Construction, Forestry, Maritime, Mining and Energy Union v Flinders Adelaide Container Terminal Pty Ltd

[2023] FWC 1081

[2023] FWC 1081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Flinders Adelaide Container Terminal Pty Ltd

(B2023/412)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 MAY 2023

Proposed protected action ballot of employees of Flinders Adelaide Container Terminal Pty Ltd

1. 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 Flinders Adelaide Container Terminal Pty Ltd (Respondent).

1. On 6 May 2023, my Associate was advised that following the Respondent and the Applicant having conferred on a draft order, the Respondent does not object to the application.  The parties have further advised an amendment to the notice period required for the taking of industrial action has been agreed.

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

1. On the basis of the material before me, including the declaration of Mr Brett Larkin 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.  On the basis of the material before the Commission and having regard to the views of the parties, I am satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than 3 working days and that I should exercise the discretionary power in s.443(5) of the Act.

1. 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.

1. Therefore I appoint CiVS as the protected action ballot agent.

1. An order has been separately issued in PR761704.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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