DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
(B2021/58)

Proposed protected action ballot of employees of Qube Ports Pty Ltd T/A Qube Ports and Bulk – Employees at the Port of Dampier – Order granted.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to s 437 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Application was supported by a statutory declaration from Mr Joel Vincent O’Brien the North-West Regional Organiser of the Maritime Union of Australia Division of the CFMMEU (Mr O’Brien).

[3] The CFMMEU seeks an order for a ballot to be conducted of employees of Cube Ports Pty Ltd T/A Qube Ports and Bulk (Qube) whose employment is covered by terms of the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2016 (Agreement) 1 who are represented by the CFMMEU, or who are bargaining representatives for themselves but are members of the CFMMEU (Employees).

[4] The Application was the subject of a conference on 11 February 2021 following email advice from Qube that the Application was opposed (Conference).

[5] Qube sought permission to be represented by a lawyer at the Conference. The granting of leave to Qube was not opposed by the CFMMEU.

[6] Having considered the submissions of the CFMMEU and Qube, leave was granted to Qube to be represented pursuant to s 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[7] In accordance with directions issued to the parties on 9 February 2021 the parties filed outlines of submission, copies of the authorities on which they relied, and substantial documentary and written evidence in advance of the Conference.

Background

[8] Qube's stevedoring business provides stevedoring services at 34 common user ports throughout Australia. It primarily provides services related to the import and export of mainly

non-containerised freight, such as automotive, forestry, mining, bulk and break bulk products.

[9] Qube employs a large workforce of stevedores to meet the needs of its clients.

[10] The employees are currently covered by about 19 enterprise agreements (EBAs) which apply on a port by port basis. Each of the EBAs were negotiated with the CFMMEU acting as a bargaining representative for the employees.

[11] The structure of each of the EBAs is broadly the same and comprises:

a. Part A, which is negotiated with the CFMMEU’s national officials and is included in each EBA (and thus applies nationally); and

b. Part B, which is generally negotiated with local CFMMEU officials and employee representatives, and sets out additional local terms and conditions at the relevant port.

[12] The Agreement relates to Qube’s operations at the Port of Dampier. The Agreement reached its nominal expiry date on 30 June 2020.

[13] Qube issued a Notice of Employee Representational Rights (NERR) to the Employees on 1 October 2019.

[14] Bargaining for the Part A portion of a new enterprise agreement began shortly thereafter (Proposed Agreement). An in principle agreement, in relation to Part A, was reached on 17 July 2020.

[15] Negotiations in relation to the Part B portion of the Proposed Agreement commenced on 10 June 2020.

[16] The next negotiation meeting is scheduled for 22 February 2021.

Consideration

[17] The FWC is obliged to issue a protected ballot order in the following circumstances:

443 When the FWC must make a protected action ballot order

(1) The 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) the 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) The 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).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) 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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[18] Section 437 relevantly provides as follows:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[19] It is not in dispute that the CFMMEU has standing to make the Application in its capacity as a bargaining representative. The notification time in relation to the Proposed Agreement is 1 October 2019. The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.

[20] The Application specifies the group of employees who are to be balloted.

[21] The CFMMEU have proposed that the Australian Electoral Commission conduct the ballot. In the course of the Conference the parties agreed that the date by which the ballot should close would be six weeks from the date that any order is granted, to accommodate delays arising from the COVID-19 pandemic.

[22] The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[23] The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cth).

[24] I am therefore satisfied that the Application has been made in accordance with s 437 of the FW Act.

[25] The FWC may only make the order sought if the 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.

[26] The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is” imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.

[27] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union ² (Esso Case), the Full Bench stated:

“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad” 3 (references omitted)

[28] In Total Marine Services Pty Ltd v Maritime Union of Australia,⁴ a Full Bench of Fair Work Australia relevantly stated:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”

[29] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.

[30] The CFMMEU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date. During the Conference, the parties agreed to arrangements to address issues impacting on bargaining to date.

[31] In all of the circumstances, I am satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with Qube.

[32] Pursuant to s 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) requires three working days’ notice, or any longer period specified in the protected action ballot order.

[33] Qube submits that, if an order is to be made, the FWC should exercise its discretion to increase the sub-s 414(2)(a) notice period of three working days.

[34] Section 443(5) of the FW Act provides that:

“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.”

[35] This requires consideration of:⁵

a. whether the circumstances are ‘exceptional’;

b. whether the ‘exceptional circumstances’ justify a requirement of notice longer than the statutory default; and

c. what the period of notice should be up to a maximum of seven days.

[36] The determination of whether the circumstances of a particular case are ‘exceptional’ involves an evaluative judgement of those circumstances. Circumstances may be “exceptional” if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare, or unexpected. For this purpose, “circumstances” may include a combination of factors which together produce a situation that is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be “exceptional”.⁶

[37] Determining whether the “exceptional circumstances” justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.

[38] Having concluded that particular circumstances are exceptional and that they justify a requirement of a notice period longer than the statutory default, a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be. ⁷

[39] Qube provided evidence in support of its assertion that exceptional circumstances currently exist which justify a requirement for a longer notice period. The evidence indicates that there is the potential for significant impacts to Qube, its customers and other third parties if the notice period is not extended.

[40] The nature of Qube’s stevedoring operations and contracts means that its clients, other third parties and the community rely on Qube to be able to service them within limited time windows.

[41] The remoteness of Dampier requires Qube to mobilise workforces in Perth, Tasmania, Victoria, Sydney and Darwin to travel to Western Australia, and perform work during any period of industrial action. According to Qube, it takes approximately two days to mobilise Perth employees and approximately three to five days to mobilise East Coast employees.

[42] The evidence is that COVID-19 has significantly exacerbated the challenges of obtaining an alternative workforce to ensure continuity of operations, given:

a. the rapid and ongoing nature of changes to State border arrangements;

b. the potential for visitors to Western Australia to have to enter 14 days quarantine; and

c. the requirements associated with Western Australia’s GTG PASS registration process.

[43] Qube typically transports cargo by road to mine sites. Due to the size of the equipment, the vehicles involved in the transport are often oversized, and require permits issued by WA Main Roads for travel on designated routes and at relevant times according to an approved route plan. There are also "escort crews" (i.e. small support vehicles, etc.) required to escort the vehicles on all public roads. If the cargo is not discharged on time, then it is extremely difficult to adhere to these transport requirements and, generally, the process needs to be restarted at significant cost to Qube and its customers.

[44] From time to time, the oversize transport movements involve the lifting of power lines, and there are significant preparatory steps and costs associated with planning this. Changes to the schedule can cause significant delay and cost overruns. Importantly, if the mines do not receive their equipment as planned, it can impact their operations.

[45] The shared nature of the berth at Dampier makes it extremely difficult to cope with any delays. Generally, once a vessel is on berth, it remains there until loaded or unloaded. If there is delay, other vessels are required to anchor and miss their berth. This means associated logistics arrangements are impacted, as are those of any third party.

[46] I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period. In light of the evidence before me, I have determined to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to five working days is appropriate in all the circumstances.

[47] Having been satisfied that the requirements of sub-ss 443(1)(a) and (b) of the FW Act have been complied with, the Application is granted and a protected action ballot order has been issued. 8

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR726895>

 1   AE424044.

2 [2015] FWCFB 210.

3 Ibid [57].

4 [2009] FWAFB 368.

5 National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011, [23]-[25].

⁶ Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848, [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99, [7]-[8].

7 National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011, [25].

 8   PR726894.