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

[2020] FWC 3615

[2020] FWC 3615

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
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

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