Australian Maritime Officers' Union v Noorton Pty Ltd T/A Nrma Fast Ferry

[2023] FWC 1697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Maritime Officers' Union

Noorton Pty Ltd T/A Nrma Fast Ferry

(B2023/701)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 JULY 2023

Proposed protected action ballot of employees of Noorton 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, Noorton Pty Ltd T/A NRMA Fast Ferry (NRMA or Respondent).

On 13 July 2023, the Commission was advised that the Respondent did not object to the Application as amended to clarify the employees intended to be balloted under the Order.

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 Martin McEvilly, AMOU Industrial Officer, setting out the steps taken by the AMOU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with NRMA, 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 (13 July 2023) has been established by this Commission.[1]

An order has been separately issued in PR764196.

This matter will be assigned to Deputy President Wright to conduct the s.448A conference in conjunction with related matter B2023/671. To the extent that this matter involves additional bargaining representatives, the Deputy President will also issue the Order requiring their attendance at the conference.

DEPUTY PRESIDENT

[1] This 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) filed an application under section 437 of the Fair Work Act 2009 seeking a protected action ballot order for specific employees of Noorton Pty Ltd T/A NRMA Fast Ferry (NRMA). This decision pertains to a proposed industrial action ballot by the union to gauge employee sentiment regarding potential strike action. The application was heard by the Fair Work Commission, with Deputy President Hampton presiding over the matter. The Respondent did not object to the application, which was subsequently amended to clarify the employees intended to be balloted under the order.

The primary legal issue before the court was whether the AMOU had genuinely attempted to negotiate with NRMA and if the requirements under section 443(1) of the Fair Work Act were met. The court had to determine if there was a notification period for the proposed agreement and whether all conditions for a protected action ballot were satisfied. The AMOU's declaration, which outlined the bargaining efforts and the genuine intent to reach an agreement with NRMA, played a crucial role in this determination.

The Deputy President was satisfied that the AMOU had genuinely tried to reach an agreement with NRMA and that a notification period existed for the proposed agreement. The court found that all the requirements under section 443(1) of the Fair Work Act were fulfilled. Consequently, the court decided to issue the protected action ballot order. The ballot will be conducted by the Australian Electoral Commission, with a ballot period of 30 working days from the date of the order, which was 13 July 2023. This decision marks the first step in the process leading up to potential industrial action by the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established