Australian Institute of Marine and Power Engineers, The v ASP Ship Management Pty Ltd Summary

[2023] FWC 566

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Institute of Marine and Power Engineers, The
v

ASP Ship Management Pty Ltd

(B2023/208)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 MARCH 2023

Proposed protected action ballot of employees of ASP Ship Management Pty Ltd

This is an application by the Australian Institute of Marine and Power Engineers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of ASP Ship Management Pty Ltd (Respondent).

The Respondent was given an opportunity to raise any objections to the application. No response was received. Accordingly, I have proceeded on the basis that the Respondent does not have any objections to the application and have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Nathan Niven of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR760114.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers (Applicant) lodged an application under section 437 of the Fair Work Act 2009 against ASP Ship Management Pty Ltd (Respondent) for a protected action ballot order concerning certain employees of the Respondent. The Applicant sought to conduct a ballot for protected action, and the Respondent did not raise any objections to the application. Consequently, the Deputy President, Clancy, decided to proceed with the matter based on the submitted documents without the need for a hearing.

The primary legal issue before the court was whether the Applicant had satisfied the statutory requirements under section 443(1) of the Fair Work Act to conduct a protected action ballot. The Applicant had to demonstrate that it had been genuinely attempting to reach an agreement with the Respondent and that a notification period had elapsed for the proposed agreement. The court needed to determine whether these conditions were met based on the information provided by the Applicant.

Upon reviewing the material, including the declaration from Mr Nathan Niven of the Applicant, the Deputy President, Clancy, found that the Applicant had indeed been genuinely trying to reach an agreement with the Respondent and that the notification period for the proposed agreement had passed. Consequently, the court was satisfied that the requirements under section 443(1) of the Act had been fulfilled. The Deputy President issued an order separately in PR760114, granting the Applicant's request for a protected action ballot.

The court's decision was based on the Applicant's submission that it had been genuinely attempting to reach an agreement with the Respondent and that the notification period had elapsed for the proposed agreement. The Deputy President, Clancy, found these assertions to be substantiated, and therefore, granted the Applicant's request for a protected action ballot. The final orders were issued in PR760114, allowing the ballot to proceed as requested by the Applicant.

Australian Institute of Marine and Power Engineers, The v ASP Ship Management Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established