Australian Maritime Officers' Union v ASP Ship Management Pty Ltd

[2024] FWC 3234

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Maritime Officers' Union
v

ASP Ship Management Pty Ltd

(B2024/1511)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 22 NOVEMBER 2024

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).

On 21 November 2024, the Commission was advised that the Employer, in effect, 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 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 December 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781545.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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.

DEPUTY PRESIDENT

[1] This is, in effect, 10 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 under section 437 of the Fair Work Act 2009 for an order to conduct a protected action ballot for certain employees of ASP Ship Management Pty Ltd. The employer did not object to the application, and the Deputy President, Clancy, decided to determine the matter without a hearing based on the documents provided. The application was made to facilitate a ballot for industrial action by the employees, with Democratic Outcomes Pty Ltd appointed as the ballot agent.

The legal issues the court needed to decide included whether the union had genuinely tried to reach an agreement with the employer, whether there was a notification time for the proposed agreement, and whether all requirements under section 443(1) of the Act were met. The court examined the declaration of Chris Neiberding, a Senior Industrial Officer, which detailed the union's efforts to negotiate with the employer. The court concluded that the union had indeed been genuinely trying to reach an agreement and that all statutory requirements for a protected action ballot were satisfied.

The Deputy President issued an order permitting the ballot to proceed, setting the closing date for voting on 6 December 2024. The decision also directed the conduct of a compulsory conciliation conference under section 448A, to be handled by another member of the Commission, to ensure meaningful negotiations between the parties. This conference aimed to resolve the underlying dispute and prevent the need for industrial action. The court's decision facilitated the process of democratic decision-making among the employees while also encouraging further negotiations between the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established