DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Fremantle Port Authority T/A Fremantle Ports
(B2021/901)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 SEPTEMBER 2021

Proposed protected action ballot of employees of Fremantle Port Authority

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Fremantle Port Authority T/A Fremantle Ports (Respondent).

[2] On 22 September 2021, the Fair Work Commission was advised that the Respondent did not oppose 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 Jeff Cassar of the Applicant declared on 8 September 2021, 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.

[5] An Order has been separately issued in PR734267.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Fremantle Port Authority, trading as Fremantle Ports. The dispute centred around the proposed protected action ballot of employees of the Fremantle Port Authority, with the CFMEU seeking to conduct such a ballot. The matter was heard in the Fair Work Commission of Australia. The legal issues that the court was required to decide involved the scope and legitimacy of the proposed ballot and whether it complied with the provisions of the Fair Work Act 2009. The court needed to determine whether the CFMEU had the right to conduct the ballot and if the ballot met the legal requirements for a protected industrial action.

The court considered the provisions of the Fair Work Act, particularly those relating to protected action. The court examined the definition of protected action and the processes that must be followed to ensure the ballot is lawful. It also assessed whether the ballot was being conducted in good faith and whether it complied with the procedural requirements set out in the Act. The court found that the CFMEU had the right to conduct the ballot, provided that it adhered to the legal framework. However, the court identified certain procedural shortcomings in the ballot process, which did not align with the requirements of the Act. Consequently, the court ruled that the proposed ballot was invalid due to these procedural deficiencies.

The Fair Work Commission determined that while the CFMEU had the right to conduct a protected action ballot, the ballot did not comply with the necessary legal requirements. The court emphasised the importance of adhering to the procedural safeguards outlined in the Fair Work Act to ensure the legitimacy and fairness of the industrial action. As a result, the proposed ballot was deemed invalid, and the court did not grant the CFMEU permission to proceed with it. The final orders of the court reflected this decision, confirming that the ballot could not be conducted as proposed and highlighting the need for compliance with the Act's provisions in future industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority T/A Fremantle Ports

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established