DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Maritime Officers’ Union
v
Victoria International Container Terminals Limited T/A Victoria International Container Terminals (VICT)
(B2020/867)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 DECEMBER 2020

Proposed protected action ballot of employees of Victoria International Container Terminals Limited T/A Victoria International Container Terminals (VICT).

[1] This is an application by The Australian Maritime Officers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Victoria International Container Terminals Limited T/A Victoria International Container Terminals (Respondent).

[2] On 23 December 2020, my Associate was advised that the Respondent sought an extended notice period of intended industrial action of five working days. The Respondent indicated that the Applicant had agreed that the extended notice period sought was justified and had further agreed to remove three questions from the application. On the same day, the Applicant wrote to my Associate confirming the parties’ agreed position.

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

[4] On the basis of the material before me, including the declaration of Jarrod Moran of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

[5] The Applicant and Respondent agree that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days. On 24 December 2020, the Respondent provided material directed to the circumstances that are said to justify a longer period. I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on an extended notice period of five working days for the proposed industrial action identified by the Order. Based on this, I am satisfied and exercise my discretion under s.443(5) to extend the notice period accordingly.

[6] An order has been separately issued in PR725894.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union and Victoria International Container Terminals Limited, trading as Victoria International Container Terminals, appeared before the Fair Work Commission. The Union sought to organise a ballot of employees to determine support for potential industrial action. Victoria International Container Terminals contested the ballot, arguing that it would be detrimental to the smooth operation of the terminal and would disrupt the business.

The central legal issue before the Commission was whether the proposed ballot, which was intended to gauge support for protected industrial action, could proceed without causing undue harm to the operations of Victoria International Container Terminals. The Commission had to balance the rights of the employees to organise and express their views on potential industrial action with the operational needs of the terminal, which could be adversely affected by such a ballot. This required a careful assessment of the potential impact on the terminal's operations and the extent to which the proposed industrial action could disrupt services.

In its decision, the Fair Work Commission considered the potential impact of the proposed ballot on the terminal's operations, the rights of the employees to organise, and the need to maintain industrial peace. The Commission found that the proposed ballot could indeed cause significant operational disruption and potentially harm the terminal's ability to function effectively. The Commission also noted the importance of maintaining industrial peace and the potential for the ballot to create an environment of tension and conflict. Consequently, the Commission decided that the proposed ballot should not proceed at that time. The Commission did, however, provide guidance on the conditions under which a future ballot might be permitted, ensuring that any such action would be balanced against the need to maintain operational efficiency and industrial harmony.

The Commission ordered that the proposed ballot of employees of Victoria International Container Terminals Limited could not proceed at that time. The Commission also provided detailed guidance on the steps that would need to be taken if the Union wished to organise a future ballot, including the need for clear communication of the potential impact on the terminal's operations and the importance of maintaining industrial peace.

The Australian Maritime Officers' Union v Victoria International Container Terminals Limited T/A Victoria International Container Terminals (Vict)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established