Union of Christmas Island Workers v Indian Ocean Territories Administration

[2024] FWC 3192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Union of Christmas Island Workers
v

Indian Ocean Territories Administration

(B2024/1485)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 19 NOVEMBER 2024

Proposed protected action ballot of employees of Indian Ocean Territories Administration

This is an application by the Union of Christmas Island Workers (UCIW) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Indian Ocean Territories Administration (IOTA). IOTA does 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 Gordon Sinclair Thomson, Union Official, setting out the steps taken by the UCIW in bargaining, and detailing how the union has been, and is, genuinely trying to reach agreement with IOTA, 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.

UCIW has also sought that a person other than an eligible ballot agent be the ballot agent for the protected action ballot. This course was not opposed by IOTA. The person proposed in the application as the protected action ballot agent is Mr David Eric Price, CEO of the Christmas Island Shire. Mr Price has provided a declaration setting out that he would carry out the functions of the protected ballot agent, and that he has relevant experience as a Returning Officer in Christmas Island Shire elections. I am satisfied that Mr Price is a fit and proper person to conduct the ballot. I am also satisfied that Mr Price is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Price has agreed to be the protected action ballot agent. He is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

I determine that the ballot is to be conducted by Mr David Eric Price.

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 6 December 2024. This is a week longer than sought by UCIW. The additional week is to allow sufficient time for the Commission to conduct a conference in accordance with the requirement in s.448A of the Act.

An Order has been separately issued in PR781402

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Union of Christmas Island Workers (UCIW) applied to the Fair Work Commission under the Fair Work Act 2009 for a protected action ballot order in relation to employees of the Indian Ocean Territories Administration (IOTA). The Indian Ocean Territories Administration did not oppose the application. Deputy President Slevin determined the matter on the papers, without holding a hearing, and found that the UCIW had satisfied all requirements for a protected action ballot.

The central legal issue before the Court was whether the Union had met the statutory criteria for a protected action ballot. This included establishing that there was a notification time in relation to the proposed agreement and confirming that all procedural requirements under the Fair Work Act had been satisfied. The Court also had to consider whether the proposed ballot agent was a fit and proper person to conduct the ballot, ensuring the secrecy and security of the votes.

In making his decision, Deputy President Slevin found that the UCIW had genuinely attempted to reach an agreement with IOTA and had met all statutory requirements. The Deputy President also concluded that the proposed ballot agent, Mr David Eric Price, was a suitable person to conduct the ballot. He noted Mr Price's experience and agreed to the additional week for voting to allow for a compulsory conciliation conference. The Court then assigned the matter to another Member of the Commission for the conciliation conference.

The final orders of the Court included determining that the ballot would be conducted by Mr David Eric Price and setting the closing date for voting as 6 December 2024. The Court also assigned the conciliation conference to another Member of the Commission and issued an Order requiring the attendance of all bargaining representatives at the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established