Kevin Russell Sneddon v Fremantle Ports Authority

[2024] FWC 1464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Kevin Russell Sneddon
v

Fremantle Ports Authority

(B2024/720)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 JUNE 2024

Proposed protected action ballot of employees of Fremantle Ports Authority

This is an application by Kevin Russell Sneddon (Mr Sneddon or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Fremantle Ports Authority (Fremantle Ports or Employer).

I note that the Australian Maritime Officers’ Union have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 5 June 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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 Sneddon, Lawyer, setting out the steps taken by the himself in bargaining with the Employer and that he has been, and is, genuinely trying to reach agreement with Fremantle Ports, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 24 June 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR775678.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. To the extent that this matter involves any additional bargaining representatives, that Member will issue an Order requiring their attendance in the proposed enterprise agreement 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] B2024/721.

[2] This is effectively 7 working days after the anticipated commencement of the ballot, as sought in the appliction.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Kevin Russell Sneddon v Fremantle Ports Authority was brought before the Fair Work Commission, where Sneddon sought a protected action ballot order concerning certain employees of Fremantle Ports Authority. This application was made under section 437 of the Fair Work Act 2009, focusing on the proposed enterprise agreement between Sneddon and Fremantle Ports. Notably, the Australian Maritime Officers’ Union has filed a separate application for a protected action ballot order relating to the same proposed agreement. Fremantle Ports did not object to Sneddon’s application, leading the Deputy President to determine the matter without a hearing.

The legal issues in this case revolved around whether Sneddon had fulfilled the necessary conditions to conduct a protected action ballot under the Fair Work Act. Specifically, the Commission needed to ascertain whether the notification time for the proposed agreement had been met and if Sneddon had genuinely attempted to reach an agreement with Fremantle Ports. The Deputy President considered Sneddon's declaration, which detailed the bargaining process and his efforts to negotiate with the employer. The Commission was also required to determine the closing date for voting, which would set the ballot period for the conciliation conference.

The Deputy President found that all requirements under section 443(1) of the Act had been met, and thus, the notification time for the proposed agreement was established. Democratic Outcomes Pty Ltd, an approved ballot agent, was designated to conduct the ballot. The closing date for voting was set as 24 June 2024, ensuring a sufficient ballot period for the compulsory conciliation conference under section 448A of the Act. An Order was separately issued to ensure the conference would proceed with meaningful negotiations, and any additional bargaining representatives would be required to attend.

In conclusion, the Fair Work Commission granted Sneddon’s application for a protected action ballot order and set the timeline for the ballot and conciliation conference. The decision underscores the procedural requirements for conducting a ballot under the Fair Work Act and the importance of genuine negotiations between bargaining parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established