Australian Maritime Officers Union v ASP Ship Management Pty Ltd

[2025] FWC 1455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Maritime Officers Union
v

ASP Ship Management Pty Ltd

(B2025/819)

COMMISSIONER FOX

MELBOURNE, 27 MAY 2025

Proposed protected action ballot of employees of ASP Ship Management Pty Ltd

This is an application by the Australian Maritime Officers Union (AMOU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of ASP Ship Management Pty Ltd (ASP or Employer).

I note that the Australian Institute of Marine and Power Engineers (AIMPE)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 26 May 2025, the Commission was advised that the Employer objected to the application. Following the filing of further material by the Applicant, the Employer advised that it no longer 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 declaration of Chris Neiberding, Senior Industrial Officer, setting out the steps taken by the AMOU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with ASP, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 6 June 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR787697.

This matter will be assigned to a Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement 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.

COMMISSIONER

[1] B2025/818.

[2] This is in effect 8 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers Union (AMOU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of ASP Ship Management Pty Ltd (ASP). The AMOU sought this order under section 437 of the Fair Work Act 2009, aiming to facilitate a ballot of its members to authorise protected industrial action. ASP initially objected to the application, but later withdrew its objection after further material was filed by the AMOU.

The legal issues the court needed to address included whether the AMOU had met the requirements for a protected action ballot under the Fair Work Act, particularly whether the notification period had been appropriately set and whether the union had genuinely attempted to reach an agreement with ASP. The court also needed to decide on the appropriate closing date for the ballot to ensure it complied with the statutory timeframes.

The Commission determined that the AMOU had satisfied the requirements set out in section 443(1) of the Act. The court accepted the declaration from Chris Neiberding, Senior Industrial Officer of AMOU, that the union had genuinely been attempting to reach an agreement with ASP. As a result, the Commission concluded that the notification period had been correctly set and that all statutory requirements were met. The court further established that the ballot would close on 6 June 2025, ensuring compliance with the legal timeframes. The Commission authorised Fair Vote Services Pty Ltd, an approved ballot agent, to conduct the ballot.

In conclusion, the Fair Work Commission granted the AMOU's application for a protected action ballot order, setting the closing date for the ballot as 6 June 2025. A separate order was issued for the compulsory conciliation conference to be conducted under section 448A of the Act. This decision ensures that the ballot process proceeds in accordance with the Fair Work Act, facilitating the potential for protected industrial action if authorised by the AMOU members.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established