Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage (Australia) Pty Ltd

[2024] FWC 3484

[2024] FWC 3484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Institute of Marine and Power Engineers
v

Smit Lamnalco Towage (Australia) Pty Ltd

(B2024/1634)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 13 DECEMBER 2024

Proposed protected action ballot of employees of Smit Lamnalco Towage (Australia) Pty Ltd

1. 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 Smit Lamnalco Towage (Australia) Pty Ltd (Smit Lamnalco or Employer).

1. On 13 December 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended to include an extended notice period of industrial action and the inclusion of a safety exemption in Clause 5 of the Order. This was agreed.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Greg Yates, Senior National 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 Smit Lamnalco, 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.

1. 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.

1. 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 January 2025. The Applicant sought the ballot to close 7 days from the commencement of the ballot, which can commence no less than 3 working days after the making of the Order given the requirements of clauses 6 and 7. As the date proposed would then fall on a public holiday, the usual practice would be to have the ballot close on the next business day. However, given the closure of Fair Vote in that period, the next available business day is 6 January 2025. In setting the ballot closure date I have also had regard to the Commission’s capacity to conduct a s.448A conference within this period. This date also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended minimum period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of 7 working days applies to the items listed within Clause five (5) of the Order concerning stoppages for LNG terminal towage work.

1. An Order has been separately issued in PR782435.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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.

DEPUTY PRESIDENT

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