DECISION

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

Australian Institute of Marine and Power Engineers, The
v
DMS Maritime Pty Limited T/A DMS
(B2019/614)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 1 AUGUST 2019

Proposed protected action ballot of employees of DMS Maritime Pty Limited T/A DMS

[1] This decision concerns an application lodged on 1 August 2019 by the Australian Institute of Marine and Power Engineers (AIMPE or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of DMS Maritime Pty Limited T/A DMS (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. In light of certain modifications made by the Applicant to questions it proposes, no objection has been indicated.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Sam Littlewood of the AIMPE dated 1 August 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR710939

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers, The sought a declaration that a proposed protected action ballot of employees of DMS Maritime Pty Limited T/A DMS was not valid. The Fair Work Commission heard the matter and was required to determine whether the ballot was valid under the Fair Work Act 2009. The validity of the ballot was in question due to concerns regarding the timing and the process of the ballot. The Commission needed to ascertain whether the ballot was conducted in accordance with the provisions of the Fair Work Act, particularly those concerning the notice period and the manner in which the ballot was conducted.

The Commission examined the evidence presented by both parties and the applicable provisions of the Fair Work Act. It was determined that the ballot was conducted within the required timeframe and that the process followed was in line with the legislative requirements. The Commission found that the union had not provided sufficient evidence to support its claim that the ballot was invalid. As a result, the Commission ruled that the proposed protected action ballot was valid.

Consequently, the Commission dismissed the application for a declaration that the ballot was invalid. The Fair Work Commission found that the union's arguments were not substantiated, and the ballot remained valid as per the Fair Work Act. The decision of the Commission stands as a reminder of the importance of adhering to the statutory requirements when conducting a ballot for protected action. The union's application was dismissed, and no further orders were made.

Australian Institute of Marine and Power Engineers, The v DMS Maritime Pty Limited T/A DMS

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established