Australian Maritime Officers' Union v ASP Ship Management Pty Ltd

[2022] FWC 3048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Maritime Officers’ Union

ASP Ship Management Pty Ltd

(B2022/1722)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 NOVEMBER 2022

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

This is an application by the Australian Maritime Officers’ Union (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 (Respondent).

On 16 November 2022, my Associate 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 Mr Chris Neiberding of the Applicant 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 the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR747997.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers’ Union filed an application under section 437 of the Fair Work Act 2009 seeking a protected action ballot order concerning certain employees of ASP Ship Management Pty Ltd. The matter was heard by Deputy President Clancy on 16 November 2022 in Melbourne. The Union's application was made in good faith, following unsuccessful negotiations with ASP Ship Management Pty Ltd. The Deputy President determined the matter on the papers, as the Respondent did not object to the application.

The primary legal issue before the Deputy President was whether the requirements for a protected action ballot under section 437 of the Act had been met. The Union had to demonstrate that it had genuinely attempted to reach an agreement with the Respondent, and that a notification time in relation to the proposed agreement had been met. Additionally, the Deputy President had to ensure that the requirements under section 443(1) of the Act were satisfied.

The Deputy President examined the material submitted, including the declaration of Mr Chris Neiberding, who represented the Union. The declaration outlined the Union's efforts in bargaining with the Respondent and confirmed that the Union had been genuinely trying to reach an agreement. The Deputy President was satisfied that the requirements for a protected action ballot had been met, and thus issued an order in PR747997.

The Deputy President Clancy granted the Union's application for a protected action ballot order, as the Union had demonstrated its genuine attempts to reach an agreement with ASP Ship Management Pty Ltd. The decision was based on the material submitted and the declaration of Mr Chris Neiberding. An order was issued in PR747997, allowing the Union to proceed with the ballot for protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established