Australian Maritime Officers' Union, The v Poseidon Sea Pilots Pty Ltd

[2023] FWC 1519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Maritime Officers' Union, The
v

Poseidon Sea Pilots Pty Ltd

(B2023/636)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 JUNE 2023

Proposed protected action ballot of employees of Poseidon Sea Pilots Pty Ltd

This is an application by the Australian Maritime Officers’ Union (AMOU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Poseidon Sea Pilots Pty Ltd (Poseidon).

On 23 June 2023, the Commission was advised that the Respondent did not object 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 declaration of Ms Tracey Ellis, AMOU Senior Organiser, 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 all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (23 June 2023) has been established by this Commission.[1]

An order has been separately issued in PR763551.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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

[1] 1This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union (AMOU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Poseidon Sea Pilots Pty Ltd (Poseidon). The union sought to conduct a ballot to determine if the employees were in favour of protected action. Poseidon did not object to the application. Consequently, the Deputy President Hampton decided to determine the matter without holding a hearing. The decision was made based on the material provided, including a declaration by Ms Tracey Ellis, AMOU Senior Organiser, which outlined the union's efforts to reach an agreement with Poseidon.

The legal issues before the court included whether the union had fulfilled the necessary requirements to conduct a protected action ballot. Specifically, the court had to determine if the union had genuinely tried to reach an agreement with Poseidon and if there was a notification time in relation to the proposed agreement. The court also had to establish the ballot period for the ballot to be conducted by the Australian Electoral Commission.

In reaching the decision, the Deputy President Hampton was satisfied that the union had been genuinely trying to reach an agreement with Poseidon and that all the requirements in section 443(1) of the Fair Work Act 2009 had been met. The court established a ballot period of 30 working days from the date of the order, 23 June 2023, which was the minimum period required by the Australian Electoral Commission. The ballot was to be conducted by the Australian Electoral Commission. A separate order was issued in PR763551, and the matter was assigned to another member of the Commission to conduct the section 448A conference. The Deputy President Hampton also indicated that directions would likely be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established