Australian Maritime Officers' Union Construction, Forestry, Maritime, Mining and Energy Union v Smit Lamnalco Towage (Australia) Pty Ltd

[2022] FWC 1186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Maritime Officers’ Union
Construction, Forestry, Maritime, Mining and Energy Union
v

Smit Lamnalco Towage (Australia) Pty Ltd

(B2022/437)

VICE PRESIDENT CATANZARITI

PERTH, 16 MAY 2022

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

This is an application by the Australian Maritime Officers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union (Applicants) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Smit Lamnalco Towage (Australia) Pty Ltd (Respondent).

On 16 May 2022, the Fair Work Commission was advised that the Respondent neither consented nor 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 statutory declarations of Christopher Claydon and Paul Gallagher of the Applicants declared on 12 May 2022, setting out the steps taken in bargaining with the Respondent and that they have been, and are, 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 PR741657.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Australian Maritime Officers' Union and the Construction, Forestry, Maritime, Mining and Energy Union filed an application under section 437 of the Fair Work Act 2009 against Smit Lamnalco Towage (Australia) Pty Ltd. The unions sought an order for a protected action ballot to be held among certain employees of the respondent company. The matter was determined by Vice President Catanzariti of the Fair Work Commission on 16 May 2022, with no hearing held due to the absence of objection or consent from the respondent.

The legal issues before the court involved whether the unions had genuinely attempted to negotiate with the respondent and whether the statutory requirements for a protected action ballot had been satisfied. The unions submitted statutory declarations affirming their efforts to reach an agreement with the respondent, and the vice president accepted these declarations as evidence of genuine negotiation attempts. The court had to determine if these efforts met the statutory requirements for initiating a protected action ballot.

Vice President Catanzariti examined the evidence presented by the unions, including the statutory declarations, and concluded that the unions had indeed made genuine efforts to negotiate with the respondent. The vice president found that the requirements under section 443(1) of the Act had been fulfilled, thereby satisfying the conditions for granting the ballot order. Consequently, the court issued an order in PR741657 allowing the protected action ballot to proceed.

The final orders included an authorization for the unions to conduct a protected action ballot among the specified employees of Smit Lamnalco Towage (Australia) Pty Ltd, as per the provisions of the Fair Work Act 2009. This decision facilitated the unions' ability to proceed with the ballot, enabling employees to express their views on potential protected actions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established