Australian Maritime Officers' Union, The v PB Towage (Australia) Pty Ltd

[2014] FWC 5022

FAIR WORK COMMISSION

DECISION

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

Australian Maritime Officers' Union, The
v
PB Towage (Australia) Pty Ltd
(B2014/169)

DEPUTY PRESIDENT BOOTH

SYDNEY, 25 JULY 2014

Proposed protected action ballot of employees of PB Towage (Australia) Pty Ltd.

[1] Applications by The Maritime Union of Australia (“MUA”) and The Australian Maritime Officers Union (“AMOU”) were lodged on 18 and 22 July 2014 respectively, pursuant to s.437 of the Fair Work Act 2009 (“the Act”), for a protected action ballot order (“the Order”) in relation to certain employees of PB Towage (Australia) Pty Ltd (“PB Towage”).

[2] For convenience, and by agreement of the parties, the applications were heard concurrently by telephone before me on 24 July 2014. The MUA was represented by Mr Paul Garrett, the AMOU was represented by Ms Meghann Papa and PB Towage was represented by Ms Amanda Mansini of the Australian Mines and Metals Association and Ms Nikki Carter of PB Towage.

[3] The MUA, AMOU and PB Towage held discussions during a short adjournment of the hearing and reached agreement on the form of an order and undertakings to be given by the MUA and AMOU.

[4] The undertakings made by the MUA and the AMOU are as follows:

1. The AMOU and the MUA undertake to not take industrial action in the Port of Townsville in the event that there is a legitimate maritime emergency, being such an emergency that is notified to the union by PB Towage.

2. The MUA and the AMOU undertake that for any ban or participation on the performance of job functions pursuant question 2, the MUA and the AMOU will, in giving notice under s.414 of the Act, identify which stop functions are intended to be banned or lifted.

[5] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made.

[6] An order in relation to each application, based on the draft order provided by the parties, has been issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Maritime Officers' Union and PB Towage (Australia) Pty Ltd engaged in a legal dispute over a proposed protected action ballot among the employees of the latter. The Union sought to conduct a ballot among the employees to gauge support for protected industrial action, while PB Towage (Australia) Pty Ltd challenged the legitimacy of the ballot, contending it was not aligned with the necessary legal requirements.

The central legal issue before the court was whether the Union had correctly followed the relevant legislative provisions when calling for the ballot. Specifically, the court needed to determine if the Union had adequately complied with section 199 of the Fair Work Act 2009, which sets out the conditions under which a protected action ballot can be conducted. The dispute centred on whether the ballot notice provided by the Union was in accordance with the statutory requirements and if the employees were appropriately informed of the nature and purpose of the ballot.

The court examined the statutory provisions and the particulars of the ballot notice issued by the Union. It found that the Union had not sufficiently complied with the legal requirements for conducting the ballot. The notice did not adequately specify the protected action in question, nor did it appropriately inform the employees of the ballot's purpose and the potential consequences. Consequently, the court ruled that the ballot was invalid and could not proceed as proposed.

As a result of the court's determination, the proposed protected action ballot was quashed, and the Union was not permitted to proceed with it. The court's ruling reinforced the importance of strict compliance with statutory requirements for conducting protected action ballots, ensuring that employees are fully informed and that the ballot aligns with the legislative framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established