s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union

Proposed protected action ballot of employees of Cruise Whitsundays Pty Ltd

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Cruise Whitsundays Pty Ltd (Cruise Whitsundays or Employer).

[2] Late on 8 August 2023, the Commission was advised, in effect, that Cruise Whitsundays did not object to the Application; but contended that a longer ballot period be set by the Commission.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing. This included determining the (contested) ballot period on the basis of the written submissions and other materials provided by the parties concerning that aspect of the proposed order.

[4] On the basis of the material before me, including the declaration of Mr Dave Lyon, CFMMEU Union Official, setting out the steps taken by the CFMMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Cruise Whitsundays, 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 T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act[1] and consequently is authorised to conduct the ballot. The ballot is to be conducted electronically.

[6] Under s.443(3)(c) of the Act, the Commission must determine, and specify in the Order, the date by which voting in the protected action ballot closes - the ballot period. The Commission is also obliged, if the PABO is issued, to order the attendance of all bargaining representatives at a s.448A compulsory conciliation conference during the ballot period.

• [7] A recent decision of the Full Bench of the Commission in CEPU v Nilsen (NSW) Pty Ltd[2] (CEPU v Nilsen), considered the approach to be adopted by the Commission in establishing the ballot period. Amongst other matters, the Full Bench confirmed:

• • The Commission must determine the ballot period in each case as a matter of discretion and is not bound to grant the date proposed in the application and draft order, or that proposed by the employer.[3]

• • Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. This focuses attention on the process of conducting the ballot. "Expeditiously" connotes quickly and efficiently and the notion of "practicable" means that something can be done or put into practice successfully. This provision does not require the Commission to ensure that the ballot closes as quickly as possible. [4]

• • There are a range of case specific considerations, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and the ballot process itself, that are or maybe relevant to the exercise of the discretion to set the ballot period. Within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot period is also a relevant statutory context and consideration in setting that period. This is reinforced by the potential consequences of non-attendance by a bargaining representative at such a conference, the legislative purpose of s.448A within the scheme of the Act, and the practical consequences of arranging and conducting the conference at which all bargaining representatives can attend and fully participate and where the Commission can deploy the range of dispute resolution techniques contemplated by the Act.[5]

• [8] Given the recency of the decision, the Full Bench decision was expressly raised[6] with the parties ahead of the opportunity to make final submissions. In addition, the opportunity to address the notion that the ballot period would be set by reference to a nominated date, was also provided. This included the preliminary view that having regard to the matters then known to the Commission and taking into account the terms of the Act and the considerations set out in CEPU v Nilsen, that date may be between 10 and 15 working days from the making of the ballot order.

[9] The CFMMEU sought a ballot period of 10 days from the commencement of the ballot. This is the equivalent of 13 days from the making of the ballot order, which is the usual reference point adopted by the Commission. It contended, in effect, that such a period was appropriate given that a further in-person meeting between the parties was already scheduled in the next few days and that the geographical location of the parties should not be a hindrance as there was capacity for the Commission to utilise video and/or telephone conference facilities.

• [10] Cruise Whitsundays sought a ballot period of "at least" 20 business (working)[7] days noting the geographical locations of the enterprise, the Whitsundays, and what it described as the logistical issues during bargaining. In final submissions, Cruise Whitsundays stated:

"In relation to the proposed timetable for ballot and conference, our client notes that it is of the view that period of at least 20 business days would be more likely to permit meaningful conciliation to take place, but are in the hands of the tribunal in relation to same."[8]

[11] I take on face value that the ballot could be conducted within the 10 (13) calendar days proposed by the CFMMEU and that there are some logistical issues associated with the locations of the enterprise and the representatives of the parties. These do not appear to be in dispute. I also observe that it is open to the Commission to conduct the s.448A conference using various means including in-person and video meetings. This is ultimately a matter for the Commission Member who convenes and conducts the conference to determine having regard to the purpose of the proceedings emphasised in CEPU v Nilsen.

• [12] Having regard to all of the circumstances of this matter, including the positions and particular situation of the parties, and the various other considerations outlined in CEPU v Nilsen, I have determined that for the purposes of s.443(3)(c) of the Act, the date by which the voting in the protected action ballot in this matter is to close is 28 August 2023. This is the equivalent of 12 working days after the date of the Order (9 August 2023) recognising that a public holiday[9] will occur in Queensland (where the workplace is located) during this period. This also establishes the period for the purposes of s.448A(2) of the Act.

[13] An Order has been separately issued in PR764945.

[14] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation 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.

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[2] [2023] FWCFB 134.

[3] CEPU v Nilsen at [53], [58] and [79].

[6] In correspondence from my Chambers to both parties in the lead up to this Decision.

[7] Working day is the term defined in the Act - s.12.

[8] Submission on behalf of the Employer made on 8 August 2023.

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