Australian Institute of Marine and Power Engineers & Australian Maritime Officers' Union v Smit

[2025] FWC 246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Australian Institute of Marine and Power Engineers & Australian Maritime Officers' Union

Smit Lamnalco Towage (Australia) Pty Ltd

(B2025/165)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 JANUARY 2025

Applications to extend the 30 day period in relation to B2024/1634 and B2024/1636.

This matter concerns the declarations of the results of protected action ballots PR782435 held in matter B2024/1634 and PR782438 held in matter B2024/1636 declared on 6 January 2025 and 7 January 2025 respectively.

The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers' Union have each made application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day periods in which industrial action is authorised by the relevant protected action ballots. To the extent that this involves a joint application that is not contemplated by the Fair Work Commission Rules 2024, I have waived compliance with those rules.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application contends that each of the relevant requirements have been met and that the periods in each case should be extended by a further 30 days.

Smit Lamnalco Towage (Australia) Pty Ltd (Employer) has advised the Commission it has no objection to the applications.

I am satisfied that the relevant requirements of the Act have been met and that the applications should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day periods for the commencement of protected industrial action for eligible employees who were subject to the ballots and are employed by the Employer be extended by a further 30 days in each case.

This order will operate on and from 4 February 2025 for the employees who were subject to PR782435 and 5 February 2025 for the employees who were subject to PR782438.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider applications by the Australian Institute of Marine and Power Engineers and the Australian Maritime Officers' Union to extend the 30-day period in which industrial action can be taken based on the outcomes of two protected action ballots. The Commission was asked to extend these periods beyond the statutory limit, in accordance with section 459(3) of the Fair Work Act 2009. The applications were made in relation to ballots PR782435 and PR782438, declared on 6 and 7 January 2025 respectively. The employer, Smit Lamnalco Towage (Australia) Pty Ltd, did not object to the applications.

The legal issue before the Commission was whether the statutory requirements for extending the 30-day period for protected industrial action had been satisfied. The applicants needed to demonstrate that they had applied for an extension within the prescribed timeframe and that the period had not been previously extended. The Commission needed to determine if the applications met these criteria and if it was appropriate to grant the extensions.

The Commission found that the applicants had satisfied all the requirements for an extension. The applications were made within the timeframe specified by the Act, and the 30-day periods had not been extended before. The employer did not oppose the applications, which supported the granting of the extensions. The Deputy President concluded that the applications should be approved, leading to an extension of the 30-day periods by a further 30 days. The extended periods would begin on 4 February 2025 for the employees subject to ballot PR782435 and 5 February 2025 for those subject to ballot PR782438.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established