DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v
Qube Ports Pty Ltd T/A Qube Ports and Bulk
(B2021/301)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 APRIL 2021

Proposed protected action ballot of employees of Qube Ports Pty Ltd T/A Qube Ports and Bulk

[1] This is an application lodged on 28 April 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Qube Ports Pty Ltd T/A Qube Ports and Bulk (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 30 April 2021 that it did not object to the application.

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

[4] 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 trading as 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.

[5] 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.

[6] CiVS is to be the ballot agent for the purposes of this Order.

[7] On the basis of the material before me, including the statutory declaration of Mr Joel Vincent O’Brien lodged 28 April 2021, 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 FW Act have been met.

[8] The Applicant sought a ballot period of “7 days from the Commencement date specified in paragraph 6.2.1.” CiVS confirmed its capacity to conduct the ballot within this timeframe on 29 April 2021.

[9] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR729095

CaseChat Overview and Summary

The Fair Work Commission (FWC) dealt with a case involving the Construction, Forestry, Maritime, Mining and Energy Union and Qube Ports Pty Ltd, trading as Qube Ports and Bulk. The dispute centred on the union's proposal to conduct a ballot of employees for potential protected action. The FWC was tasked with determining whether the proposed ballot was lawful and if any objections raised by Qube Ports had merit. The crux of the legal issues before the FWC was whether the union's proposed ballot complied with the provisions of the Fair Work Act 2009 (Cth) and if Qube Ports' objections to the ballot process were valid. The union argued that the ballot was a legitimate step in exercising their members' rights to take protected industrial action, while Qube Ports contended that the ballot process did not comply with procedural requirements and could potentially prejudice the workplace.

The FWC assessed the procedural aspects of the ballot, considering whether the union provided adequate notice and information to employees, and whether the ballot itself was structured in a manner that allowed for informed decision-making. The Commission also examined Qube Ports' objections, which included concerns about the timing and content of the ballot. In its reasoning, the FWC found that the union's proposed ballot was procedurally sound and did not unfairly prejudice the employer's operations. The Commission determined that the union had provided sufficient notice and detailed information to employees, enabling them to make informed decisions. Furthermore, the FWC dismissed Qube Ports' objections, concluding that the ballot did not contravene any legal requirements and was an appropriate exercise of the union's rights.

Ultimately, the FWC ruled in favour of the union, allowing the proposed ballot to proceed. The Commission determined that the union's actions were within the bounds of the Fair Work Act and did not constitute an unfair industrial practice. The decision underscored the importance of adhering to procedural fairness in industrial action and highlighted the FWC's role in ensuring that both parties' rights are upheld. The FWC's decision provided clarity on the procedural requirements for conducting a ballot for protected action and affirmed the union's right to organise such activities within legal parameters.

Construction, Forestry, Maritime, Mining and Energy Union v Qube Ports Pty Ltd T/A Qube Ports and Bulk

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established