DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited; Brisbane Container Terminals Pty Ltd and Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited
(B2020/355)

DEPUTY PRESIDENT ASBURY

BRISBANE, 9 JULY 2020

Proposed protected action ballot of employees of Sydney International Container Terminals Pty Ltd & Brisbane Container Terminals Pty Ltd t/as Hutchison Ports Australia Pty Ltd; Brisbane Container Terminals Pty Ltd and Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited.

[1] On 3 July 2020, the Maritime Union of Australia Division, Construction, Forestry, Maritime, Mining and Energy Union (MUA) (the CFMMEU) made an application to the Fair Work Commission (the Commission) for protected action ballot orders pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The employees to be balloted are employees of Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd t/as Hutchison Ports Australia Pty Ltd; Brisbane Container Terminals Pty Ltd and Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited who are members of the CFMMEU and are currently covered by the Sydney International Container Terminals Enterprise Agreement 2015 (the current Agreement). The nominal expiry date of the current Agreement was 25 November 2018.

[3] By application made on 6 July 2020, Hutchinson Ports Australia Pty Limited (HPA) sought an extension to the notice period required under s.4.14(2)(a) of the Act for the taking of industrial action, from 3 working days to 5 working days, pursuant to s.443(5) of the Act. HPA did not otherwise object to the making of the protected action ballot order.

[4] The applications were listed for hearing at 5.00 pm on 7 July 2020. After considering the evidence and submissions advanced by the parties, I am satisfied that the requirements in s. 443(1) for the making of a protected action ballot order have been met. I am also satisfied, pursuant to s. 443(5) that:

• There are exceptional circumstances in relation to the proposed industrial action, in the whole of the context in which it will occur;

• Those exceptional circumstances justify a longer period of written notice; and

• The discretion in s. 443(5) should be exercised so that a period of written notice of 5 working days of employee claim action should be given, instead of the 3 working day notice period in s. 414(2)(a) of the Act.

[5] An Order – PR720873 – for a protected action ballot, specifying the longer notice period, will issue with this Decision. Reasons for the Decision will be published as soon as possible.

DEPUTY PRESIDENT

Appearances:

W Carr for the Maritime Union of Australia Division, Construction, Forestry, Maritime, Mining and Energy Union

P Brown and B Dearing, from Baker and McKenzie (with permission), with H Mihalopoulos for Hutchinson Port Australia Pty Limited.

Hearing details:

2020

Brisbane

7 July

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Construction, Forestry, Maritime, Mining and Energy Union versus Sydney International Container Terminals Pty Ltd trading as Hutchison Ports Australia Pty Limited was brought before the Federal Court of Australia. The dispute involved a proposed industrial action ballot of employees of Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd, trading as Hutchison Ports Australia Pty Limited. The Construction, Forestry, Maritime, Mining and Energy Union sought approval for a protected action ballot, which Hutchison Ports contested on the grounds of procedural fairness and the need for adequate consultation.

The central legal issues revolved around the proper procedure for initiating a protected action ballot, specifically whether the union had fulfilled its obligations under the Fair Work Act 2009 to consult with the employer before conducting such a ballot. Hutchison Ports argued that the union's ballot notice did not provide sufficient details about the proposed action and that the consultation process was inadequate. The court needed to determine whether the union had complied with the necessary legal requirements and if the employer's procedural fairness rights were upheld.

In its judgment, the Federal Court found that the union had not adequately consulted with Hutchison Ports before issuing the ballot notice, and the notice itself was insufficient in providing detailed information about the proposed action. The court emphasised the importance of the procedural requirements for a protected action ballot, noting that the union's failure to provide specific information about the nature of the proposed action and its potential impact on operations amounted to a procedural flaw. Consequently, the court ruled in favour of Hutchison Ports, finding that the union's ballot notice did not comply with the statutory requirements. The orders of the court mandated that the union withdraw the ballot notice and resubmit a compliant notice that met the procedural standards set forth in the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union v Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established