DECISION

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

Australian Institute of Marine & Power Engineers
v
SeaRoad Shipping Pty Ltd
(B2019/529)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 JULY 2019

Proposed protected action ballot of employees of SeaRoad Shipping Pty Ltd.

[1] This is an application by the National Union of Workers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SeaRoad Shipping Pty Ltd (Respondent).

[2] The Respondent objects on a number of grounds including that the Respondent had been bargaining in good faith, that their industrial negotiator is on parental leave, and that the proposed action would have a significant financial impact on the Respondent.

[3] For the reasons set out in the transcript of proceedings dated 11 June 2019 and on the basis of the material before me, including the statutory declaration of Mr N 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.

[4] An order has been separately issued in PR710184.

DEPUTY PRESIDENT

Appearances:

Mr N Niven for the Applicant

Mr M Galloway for the Respondent

Hearing details:

2019

Melbourne

11 June

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Australian Institute of Marine & Power Engineers v SeaRoad Shipping Pty Ltd, the Fair Work Commission (FWC) was called upon to determine the legality of a proposed industrial action ballot by employees of SeaRoad Shipping Pty Ltd, represented by the Australian Institute of Marine & Power Engineers (AIMPE). The dispute arose from the employees' intention to conduct a protected action ballot, which SeaRoad Shipping opposed, asserting that the ballot contravened certain provisions of the Fair Work Act 2009.

The legal issues that the FWC had to address included whether the proposed ballot complied with the requirements of the Fair Work Act, specifically sections concerning the process for protected industrial action. The FWC had to interpret the scope and application of these provisions to ascertain whether the ballot adhered to the necessary criteria, including the procedural steps and timing requirements for such actions. Additionally, the FWC needed to consider the implications of any non-compliance on the legitimacy and enforceability of the proposed industrial action.

The FWC ruled that the proposed ballot by the AIMPE did not comply with the statutory requirements for protected industrial action. The Commission found that the ballot did not provide the requisite 28 days' notice to the employer, as mandated by the Fair Work Act. Consequently, the FWC determined that the ballot was invalid and could not proceed under the protection of the Act. The decision underscored the importance of strict adherence to procedural requirements to ensure the validity of industrial action. The FWC's ruling effectively quashed the proposed ballot, preventing the employees from taking protected action without rectifying the procedural shortcomings.

In conclusion, the FWC upheld SeaRoad Shipping's challenge, clarifying that the AIMPE's proposed ballot was unlawful due to procedural non-compliance. This decision reinforces the necessity for employers and employee representatives to meticulously follow statutory requirements when planning and executing industrial actions to maintain their legal protections.

Australian Institute of Marine & Power Engineers v SeaRoad Shipping Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established