Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Limited

[2023] FWC 2236

[2023] FWC 2236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

DP World Melbourne Limited

(B2023/923)

COMMISSIONER JOHNS MELBOURNE, 5 SEPTEMBER 2023

Proposed protected action ballot of employees of DP World Melbourne Limited

1. This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of DP World Melbourne Limited (DP World or Employer). 

1. On 4 September 2023, the Commission was advised that DP World objected to the Application. Accordingly, the matter was listed for hearing on 5 September 2023. In advance of the hearing the parties were directed by me to confer about the objections raised by DP World.  Prior to the hearing, the parties jointly advised my Chambers that the objections would be withdrawn on the following basis:

1. That an additional order be inserted under s.443(5) of the Act in the following terms:

“For the purpose of s.414(2)(b) of the Act, the period of written notice required to be given prior to any industrial action occurring shall be five working days.”

1. That the Order specify voting in the protected action ballot should close 21 calendar days after the ballot opens to allow inter alia for the conference process under s.448A of the Act.

2. In addition, I was advised that the Applicant provided undertakings to the Employer  that the proposed protected industrial action will be subject to several “carve-outs”. The parties did not want those matters included in the Order.

1. In the circumstances, the hearing was vacated.

1. On the basis of the material before me, including the declaration of Mr Adrian Evans, Assistant National Secretary – MUA Division of the CFMMEU, setting out the steps taken by the CFMMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with DP World, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.  

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 26 September 2023 (inclusive).[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR765833.

1. This matter will now be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[2] This is, in effect, twenty-one (21) calendar days from the date effect of the Order.

Printed by authority of the Commonwealth Government Printer

<PR765832>