Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Marine Technicians Australia Pty Ltd Summary

[2022] FWC 2904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Marine Technicians Australia Pty Ltd

(B2022/1647)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 OCTOBER 2022

Proposed protected action ballot of employees of Marine Technicians Australia Pty Ltd.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australi (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Marine Technicians Australia Pty Ltd (Respondent).

On 31 October 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 Simon Pisoni 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 PR747482.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Deputy President Clancy, considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) against Marine Technicians Australia Pty Ltd (the Employer). The Union sought an order for a protected action ballot under section 437 of the Fair Work Act 2009, to allow its members employed by the Employer to vote on taking protected industrial action. The Union argued that it had been genuinely attempting to reach an agreement with the Employer but had been unsuccessful, and therefore the requirements for a ballot under the Act had been met.

The legal issues before the court involved determining whether the Union had complied with the notification requirements under section 443 of the Act and whether the Union had genuinely attempted to reach an agreement with the Employer before seeking the ballot. The Union had to demonstrate that it had taken reasonable steps to negotiate with the Employer and had been unable to reach an agreement. The Employer did not object to the application, and the court proceeded to consider the matter based on the material submitted, including a declaration by a representative of the Union.

The court found that the Union had satisfied the requirements for a protected action ballot. It was satisfied that the Union had taken reasonable steps to negotiate with the Employer and had not reached an agreement. The Union's declaration and the absence of objection from the Employer were considered in reaching this decision. The court concluded that the Union had met the criteria for a ballot under section 437 of the Act.

The Fair Work Commission issued an order for a protected action ballot to be held in accordance with section 437 of the Fair Work Act 2009. The order was made in the absence of objection from the Employer and based on the evidence provided by the Union. The decision was issued on 31 October 2022, and the order was issued separately in PR747482.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Marine Technicians Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established