[2018] FWC 7521

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division

Sydney International Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Ltd and Brisbane Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Ltd

Proposed protected action ballot of employees of Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Ltd & Brisbane Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Ltd.

[1] The following is an edited extract of an ex-tempore Decision made in the course of a Hearing conducted on Wednesday, 12 December 2018, regarding this matter:

THE COMMISSIONER: I think in the circumstances it is appropriate that I make an ex tempore determination of this matter.

Firstly, to the extent that it is necessary, any rule or other technical requirements relevant so as to enable the variation to the protected action ballot order to proceed before the Commission, are waived. Secondly, the email communication dated 5 December 2018, from the Australian Electoral Commission to the chambers of Sams DP is treated as an application made under section 447(2) of the Act.

Having considered all of the material put before me, in the circumstances, and although it is very regrettable that the Australian Electoral Commission has failed to appear in support of its application, the Commission is prepared to vary the protected action ballot order as requested by the Australian Electoral Commission. The proposed variation represents the most practical outcome which would enable a protected action ballot to be conducted in a manner which is least likely to lead to any further contest, other litigation or challenge.

Consequently, the variation order shall be made and issued accordingly. On that basis, the proceedings stand adjourned.

[2] This Decision is issued as confirmation of the ex-tempore determination made during proceedings held on 12 December 2018, and which represented the basis for the Variation Order [PR703051] made and issued on 12 December 2018.

Mr A M Slevin of Counsel with Mr A Jacka appeared for The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union.

Mr P Brown of Baker & McKenzie appeared for the employer.

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