Construction, Forestry, Maritime, Mining and Energy Union v Maersk Crewing Australia Pty Ltd T/A Maersk Crewing Australia Pty Ltd

[2022] FWC 2433

[2022] FWC 2433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Maersk Crewing Australia Pty Ltd T/A Maersk Crewing Australia Pty Ltd

(B2022/1332)

COMMISSIONER WILLIAMS PERTH, 13 SEPTEMBER 2022

Proposed protected action ballot of employees of Maersk Crewing Australia Pty Ltd Trading As Maersk Crewing Australia Pty Ltd

1. This is an application lodged on 5 September 2022 by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Maersk Crewing Australia Pty Ltd T/A Maersk Crewing Australia Pty Ltd (the Respondent).

1. The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent objected on two grounds, being:

1)        the wording of the proposed Order in relation to the timeline to be developed by the Ballot Agent and the day on which such ballot is to close is ambiguous and requires clarification to ensure employees are afforded the opportunity to cast an informed ballot; and

2)        the proposed Order should be amended to reflect a notice period of seven working days’ notice for any protected action taken in reliance on the same given the exceptional circumstances applicable to the Respondent’s operations and industry.

1. Following further discussions, the Respondent and the Applicant were able to reach an agreement on the proposed wording relating to the first objection.

1. An agreement was not reached on the Respondent’s second objection, and a conference was subsequently listed for 12 September 2022.

1. During the conference, the Applicant and the Respondent reached an agreement relating to the second objection, and subsequently sent a draft proposed order to the Commission.

1. The Applicant 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 T/A 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.

1. 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.

1. CiVS is to be the ballot agent for the purposes of this matter.

1. On the basis of the material before me, including the statutory declaration of Mr George Gakis of the Applicant lodged 5 September 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 section 443(1) of the Act have been met.

1. Considering the statement of Ms Nottle for the Respondent, the Commission is satisfied that there are exceptional circumstances justifying the period of written notice in 414(2)(a) being longer than 3 working days and accepts that a period of written notice of at least seven (7) calendar days is justified.

1. An Order [PR745769] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR745768>