William Warren Tracey v Fremantle Port Authority

[2011] FWA 6746

[2011] FWA 6746

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

William Warren Tracey
v
Fremantle Port Authority
(B2011/3527)

DEPUTY PRESIDENT MCCARTHY PERTH, 30 SEPTEMBER 2011

Proposed protected action ballot by employees of Fremantle Port Authority.

Background

[1] Mr William Tracey (Tracey) lodged an Application for a Protected Action Ballot (the Application) on 26 September 2011. The employees Tracey wished to be balloted were each named in an attachment to the Application.

[2] The employer named, who will be covered by the agreement being proposed and sought, is the Fremantle Port Authority (the FPA).

[3] I heard the Application on 27 September. Tracey was represented by Mr Luke Edmonds (Edmonds) of W.G. McNally Jones Staff Lawyers and the FPA was represented by Mr Warren Milward (Milward) of WA Workplace Law Pty Ltd. I gave permission for Edmonds and Milward to represent Tracey and the FPA respectively.

[4] It is well known that Tracey is an official for the Maritime Union of Australia (the MUA) and it was certainly known by me, having dealt with matters involving Tracey before. This Application did not mention the MUA nor Tracey’s position in that union. The Application has obviously been made by Tracey asserting that he has authority to make it as a bargaining representative for the persons being sought to be balloted.

[5] The FPA objected to Tracey's status as bargaining representative on the grounds that proper notification had not been appointed in writing by all of those employees named in the Application as required by s.176(1)(c) of the FW Act and that a copy of the instrument of appointment had not been given to the employer as required by s.176(2)(a) of the Fair Work Act 2009 (the FW Act).

[6] The FPA made no other objections about the meeting of the requirements of s.437 of the FW Act.

[7] The FPA did request that the protected action ballot order (the PABO) specify a longer period of notice than the three working days prescribed by s.414(2)(a) of the FW Act.

Consideration

Tracey’s standing

[8] Tracey gave evidence about the meeting of the requirements of his appointment as a bargaining representative. The FPA withdrew their objections after this evidence. In any event, I accept Tracey’s evidence regarding his appointment and find that it was made in accordance with the requirements of s.176 of the FW Act and that notice of the appointment to the FPA was also given in accordance with those requirements. I make that finding for those employees identified and agreed upon by Tracey and the FPA.

[9] Mr Tracey, in his evidence, also made it clear that most, if not all, of the employees being sought to be balloted were not entitled to be members of the MUA. Tracey outlined the nature and extent of his involvement in the negotiations that had been conducted and his representation of employees in other disputes not related to this Application.

[10] The FPA made no objection to Tracey being able to represent the employees who had appointed him on the grounds outlined in s.176(3) of the FW Act which provides that:

"an employee organisation cannot be a bargaining representative for an employee unless the employee organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the proposed enterprise agreement."

[11] I infer from that lack of objection that FPA does not assert that Tracey is or has been acting as the MUA, or purported to act in that capacity. Indeed there is no evidence that would support a contention of that nature.

[12] I therefore see no reason why Tracey cannot be a bargaining representative for the employees concerned. Indeed that would be consistent with the approach adopted under previous legislation regarding the rights of individuals to be represented by persons who were employed by or officials of registered organisations. 1

The Period of Notice for Employee claim action

[13] Captain Allan Gray (Gray), the Harbourmaster and General Manger of Port Operations gave evidence by way of affidavit. Gray outlined in some detail the nature of the port operations with emphasis on the logistics and lead times involved in the efficient running of such operations. He outlined the difficulties that would be faced by the FPA if sufficient lead time were not given of industrial action. Gray’s evidence was not sought to be contested by Tracey.

[14] The parties requested an adjournment during the proceedings to enable them to have discussions about the Application. Following those discussions, they indicated that they had reached an agreed position. That position involved the PABO specifying five workings days, but excluding Saturday, and Sundays to be counted as working days for that purpose, rather than the three working days prescribed by the FW Act.

[15] I am satisfied that the requirements of s.437 have been met and I am also satisfied in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances and the PABO will reflect the agreement reached between the parties with respect to the requirements for notice of employee claim action.

DEPUTY PRESIDENT

Appearances:

Mr L Edmonds on behalf of Tracey.

Mr W Milward on behalf of the FPA.

Hearing details:

2011.
Perth:
28 September.

 1   See Re: Woolworths, [PR951532]; Re: Formula One Catering Services Pty Ltd t\as Quality Cuisine Catering, Melbourne, 23 May 2003, [PR930605]; and Re: Coles Supermarkets Australia Pty Ltd National Bakery Agreement 1999 (the Bakery Agreement), Melbourne, 19 October 2000, [T2319].

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