Australian Maritime Officers' Union v Newcastle Port Corporation T/A Port Authority of NSW

[2024] FWC 3445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Maritime Officers' Union
v

Newcastle Port Corporation T/A Port Authority of NSW

(B2024/1619)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 11 DECEMBER 2024

Proposed protected action ballot of employees of Newcastle Port Corporation T/A Port Authority of NSW

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 Newcastle Port Corporation T/A Port Authority of NSW (Newcastle Port Corporation or Employer).

I note that the Construction, Forestry and Maritime Employees Union have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 10 December 2024, the Commission was advised that the Employer, in effect, did not object to the Application, as amended to clarify the group of employees to be balloted and the proposed ballot period.

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 Jengis Osman, 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 Newcastle Port Corporation, 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 20 December 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR782267.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. To the extent that this matter involves any additional bargaining representatives, that Member will issue an Order requiring their attendance 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] B2024/1594.

[2] This is, in effect, 7 working days from the making of the Order and was the 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 a protected action ballot order for certain employees of Newcastle Port Corporation, T/A Port Authority of NSW. The dispute centred around a proposed agreement between the AMOU and the Newcastle Port Corporation, and the Commission was asked to determine whether the conditions for a ballot were satisfied. The Newcastle Port Corporation indicated that it did not object to the application, provided the group of employees to be balloted and the ballot period were clarified.

The key legal issues before the Commission were whether the AMOU had genuinely attempted to reach an agreement with the Newcastle Port Corporation, and whether the requirements for a protected action ballot under section 443 of the Act were fulfilled. The application included a declaration from Jengis Osman, the Industrial Officer of AMOU, detailing the steps taken in bargaining and the union's ongoing efforts to reach an agreement. The Commission had to verify if the union had met all the necessary conditions, including the notification period, and if the ballot agent, Democratic Outcomes Pty Ltd, was eligible under section 468A of the Act.

The Deputy President determined that the AMOU had indeed been genuinely attempting to reach an agreement, and that all requirements for a ballot under section 443(1) of the Act were met. The Commission concluded that the ballot should proceed and set the closing date for voting as 20 December 2024, which was seven working days from the issuance of the order. The Deputy President also noted that a compulsory conciliation conference would be held for the related enterprise agreement, with further directions to ensure the parties were prepared for meaningful negotiations. This decision allowed the ballot to proceed while facilitating further discussions between the AMOU and Newcastle Port Corporation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established