Construction, Forestry, Maritime, Mining and Energy Union v Flinders Ports Pty Limited

[2022] FWC 2149

[2022] FWC 2149

The attached document replaces the document previously issued with the above code on 12 August 2022.

The reference to five (5) working days in paragraphs [7] and [8] has been amended to read five (5) calendar days.

Associate to Deputy President Anderson.

Dated 12 August 2022.

[2022] FWC 2149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Flinders Ports Pty Limited; and
Flinders Ports Management Services Pty Ltd T/A Flinders Ports

(B2022/1217)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 12 AUGUST 2022

Proposed protected action ballot of employees of Flinders Ports Pty Limited and Flinders Ports Management Services Pty Ltd T/A Flinders Ports

1. This is an application made on 11 August 2022 by the Maritime Union of Australia division of the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) under s 437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Flinders Ports Pty Limited and Flinders Ports Management Services Pty Ltd T/A Flinders Ports (Respondent).

1. The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. On 11 August 2022 the Respondent confirmed by correspondence from its solicitors that a consent position had been reached in relation to the application.

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 Campbell Richard Duignan of the Applicant dated 8 August 2022 and lodged on 11 August 2022, 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 s 443(1) of the FW Act have been met.

1. I note that the Applicant is not the sole bargaining representative of employees for an agreement. The Australian Maritime Officers Union (AMOU) is also a bargaining representative though not an applicant on this application.

1. I am also satisfied that the Applicant has given notice in accordance with s 440 of the FW Act.

1. The parties sought by consent that the notice period required under s 414(2)(a) of the FW Act be extended from three (3) working days to five (5) calendar days due to exceptional circumstances. These exceptional circumstances were said to arise from the current operational circumstances of the Respondent as the sole owner and operator of the primary container terminal in South Australia and most ports in the state.

1. On the basis of the consent position presented by parties supported by the correspondence of Julie Feaviour of the Respondent dated 9 August 2022 (paragraphs 18 to 23) I am satisfied that exceptional circumstances for the purposes of s 443(5) of the FW Act exist warranting an extension of the notice period referred to in s 414(2)(a) from three (3) working days to five (5) calendar days. The Order in this matter will reflect this.

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

DEPUTY PRESIDENT

[1] PR744742

Printed by authority of the Commonwealth Government Printer

<PR744741>