Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A NRMA Fast Ferry

[2023] FWC 1621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v

Noorton Pty Ltd T/A NRMA Fast Ferry

(B2023/671)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 JULY 2023

Proposed protected action ballot of employees of Noorton Pty Ltd T/As NRMA Fast Ferry

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Noorton Pty Ltd T/A NRMA Fast Ferry (Noorton Pty Ltd or Respondent).

On 5 July 2023, the Commission was advised that the Respondent did not object to the application as amended by the Applicant on 4 July 2023 to include a preamble to clause 5 of the Order.

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

On the basis of the material before me, including the declaration of Mr Shane Reside, Maritime Union of Australia Sydney Branch Organiser, setting out the steps taken by the CFMMEU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with Noorton Pty Ltd, 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.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (3 July 2023) has been established by this Commission.[1]

An order has been separately issued in PR763908.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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.

DEPUTY PRESIDENT

[1] 1This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of Noorton Pty Ltd, trading as NRMA Fast Ferry. The application was made to allow the union to conduct a ballot to ascertain its members' support for protected industrial action. Noorton Pty Ltd did not object to the application, resulting in the matter being determined by the Commission on the basis of the documentation provided.

The primary legal issue before the Commission was whether the requirements for a protected action ballot order were met, as stipulated in section 443 of the Act. This included verifying that the union had genuinely attempted to reach an agreement with the employer and that the necessary notification period had been observed. The union's declaration by Mr. Shane Reside, the Maritime Union of Australia Sydney Branch Organiser, outlined the steps taken in bargaining and confirmed the union's genuine efforts to reach an agreement with Noorton Pty Ltd.

The Commission was satisfied, based on the provided evidence, that the union had genuinely attempted to reach an agreement and that all requirements under section 443(1) of the Act were fulfilled. Consequently, the Commission granted the application and issued an order for the ballot to be conducted by the Australian Electoral Commission. The ballot period was set to 30 working days from the date of the order, with the minimum period required by the Electoral Commission. Further orders were issued to ensure meaningful negotiations during a subsequent conference.

This decision underscores the importance of following the statutory process for protected industrial action and highlights the Commission's role in facilitating fair and lawful industrial relations practices.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established