Australian Workers' Union, The v Tidewater Ship Management (Australia) Pty Ltd

[2024] FWC 874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v

Tidewater Ship Management (Australia) Pty Ltd

(B2024/404)

DEPUTY PRESIDENT BINET

PERTH, 5 APRIL 2024

Proposed protected action ballot of employees of Tidewater Ship Management (Australia) Pty Ltd

This is an application by the Australia Workers Union (AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Tidewater Ship Management (Australia) Pty Ltd (Tidewater).

On 4 April 2024, the Fair Work Commission (FWC) was advised that Tidewater did not, in effect, 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 Jason Lipscombe, Organiser, setting out the steps taken by the AWU in bargaining with Tidewater and that it has been, and is, genuinely trying to reach agreement with them, 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 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.

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 19 April 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 PR773192.

This matter will be listed for a s.448A compulsory conciliation conference. A separate Order will be issued 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, 6 days after the expected Commencement Date of the ballot (14 days from the making of this order), as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Workers' Union versus Tidewater Ship Management (Australia) Pty Ltd, the Fair Work Commission was asked to consider an application by the union for a protected action ballot order in relation to certain employees of Tidewater Ship Management. The union sought the order to facilitate potential protected actions by the employees. The Fair Work Commission, under Deputy President Binet, accepted that Tidewater did not object to the application and proceeded to determine the matter on the basis of the documents submitted, without requiring a hearing.

The legal issues that the Fair Work Commission had to address involved whether the union had genuinely tried to reach an agreement with the employer and whether all the statutory requirements for a protected action ballot had been satisfied. The union's application included a declaration from Mr. Jason Lipscombe, the union's Organiser, which detailed the steps taken in bargaining with the employer and confirmed the union's genuine attempts to reach an agreement. The Commission also had to determine the closing date for the voting period for the ballot.

The Fair Work Commission found that the union had met all the requirements under the Fair Work Act 2009. The Commission was satisfied that the union had genuinely attempted to reach an agreement with the employer and that the notification period for the proposed agreement was valid. Furthermore, the Commission approved the proposed closing date for the ballot, which was set to be six days after the expected commencement date of the ballot. This decision established the ballot period for the purposes of further statutory requirements. Additionally, the Commission arranged for a compulsory conciliation conference to facilitate meaningful negotiations between the parties.

The Fair Work Commission issued an order for the ballot to be conducted by the approved ballot agent, Democratic Outcomes Pty Ltd T/A CiVS. The Commission also set a date for the conciliation conference and directed that all bargaining representatives attend. The order established the closing date for the ballot as 19 April 2024 and mandated that the union and the employer prepare for the conciliation conference to ensure meaningful negotiations could take place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established