Fair Work Act 2009

s.437 - Application for a protected action ballot order

Solstad Australia Pty Ltd T/A Solstad Offshore ASA

Proposed protected action ballot of employees of Solstad Australia Pty Ltd Trading As Solstad Offshore ASA

[1] This is an application by the Australian Maritime Officers' Union, The (AMOU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Solstad Australia Pty Ltd T/A Solstad Offshore ASA (Solstad). The application was lodged on 13 June 2023.

[2] This application is amongst the first to be considered by the Commission following the commencement of a number of bargaining changes brought about by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act). These changes commenced on 6 June 2023 and amongst other matters, impact upon the making of PABOs and the approval of protected action ballot agents who might conduct the ballot should an order be made.

• [3] The proposed agreement in is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement, and this application is permitted.[1]

• [4] There has also been a notification time for the proposed agreement, the present enterprise agreement has passed its nominal expiry date, and the application and accompanying documentation is in order. The application and proposed order have also been provided by the AMOU to Solstad and the proposed ballot agent. This meets various requirements[2] for the making of a PABO.

[5] The application was supported by a statutory declaration of Mark Charles, AMOU Industrial Officer.

[6] On 13 June 2023, the Commission was advised that Solstad was prepared to consent to the application subject to the Draft Order being amended to include a notice period that the Applicant will be required to give to invoke Protected Industrial Action. The notice period was to be seven (7) working days. The AMOU subsequently consented to the proposed amendment. However, a hearing was conducted on 14 June 2023 to deal with some other aspects that arise from the Amending Act. I observe that the matters raised by the Commission, and that are canvassed in the Decision below, were addressed by consent between the parties.

• [7] Having heard the matter, I advised the parties that an Order would be issued largely in the amended terms as sought by the Applicant. This has been done.[3] My reasons for so doing are set out herein.

[8] Section 444 of the Act now relevantly provides as follows:

(1A) The FWC must, in accordance with subsections (1B) to (1D) of this section, decide the person or entity that is to be the protected action ballot agent for the protected action ballot.

(1B) The person or entity must be the person or entity specified in the application for the protected action ballot order as the person or entity the applicant wishes to be the protected action ballot agent, unless:

(a) the person or entity specified in the application does not meet the requirements of subsection (1C) (unless subsection (1D) applies); or

(b) the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the protected action ballot agent.

(1C) The person or entity must be an eligible protected action ballot agent.

(1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied that:

(a) there are exceptional circumstances that justify the ballot not being conducted by an eligible protected action ballot agent; and

(b) the person is a fit and proper person to conduct the ballot; and

(c) any other requirements prescribed by the regulations are met.

Note: Other than the Australian Electoral Commission, an entity that is not a person cannot be the protected action ballot agent for a protected action ballot."

[9] There are presently no eligible protected action ballot agents approved by the Commission beyond the Australian Electoral Commission (AEC). The AMOU propose that Democratic Outcomes Pty Ltd T/A CiVS (CiVS) be the ballot agent and, in effect, rely upon the exceptional circumstances contemplated in s.444(1D)(a). CiVS has agreed to be the ballot agent, and this has been confirmed in evidence that is before the Commission.

[10] For reasons set out in other Decisions,[4] my view is that the test for whether exceptional circumstances exist is whether the circumstances are such that they are out of the normal course of events, unusual, uncommon or extraordinary. It is open to conclude that the recency of the amendments to the protected action ballot agent provisions of the Act are exceptional circumstances. The recency of these changes, and the fact that the scheme of the Act contemplates that there will be a choice of eligible ballot agents, are unusual and are not something that have occurred before, making it uncommon.

• [11] Importantly, if it is found that exceptional circumstances do exist, those circumstances must justify the FWC granting an order for a non-eligible person to act as the protected action ballot agent. This arises from the language of s.444(1D)(a) and calls for consideration of the purpose of the relevant provision.[5]

[12] Section 444 of the Act aims to protect the interests of the employees participating in the ballot and those of the employer involved. Further, there is a statutory imperative arising from the scheme of the Act and the associated regulations that any ballot that might authorise the taking of industrial action be conducted in a proper, democratic, prompt and robust manner by agents that are fit and proper persons to undertake that task.

[13] Accordingly, the exceptional circumstances that might justify why the FWC should appoint an agent which is not an eligible protection action ballot agent should be assessed in that context.

[14] I have found that exceptional circumstances do arise associated with the recency of the new provisions. However, whilst each case must be assessed on its own merits, I would not necessarily consider that by itself, the absence of eligible protected action ballot agents beyond the AEC at this point would constitute exceptional circumstances warranting the exercise of the discretion. In this case, the proposed ballot agent has already conducted a ballot for the same bargaining representatives at this workplace. Further, given the nature of the employment involved here (seafarers) and the associated swing lengths, the particular electronic ballot method proposed, which was not utilised by the AEC, was the only practical option. I have also taken into account that Solstad accepted that it would be impractical for the AEC to conduct a postal vote and supported the use of the proposed ballot agent.

[15] I was satisfied that there were exceptional circumstances that justified the approval of the non-eligible ballot agent proposed in this matter.

[16] The proposed protected action ballot agent must also meet the requirements of s.444(1D)((b) and (c) of the Act. This involves an assessment of whether the proposed protected action ballot agent is a fit and proper person to conduct the ballot and whether they also meet the requirements established by the regulations.

[17] As to fit and proper person, the AMWU has provided a Statutory Declaration of Mr Mike Michael, Managing Director of CiVS. I observe that Mr Michael and CiVS have previously been found by the Commission to be a fit and proper person to conduct a protected action ballot based upon Mr Michael's declared education, experience and attributes.[6] The material now before the Commission includes confirmation of extensive ballot and other professional experience and the absence of criminal convictions of any kind within the business.

[18] The Fair Work Regulations 2009[7] now relevantly provide in reg 3.11 as follows:

"(1) For the purposes of paragraph 444(1D)(c) of the Act, this regulation prescribes requirements that the FWC must be satisfied have been met before a person becomes the protected action ballot agent for a protected action ballot.

Note: The person must also be a fit and proper person to conduct a protected action ballot.

(2) The person must be capable of ensuring the secrecy and security of votes cast in the ballot.

(3) The person must be capable of ensuring that the ballot will be fair and democratic.

(4) The person must be capable of conducting the ballot expeditiously.

(5) The person must have agreed to be a protected action ballot agent.

(6) The person must be bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot.

(7) If the person is an industrial association or a body corporate, the FWC must be satisfied that:

(a) each individual who will carry out the functions of the protected action ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot; and

(b) the requirements in subregulations (2) to (6) are met for the individual."

[19] The evidence provided on behalf of the proposed ballot agent also confirms to my satisfaction compliance with all of these requirements. This includes details about the nature of the information and other systems to be used for the ballot, compliance with the Privacy Act and related principles, and steps that will be taken to ensure that the ballot is conducted fairly, democratically, and expeditiously by fit and proper individuals.

[20] I have approved CiVS to act as the protected action ballot agent in this matter under s.444(1D) of the Act.

[21] No independent advisor for the ballot was proposed or appointed.

[22] The application sought a ballot period of 7 working days (from the commencement of the ballot). This was proposed on the basis that CiVS could undertake the ballot within that timeframe. However, in consequence of the issuing of the PABO, the Commission was obliged to conduct a compulsory conciliation conference under s.448A of the Act involving all bargaining representatives for the proposed enterprise agreement. This conciliation conference must be conducted during the ballot period and involves the Commission issuing a formal Order for the bargaining representatives to attend and the necessary lead time to permit both the parties and the Commission to be prepared. For the purposes of s.443(3)(c) and s.448A(2) of the Act, I have set the ballot period at 10 working days by reference to the date of effect of the PABO (15 June 2023).

[23] This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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.

[24] On the basis of the material before me, I was satisfied that the AMOU has been, and is, genuinely trying to reach an agreement with Solstad This meets the requirements of s.443(1)(b) of the Act. I was also satisfied that all of the other statutory requirements for the issuing of the PABO in this matter were met. Under s.443 of the Act, the Commission was then required to issue the PABO.

[25] As agreed, and being satisfied[8] that there are relevant exceptional circumstances, the PABO provides that under s 443(5) of the Act, the period of written notice for the purposes of s.414(2)(b) of the Act to be provided by the AMOU to Solstad for the purposes of taking protected industrial action in the form of action listed in questions 1 - 23 set out in the Order, is extended to a period of seven (7) working days.

[26] An order has been separately issued in PR763045.

[4] AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company [2023] FWC 1337; AMWU v UGL Rail Services Pty Limited [2023] FWC 1365 (AMWU v UGL); CEPU v UGL Rail Services Pty Limited [2023] FWC 1381 (CEPU v UGL).

[5] CEPU v Australian Postal Corporation [2007] AIRC 848; (2007) 167 IR 4 at [11].

[6] See amongst many examples The Australian Workers' Union v Jadestone Energy (Australia) Pty Ltd [2021] FWC 227; AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company; CEPU v UGL; AMWU v UGL.

[7] As amended by the Fair Work and Other Legislation Amendment (Secure Jobs, Better Pay) Regulations 2023, made on 25 May 2023.

[8] For the same reasons determined by Beaumont DP in PR749961.

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