Australian Maritime Officers' Union v OSM Australia Pty Ltd T/A OSM Australia

[2023] FWC 2435

[2023] FWC 2435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Maritime Officers' Union
v

OSM Australia Pty Ltd T/A OSM Australia

(B2023/1010)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 22 SEPTEMBER 2023

Proposed protected action ballot of employees of OSM Australia Pty Ltd T/A OSM Australia

1. 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 OSM Australia Pty Ltd T/A OSM Australia (OSM Australia or Employer). 

1. On 21 September 2023, the Commission was advised that OSM Australia did not, in effect, object to the Application, as subsequently amended to provide an extended period of notice of industrial action as addressed below.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Jarrod Moran, 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 OSM Australia, 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.  

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

1. 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 12 October 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5) of the Act, justifying a seven (7) working days period of written notice for the purposes of s.414(2)(b) of the Act, when taking industrial action as defined in Questions 1 to 23.

1. An Order has been separately issued in PR766438.

1. 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 involved 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This is, in effect, thirteen (13) working days from the date effect of the Order, or 10 working days from the commencement of the ballot, as sought in the amended application.

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