[2021] FWC 2306

Fair Work Act 2009

s.437 - Application for a protected action ballot order

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

Proposed protected action ballot of employees of Teekay Marine Resources Pty Ltd -Application to extend minimum period of notice - Exceptional circumstances.

[1] An application pursuant to s.437 of the Fair Work Act 2009 (the Act) has been filed by the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for a protected action ballot order (PABO).

[2] The PABO is in relation to employees of Teekay Marine Resources Pty Ltd (Teekay), whose employment is covered by the Teekay Marine Resources Pty Ltd Maritime Union of Australia Division of Construction, Forestry, Maritime, Mining and Energy Union Government Services (Ocean Protector) Greenfields Agreement 2018 (the Agreement)[1] and who are members of the CFMMEU.

[3] Having regard to s.438 that prohibits a PABO application being made earlier than 30 days before the nominal expiry date of the Agreement, it is noted that the nominal expiry date of the Agreement is 9 June 2020.

[4] The draft order provided by the CFMMEU sets out various questions relating to proposed industrial action to be asked of CFMMEU's members.

[5] Subject to requesting variations to the wording of the order sought by the CFMMEU and an extension from 3 to 7 days written notice of any action to be taken, Teekay does not oppose the PABO being granted.

[6] Prior to the listed hearing of the application, the parties advised that they had reached agreement on the terms of the proposed PABO. The agreed position was the acceptance by the CFMMEU to Teekay's drafting changes in the order sought and an agreed position on 5 days being the written notice of any action to be taken.

[7] Attached to the CFMMEU's application was a Form F34B - Declaration in support of an application for a protected action ballot order, declared by Mr Warren Smith, the Divisional Assistant National Secretary of the Maritime Union of Australia Division of the CFMMEU. Mr Smith outlined the history of enterprise negotiations between the parties which commenced in June 2020.

[8] Mr Smith attested to numerous meetings between the parties between the period of June 2020 and April 2021 and stated that the parties remain significantly apart on many issues.

[9] Mr Smith stated that the CFMMEU has been and is genuinely trying to reach an agreement with Teekay.

[10] Pursuant to s.437 of the Act, a bargaining representative of an employee (in this case the CFMMEU) who will be covered by a proposed enterprise agreement may apply to the Commission for an order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in particular protected industrial action for the Agreement. The specific terms of s.443 are as follows:

"443 When FWC must make a protected action ballot order

(1) FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1)."

[11] The legislation as expressed at s.443(1) requires that the Commission must make a protected action ballot order if satisfied the CFMMEU has been, and is, genuinely trying to reach an agreement with Teekay.

[12] For the purposes of s.443(1)(b) of the Act, and having regard to the statutory declaration of Mr Smith in support of the application, I am satisfied on the basis of the unchallenged position of the CFMMEU that it has been, and is, genuinely trying to reach an agreement with Teekay.

Extension of the notice period of any action to be taken

[13] Section 414(2) of the Act requires that written notice of any action to be taken must be provided at least 3 working days prior to the action occurring.

[14] Section 443(5) of the Act allows the Commission to specify a longer period of up to 7 working days where the Commission is satisfied that there are exceptional circumstances justifying the minimum period of notice being longer than 3 working days. Section 443(5) is in the following terms:

"If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days."

[15] As stated above, the CFMMEU has consented to an extension of the notice period from 3 to 5 working days. Teekay raises a number of factors which it submits establish exceptional circumstances in accordance with s.443(5) of the Act:

• the employees to be balloted operate the vessel Ocean Protector on behalf of the Department of Homeland Security and undertake missions in relation to Australia's national security and borders and is considered an essential service;

• the arrangements to replace the crew or vessel in the circumstances of industrial action to ensure that national security requirements are met would be the responsibility of the Commonwealth Government and are likely in most circumstances to take in excess of 7 working days;

• the vessel is at sea often for many weeks at a time and missions are not necessarily predictable;

• weather conditions (including cyclone risk) may mean that it is not possible (or safe) to moor the vessel or halt the vessel on three days' notice if industrial action was to occur;

• it may not be possible for a variety of reasons to moor at Christmas Island within the standard time period; and

• even if the vessel can moor at Christmas Island within the standard time period it may not be possible to arrange for crew transfers or stock provisioning without an extended timeframe.[2]

[16] Despite the agreement of the parties, the Commission itself must be satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, pursuant to s.443(5) of the Act. Having regard to the matters set out above relied on by Teekay, the Commission is satisfied that they constitute factors that are out of the ordinary course, unusual, special or uncommon and may reasonably be viewed as exceptional circumstances for the purposes of s.443(5).[3]

[17] The Commission is further satisfied that on this basis an extension of the notice period is justified and that the Commission is further satisfied that it should exercise its discretion to extend the notification period from 3 to 5 working days, noting that this is within the period allowed under s.443(5) of the Act.

[18] Having regard to the above, I am satisfied that the requirements in s.443(1) of the Act have been met and, accordingly that the order sought in the agreed terms be made.

[19] Order PR728969, based on the draft provided by the CFMMEU, is issued in conjunction with this Decision. It is further noted that the Order will provide that the protected action ballot will close six weeks after commencement of the ballot.

[1] AE429409

[3] See decision of Rares J in Ho v Professional Services Review Committee No 295 [2012] FWA 133 at [10]

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