPUTY PRESIDENT LAKE

BRISBANE, 28 OCTOBER 2022

Proposed protected action ballot of employees of Auriga Pilots Pty Ltd T/A Auriga Pilots.

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (105N) (the CFMMEU/the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Auriga Pilots Pty Ltd T/A Auriga Pilots (Auriga Pilots/the Respondent).

The CFMMEU filed the application on 6 October 2022, accompanied by a Form F34B Statutory Declaration in support of the application signed by Mr Dave Lyons, an Organiser employed by the Applicant.

On 7 October at 8.26am, email correspondence was sent from Vice President Catanzariti’s Chambers asking the Respondent to indicate whether it objected or consented to the application by the CFMMEU. The parties were advised that if the Respondent objected to the application, the response was to contain details of the basis of the objection and any material upon which was relied.

On 7 October at 4.21pm, the Respondent sent an email which indicated that the Respondent did not object to the protected action ballot order. However, it requested an amendment be made to the draft Order, proposing that the notice period for action be extended to five days pursuant to s.414(2)(b) of the Act. The Respondent outlined that the proposed extended notice period would ensure that significant operational delays and potential safety risks were appropriately mitigated. Attached to the email was a draft Order with the proposed amendment under clause 7.

On 10 October at 8.41pm, the Applicant advised they objected to an extension of the notice period for action. The Applicant stated that the circumstances outlined by the Respondent were not exceptional, nor did they justify a longer notice period.

On 11 October at 9.36am, the matter was then allocated to me.

On 13 October at 2.19pm, in relation to another protected action ballot order application made by the Australian Maritime Officers’ Union (AMOU) against the same Respondent (B2022/1528), the AMOU advised that the Respondent provided them and the CFMMEU with a proposal for consideration that may resolve the need for protected action. The Applicant requested an extension until 19 October to provide the Commission with an answer on whether it will be pressing the protected action ballot or not. On 14 October at 9.09am, the Vice President’s Chambers confirmed that the extension was granted.

On 19 October at 5.27pm, the AMOU informed the Vice President that they hoped to discontinue the protected action ballot order application. However, the parties were attempting to resolve the issue behind the scenes and that it may be resolved by 21 October.

On 20 October at 2.52pm, I listed the matter for a conference at 2.00pm on 27 October.

On 24 October at 12.06pm, the AMOU apologised for the delay in responding to the Vice President. The Respondent had put the enterprise agreement out to ballot, and it would close on 31 October. The AMOU requested that their matter be allocated to me as it was similar to the current matter.

On 25 October at 1.52pm, the Respondent provided correspondence expressing that they no longer opposed the application nor wanted to press the five-day notice period issue. The Respondent requested that the directions issued be vacated. Attached was a draft Order with the amended clause 7.

On 25 October at 2.43pm, the Applicant agreed to vacate the directions and confirmed that they would await the Commission’s Decision.

In the circumstances and based on the correspondence from the parties, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr Dave Lyons of the Applicant declared on 6 October 2022, I am satisfied that the requirements of ss.443(1)(a) and (b) have been met and that, accordingly, an order must be made.

An order has been separately issued in PR747426.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of Auriga Pilots Pty Ltd. The application was made under section 437 of the Fair Work Act 2009 (FW Act). The CFMMEU sought to conduct a ballot for protected action due to a dispute with Auriga Pilots over the proposed extension of the notice period for industrial action. Auriga Pilots initially did not object to the ballot but suggested an amendment to extend the notice period for action to five days, citing potential operational delays and safety risks. The CFMMEU opposed this amendment, arguing that the circumstances did not justify a longer notice period. The case was allocated to Deputy President Lake and the matter was determined on the papers without a hearing.

The key legal issues before the FWC were whether the CFMMEU had met the statutory requirements for a protected action ballot order under the FW Act and whether Auriga Pilots' proposal to extend the notice period for industrial action was justified. The FWC had to consider the statutory declaration of Mr Dave Lyons, an Organiser of the CFMMEU, and the submissions of both parties on the proposed extension of the notice period. The CFMMEU argued that Auriga Pilots' proposal did not meet the exceptional circumstances required to justify an extended notice period under section 414(2)(b) of the FW Act.

The FWC found that the CFMMEU had satisfied the requirements of sections 443(1)(a) and (b) of the FW Act. The statutory declaration provided sufficient evidence that the CFMMEU was genuinely seeking to resolve a dispute with Auriga Pilots and had the support of its members. The FWC did not consider it necessary to hold a hearing as the material before it was sufficient to determine the matter. The court noted that Auriga Pilots had withdrawn its opposition to the ballot and did not wish to press the issue of the extended notice period. As a result, the FWC decided to make the protected action ballot order without further delay.

The FWC issued an order permitting the CFMMEU to conduct a ballot for protected action among its members employed by Auriga Pilots. The order was issued in accordance with section 437 of the FW Act. The FWC did not consider it necessary to address the issue of the extended notice period as Auriga Pilots had withdrawn its opposition and the matter was now resolved. The CFMMEU was granted the right to proceed with the ballot as sought.

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