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

[2025] FWC 1453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Institute of Marine and Power Engineers
v

ASP Ship Management Pty Ltd

(B2025/818)

COMMISSIONER FOX

MELBOURNE, 27 MAY 2025

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 (AIMPE or 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 (ASP or Employer).

I note that the Australian Maritime Officers’ Union (AMOU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 26 May 2025, the Commission was advised that the Employer objected to the application. Following the filing of further material by the Applicant, the Employer advised that it no longer objected to the application.

In the circumstances, I 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 Nathan Niven, Organiser, setting out the steps taken by the AIMPE in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with ASP, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 6 June 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR787693.

This matter will be assigned to a Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] B2025/819.

[2] This is, in effect, 8 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers (AIMPE) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order permitting a ballot of employees of ASP Ship Management Pty Ltd regarding a proposed enterprise agreement. AIMPE, acting on behalf of its members, sought the ballot to ascertain the employees' support for the proposed agreement, which was the subject of ongoing negotiations with ASP. The Australian Maritime Officers' Union (AMOU) had also applied for a ballot in relation to the same proposed agreement. Initially, ASP objected to AIMPE's application, but later withdrew its objection, leading the Commission to decide the matter based on the submitted documents.

The central legal issue before the Commission was whether the requirements of section 443 of the Fair Work Act had been met for AIMPE to conduct a ballot. Specifically, the Commission had to determine if AIMPE had genuinely been attempting to reach an agreement with ASP and if all procedural prerequisites, including the notification time for the proposed agreement, were satisfied. Additionally, the Commission had to consider the appropriateness of the ballot agent, Fair Vote Services Pty Ltd, and set a closing date for the ballot as per section 443(3)(c) of the Act.

The Commission found that AIMPE had genuinely been attempting to reach an agreement with ASP, as evidenced by the declaration from Nathan Niven, the Organiser for AIMPE, outlining the bargaining steps taken. The Commission also found that all requirements under section 443 of the Act had been met, including the notification period for the proposed agreement. Fair Vote, having been approved as a ballot agent under section 468A of the Act, was deemed suitable to conduct the ballot. The Commission set the closing date for the ballot as 6 June 2025, which aligns with the requested 8 working days from the order date. The Commission also noted that this matter would be assigned to another Member to conduct a compulsory conciliation conference under section 448A, along with the related matter involving AMOU.

The Commission issued an order for the AIMPE ballot to proceed, setting the closing date for the ballot as 6 June 2025. The Commission also made separate arrangements for a compulsory conciliation conference to be conducted by another Member, requiring the attendance of all bargaining representatives to facilitate meaningful negotiations. Directions will likely be issued to ensure the parties' preparedness for the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established