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

• [1] This is an application by the Construction, Forestry and Maritime Employees Union (CFMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Teekay Shipping (Australia) Pty Ltd (Teekay or Employer).

• [2] On 13 February 2025, the Commission was advised that the Employer, did not object to the Application following discussion between the parties. The parties communicated a consent position on a proposed amended order. I have granted leave to amend the application accordingly and determined the matter on the papers without conducting a hearing.

• [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 Doug Heath, Deputy Branch Secretary - WA Branch of the MUA Division of the CFMEU, setting out the steps taken by the CFMEU in bargaining with the Employer 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.

• [5] 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.

• [6] In the application, the CFMEU sought that the ballot close within "seven days" of the order on the basis that they have raised the proposed ballot period with the Ballot Agent who advised they are able to conduct the ballot within this timeframe.

• [7] In exercising the discretion in s.443(3A), the Commission may also have regard to the other relevant factors including requirements to make orders and give reasonable notice to the parties in relation to the s.448A compulsory consolation conference.[1] I have had regard to these matters and the submissions of the CFMEU and determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close is 25 February 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of 5 calendar days, but no less than 3 working days, applies to the items listed within Clause five (5) of the Order.

• [9] The structure of the draft order has been amended to reflect the Fair Work Commission's standard template.

• [10] An Order has been separately issued in PR784362.

• [11] 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.

[1] CEPU v Nilsen (NSW) Pty Ltd [2023] FWCFB 134, [66].

[2] This is, in effect, 7 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer