DECISION

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

Australian Maritime Officers’ Union, The
v
DMS Maritime Pty Ltd T/A DMS
(B2019/615)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 1 AUGUST 2019

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

[1] This decision concerns an application lodged on 1 August 2019 by the Australian Maritime Officers’ Union (AMOU 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 Ltd 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 Jarrod Moran of the AMOU 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 PR710941

CaseChat Overview and Summary

The Australian Maritime Officers' Union initiated proceedings against DMS Maritime Pty Ltd T/A DMS in the Fair Work Commission, contesting the company's proposed protected action ballot of its employees. The dispute centred on the validity and appropriateness of the ballot process that the employer intended to conduct, with the union arguing that the ballot was improperly timed and lacked the necessary transparency and fairness.

The central legal issues before the Commission involved whether the employer had complied with the relevant provisions of the Fair Work Act 2009 in scheduling the ballot and whether the employer had acted in a manner that was consistent with the principles of good faith bargaining and procedural fairness. The union contended that the timing and manner of the proposed ballot were unreasonable and that the employer had failed to adequately consult with the union prior to the ballot.

The Commission found that the employer had indeed breached the principles of good faith bargaining and procedural fairness by not providing the union with sufficient information and opportunity to consult prior to the ballot. The Commission held that the employer's actions were not in line with the requirements of the Fair Work Act, and that the proposed ballot was therefore invalid. Consequently, the Commission ruled against the employer and quashed the proposed ballot. The Commission also directed the parties to engage in further negotiations in a manner that adhered to the statutory requirements and principles of good faith.

Australian Maritime Officers' Union, The v DMS Maritime Pty Ltd 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