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[2025] FWC 2121
General information, not legal advice.
Fair Work Commission
2025-07-22
Original judgment source is linked above.
s.437 - Application for a protected action ballot order
Construction, Forestry and Maritime Employees Union
Proposed protected action ballot of employees of Teekay Shipping (Australia) Pty Ltd - exemptions to questions or questions to be put to employees who are to be balloted -
[4] This decision determines the six issues raised by Teekay, as well as one amendment to the Order that has been raised at the initiative of the Commission. I am conscious that section 441 of the FW Act requires that the Commission must, as far as practicable, determine the application within two working days after the application was made. In light of that requirement, my reasons are relatively brief. I have conducted the hearing and published this decision within approximately 24 hours of the matter being allocated to my Chambers.
Issue 1: the inclusion of the phrase "for an indefinite period" in the question
[5] Section 443(3)(d) of the FW Act states that the Order must include the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
[6] There are 15 questions in the Order proposed by the MUA. The phrase "for an indefinite period" is included in 14 of the 15 questions.
[7] The first issue raised by Teekay was the inclusion of that phrase in those questions. It was said that the inclusion of that phrase in those questions meant that the questions fail to specify the nature of the action. Teekay proposed amendments to the Order to delete the phrase from those questions. The MUA agreed to deletion of the phrase from those questions. The Order will reflect the agreement of the parties.
Issue 2: exemptions to protected industrial action proposed by the MUA
[8] The Order proposed by the MUA contained four exemptions. The exemptions are reproduced below:
Note: In any industrial action taken in reliance on this ballot the following will be exempt:
[9] The second issue raised by Teekay was to expand the list of exemptions. Ultimately, Teekay proposed two further exemptions and proposed to amend one of the exemptions proposed by the MUA. The two further exemptions were: "Safety drills", and, "Any activities that could compromise national security as deemed by the Commonwealth of Australia". Teekay proposed an amendment to the fourth exemption proposed by the MUA so that it would read: "Any and all safety and emergency related issues".
[10] The MUA did not agree to include the two further exemptions proposed by Teekay in the Order, or the amendment to the fourth exemption. Mr Garrett explained the reasons for the MUA adopting this position.
[11] In the email referred to at paragraph 2 above, Teekay explained that its proposed exemptions were sought due to the high-risk work environment. The work environment that the relevant employees work in was left largely unexplained at the hearing. Teekay did not seek to call any evidence explaining the work environment of the relevant employees. Ms Williams made very brief oral submissions at the hearing about the work environment. At the hearing, I asked Ms Williams to identify the legislative provision relied upon by Teekay to advance its argument that the questions proposed by the MUA were not in accordance with legislation and that the Order should be amended to include the exemptions proposed by Teekay. In response, Ms Williams explained that there was no such provision of the FW Act being relied upon by Teekay. Ms Williams further explained that it was a matter of practice and within my discretion whether to amend the Order to include the exemptions proposed by Teekay.
[12] I don't accept that the Commission has any power to amend the question or questions to be put to the employees who are to be balloted by including exemptions that are not agreed by the applicant. The question or questions to be put to the employees is a matter for the applicant. In determining whether the various requirements of the FW Act are satisfied, which if so satisfied compels the Commission to make the Order under section 443, the role for the Commission as it concerns the question or questions is to be satisfied:
[13] In my view, the Commission's consideration of the question or questions in dealing with an application for an Order is confined to determining those matters only. Absent agreement by the applicant, the Commission does not have any further power or general discretion to change the question or questions proposed by the applicant. The inclusion of exemptions changes the question or questions proposed by the applicant. Teekay's submission as to the general discretion is at odds with the fact that the Commission 'must' make the Order (section 443(1)) on satisfaction of the various requirements of the FW Act. Finally, I note that my findings are consistent with the observations of Deputy President Hampton in Australian Municipal, Administrative, Clerical and Services Union v Derwent Valley Council[1], Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v KONE Elevators Pty Ltd[2], Australian Workers' Union v InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Mesh.[3]
[14] For those reasons, I determine the second issue in favour of the MUA. I will not amend the Order to include the two further exemptions proposed by Teekay, or amend the exemption as proposed by Teekay.
Issue 3: extension to period of notice under section 443(5) of the FW Act
[15] The notice requirements for taking employee claim action (which is defined at section 409 of the FW Act) are set out at section 414(1) & (2) of the FW Act. In summary, section 414(1) requires the relevant bargaining representative to give a written notice of the action to the relevant employer. Section 414(2) provides that the period of notice must be 3 working days (section 414(2)(a)) or "if a protected action ballot order for the employee claim action specifies a longer period of notice for the purpose of this paragraph - that period of notice" (section 414(2)(b)). A failure to comply with the notice requirement when taking action produces the result that the action is not employee claim action (section 409(1)(c) of the FW Act) and is not protected industrial action (section 408(a)).
[16] The FW Act defines a "working day" as a day that is not a Saturday, Sunday or a public holiday (section 12). That is, even where the relevant employer operates its business 24/7, a working day for the purpose of compliance with the notice requirements does not include a Saturday, Sunday or a public holiday.
[17] Section 443(5) of the FW Act provides for the Commission to order an extension to the period of notice being longer than 3 working days. In accordance with section 443(5), the Commission can only order such an extension on being satisfied that there are exceptional circumstances justifying the extension. Any extension is limited to a maximum of 7 working days.
[18] The third issue raised by Teekay was to extend the period of notice. In the email referred to at paragraph 2 above, Teekay applied for the period of notice to be extended to 7 working days. Initially at the hearing, Ms Williams maintained that position before advancing a period of 5 days. Ms Williams made very brief oral submissions about the reasons for the extension to the period of notice. In summary terms, it was asserted that there had been issues with Teekay not being able to communicate quickly with the Commonwealth of Australia. The only examples given were with respect to "union issues and right of entry". It was said that the speed of communication between Teekay and the Commonwealth of Australia justified an extension to the period of notice. Importantly, Teekay did not call any evidence in support of its application for an extension to the period of notice.
[19] The MUA opposed the application for an extension to the period of notice. In making his submissions, Mr Garrett referred to and relied upon a decision of the Full Bench of the Commission in National Tertiary Education Industry Union v Charles Darwin University[4] (NTEU v CDU). In accordance with that decision, Mr Garrett submitted that in the absence of any evidence put before the Commission by Teekay, I could not be satisfied that there were exceptional circumstances that would justify an extension to the period of notice. Mr Garrett noted that Teekay had ample opportunity to put any such evidence before the Commission.
[20] After Mr Garrett made his submissions, I permitted Ms Williams a further opportunity to make submissions. Ms Williams referred to and relied upon a decision of Deputy President Bull.[5] That was an application for a protected action ballot order involving the MUA and Teekay. In that case, the period of notice was extended to 5 days. At the hearing, I asked Ms Williams whether the employer application to extend the period of notice in the case before Deputy President Bull was opposed by the MUA. Ms Williams said it was. Ms Williams corrected this answer by email after the conclusion of the hearing. That decision of Deputy President Bull clearly identifies the extension to the notice period to 5 days was agreed between the MUA and Teekay.[6] Without being granted or applying for leave, in that same email after the conclusion of the hearing, Teekay's legal representatives sent to my Chambers two other single member decisions of the Commission.[7] In both decisions, the period of notice was extended. The single member decisions referred to and relied upon by Teekay are not persuasive. Each application for an extension to the period of notice must be considered on its own unique facts and circumstances. If the application is opposed by the relevant bargaining representative, as explained below, there needs to be a proper evidentiary basis to demonstrate that there are exceptional circumstances justifying the extension. Moreover, as explained by a Full Bench of the Commission in NTEU v CDU:
[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days' written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be "exceptional circumstances" in relation to the proposed industrial action the subject of the order justifying a longer period.
[21] In making submissions towards the end of the hearing, Ms Williams advanced what she described as an alternate position. The alternate position was explained as being "three working days Monday to Friday". The basis for this alternate position was explained to be that it is difficult for Teekay to communicate with the Commonwealth over the weekends. The alternate position misunderstands the FW Act, especially the definition of a working day. In truth, the alternate position is simply the 3 working days specified in section 414(2)(a) of the FW Act.
[22] It is clear that Teekay press for the period of notice to be extended, whether that be 7 working days or 5 days. My reasons for refusing to extend the period of notice are set out below.
[23] The principles to be applied when determining an application for an extension to the period of notice under section 443(5) of the FW Act were outlined by a Full Bench of the Commission in NTEU v CDU:
[21] The meaning of "exceptional circumstances" in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation. In the case, Lawler VP said:
"[10] ... In summary, the expression "exceptional circumstances" requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must exceptional circumstances "justifying" the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441."
[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase "exceptional circumstances justifying" in s.443(5).
[23] The determination of whether the circumstances in a particular case are 'exceptional' involves an evaluative judgement. A proper approach to the exercise of the Commission's discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase "exceptional circumstances" carries its ordinary meaning.
[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances"justifying" a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb "justifying" in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the period).
[24] Those principles were endorsed by a subsequent Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd t/a DP World and Others[8] That Full Bench went on to make the following observation about an application for an extension to the period of notice under section 443(5) of the FW Act:
[20] The requirement for exceptional circumstances calls for the particular facts and circumstances of a case to be considered and an evaluative judgment to be made.
[25] In determining this application, I have applied those principles. The principles explain that there is a three-step decision-making process to determine an application under section 443(5) of the FW Act.
[26] The first step requires the identification or making of findings about the particular facts or circumstances which are said to amount to exceptional circumstances. As explained, Teekay did not call any evidence which identifies the facts or circumstances that were said to amount to exceptional circumstances. Ms Williams made very brief oral submissions about such facts or circumstances. Based upon the very limited material put before me by Teekay, the particular facts or circumstances that are said to amount to exceptional circumstances are issues that Teekay is said to have experienced in communicating quickly with the Commonwealth of Australia.
[27] The second step calls for consideration as to whether the identified exceptional circumstances justify a longer notice period. That enquiry must be based on probative material. I am not satisfied based on the very limited material put before me that the identified exceptional circumstances justify a longer notice period. The communication issues that Teekay is said to have experienced with the Commonwealth of Australia was not the subject of any evidence that could be tested by the MUA through cross-examination. The frequency or cause of any such communication issues was left unexplained. It was even left unexplained how a longer notice period was justified in light of the communication issues that were said to exist. As best as I can tell from the submissions made by Teekay, the communication issues appear to be more of an issue on the weekends. At the hearing, Ms Williams submitted that "it is very difficult for Teekay to communicate with the Commonwealth" on a weekend. Even if that were true, it does not justify a longer notice period. That is because the 3 working days period of notice required by section 414(2)(a) of the FW Act does not include the weekends. That is, if the MUA gave notice of employee claim action on a Friday, to comply with the notice requirements in section 414(1) of the FW Act, the action could commence on and from the following Thursday. It could not commence on and from the following Tuesday. That is because notwithstanding that Teekay appears to operate 7 days each week, Saturday and Sunday are not a working day as defined by the FW Act. As such, even if there are difficulties experienced by Teekay in communicating with the Commonwealth of Australia on a Saturday and / or Sunday, I am not satisfied that they are exceptional circumstances that justify a longer notice period.
[28] The third step applies on satisfaction of there being exceptional circumstances. If so satisfied, a longer notice period and the length of any extension requires the exercise of the member's discretion. As explained, I am not satisfied that there are exceptional circumstances that justify a longer notice period. As such, this third step does not arise for consideration. I will, however, make one observation. As explained by a Full Bench in NTEU v CDU, the right of a bargaining representative to give three working days written notice of employee claim action should not be lightly curtailed. Exceptional circumstances must justify a longer notice period. If the longer notice period is opposed by the applicant, I would only consider extending the period of notice based upon evidence put before me in the usual way. The applicant should be provided with a proper opportunity to test any such evidence in the usual way. The right of a bargaining representative to give the three working days written notice should not be lightly curtailed based on brief oral submissions from the bar table.
[29] For those reasons, I determine the third issue in favour of the MUA. I am not satisfied that the requirement in section 443(5) has been met. I decline to specify a longer period of written notice in the Order than the 3 working days provided for in section 414(2)(a) of the FW Act.
Issue 4: removal of information from employer list and applicant list
[30] The fourth issue raised by Teekay in the email referred to at paragraph 2 above was to remove certain information from the employer list and the applicant list. Item 6 of the Order proposed by the MUA required an 'employer list'. Item 7 of the Order proposed by the MUA required an 'applicant list'. Teekay proposed the deletion of certain information from both lists (middle name, work email address, postal - address 2).
[31] At the hearing, Ms Williams indicated that Teekay no longer pressed for such deletions from the Order. The information will not be deleted from the Order.
[32] Item 9 of the Order proposed by the MUA was in these terms: The Agent is to finalise the list of voters using its discretion.
[33] The fifth issue raised by Teekay was to amend item 9. Teekay proposed that item 9 of the Order should read: The Agent is to compile a roll of voters eligible to vote in the protected action ballot by removing from the Employer List provided by the Employer all employees not included in the Member List provided by the Union, in compliance with the group of employees to be balloted in paragraph 3 of this order.
[34] Teekay explained that it objected to the ballot agent having complete discretion to finalise the roll of voters, and its drafting was designed to ensure that the Order expressly states that the ballot agent is to remove any employees from the 'Employer List' that are not also on the 'Applicant List' to ensure that the roll of voters correctly captures the group of employees to be balloted in accordance with paragraph 3 of the order.
[35] I am not satisfied that item 9 of the Order should be redrafted in accordance with Teekay's proposed words. In my view, the words are unnecessary. Section 453 of the FW Act clearly defines the employees who are eligible to be included in the roll of voters. The protected action ballot agent must conduct the protected action ballot in accordance with the matters set out at section 449(2) of the FW Act, which includes Subdivision C of Division 8 of Part 3-3 of the FW Act. The effect being that the agent does not have a 'complete discretion' to finalise the roll of voters. The agent must finalise the roll of voters by reference to section 453 of the FW Act.
[36] For those reasons, I determine the fifth issue in favour of the MUA. I will not amend item 9 of the Order as proposed by Teekay.
[37] Item 13 of the Order proposed by the MUA concerned the scrutineers. The sixth issue raised by Teekay was to delete item 13 from the Order. At the hearing, the MUA indicated it was prepared to accept the deletion of item 13 of the Order. Item 13 will be deleted from the Order.
[38] Section 443(3)(c) of the FW Act states that the Order must specify the date by which voting in the protected action ballot closes.
[39] At item 4 of the Order proposed by the MUA, it is proposed that date is to be seven (7) days after the Commencement Date. The effect of Item 8.2.1 of the Order proposed by the MUA is that the Agent will determine the Commencement Date. The Order proposed by the MUA requires that the 'Employer List' and 'Applicant List' be provided to the Agent by the third working day after the day the order is made. Irrespective of the actual Commencement Date, the order proposed by the MUA provides that the date by which voting in the protected action ballot closes is 7 days after the Commencement Date. I read that as 7 calendar days, and not working days as defined by the FW Act. The effect appears to be that, at its earliest, the date by which voting in the protected action ballot closes is Friday 1 August 2025. I note that the ballot is proposed to be an electronic ballot. The MUA appeared confident that the ballot could be conducted quickly. Teekay did not make submissions on this point. In my view, the date by which voting in the protected action ballot closes should be identified by reference to an actual date rather than seven (7) days after the Commencement Date. For that reason and taking into account the material before me[9], the Order will specify the date as being 1 August 2025. If that gives rise to difficulty, I note that section 447 of the FW Act provides for a process to vary the Order.
[40] There was no contest that the other requirements specified in the FW Act have been satisfied. On the basis of the material before me, including the declaration of Mr Garrett, setting out the steps taken by the MUA in bargaining with Teekay and that it has been, and is, genuinely trying to reach agreement with Teekay, 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.
[41] 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.
[42] As explained, the date by which voting is to close is 1 August 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
[43] An Order has been separately issued in PR789868.
[44] I will conduct the s.448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives for 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.
[1] [2025] FWC 1916 at [20] - [21].
[2] [2025] FWC 1485 at [9] - [13].
[3] [2025] FWC 1942 at [10].
[5] The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v Teekay Marine Resources Pty Ltd t/a Teekay [2021] FWC 2306.
[7] The Australian Institute of Marine and Power Engineers v T_eekay Shipping (Australia) Pty Ltd_ [2022] FWC 1734, Construction, Forestry and Maritime Employees Union v Teekay Shipping (Australia) Pty Ltd [2025] FWC 444.
[8] [2019] FWCFB 1150 at [13]- [15].
[9] Construction, Forestry, Maritime, Mining and Energy Union v Cruise Whitsundays Pty Ltd [2023] FWC 1952.
Printed by authority of the Commonwealth Government Printer
Construction, Forestry and Maritime Employees Union
Teekay Shipping