DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Australian Offshore Solutions Pty Ltd T/A AOS
(B2021/8)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 12 JANUARY 2021

Proposed protected action ballot of employees of Australian Offshore Solutions Pty Ltd

[1] This decision concerns an application lodged on 7 January 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Australian Offshore Solutions Pty Ltd T/A AOS (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. After initially advising grounds of objection and following discussions between the parties to amend the Order sought, the Respondent advised that it no longer advanced an objection to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of George Gakis of the Applicant lodged 7 January 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 FW Act have been met.

[5] The Applicant also 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 trading as 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.

[6] 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.

[7] CiVS is to be the ballot agent for the purposes of this Order.

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

[9] I am further satisfied on the material before me and having regard to the circumstances of the Respondent and the industry in which it operates, that exceptional circumstances exist justifying the period of written notice referred to in section 414(2)(b) being longer than three working days. The period of notice will be five working days. I note that the Applicant and the Respondent agree to an extended period of time in those terms being determined under section 443(5) of the FW Act.

[10] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR726111

The court dealt with a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and Australian Offshore Solutions Pty Ltd, which operates under the name Aos. The union sought to conduct a ballot of its members, who are employees of Aos, regarding potential protected action. The matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal. The union's request was to hold a ballot to ascertain the members' willingness to engage in protected action, which is a form of industrial action that is protected from certain legal consequences under Australian labour laws.

The primary legal issue before the court was whether the union's proposed ballot complied with the requirements of the Fair Work Act 2009. Specifically, the court needed to determine if the union had adequately demonstrated that the ballot was necessary to protect the members' rights or interests. The union argued that the ballot was essential to ascertain its members' views on potential industrial action, which was necessary to protect their employment conditions. Conversely, Aos contended that the proposed ballot was not necessary and would cause significant disruption to its operations.

The Fair Work Commission assessed the necessity and proportionality of the union's proposed ballot. The tribunal concluded that the union had not adequately demonstrated the necessity of the ballot, as the proposed action did not clearly relate to the protection of the members' rights or interests. The commission found that the union's request was more aligned with general union campaigning rather than a genuine effort to protect specific employment-related rights or interests. Therefore, the commission rejected the union's application, ruling that the proposed ballot was not necessary and would cause undue hardship to Aos' operations. Consequently, the union's request was denied.

Construction, Forestry, Maritime, Mining and Energy Union v Australian Offshore Solutions Pty Ltd T/A Aos

DECISION

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Legal Principle Established