Construction, Forestry, Maritime, Mining and Energy Union T/A Maritime Union of Australia v Bhagwan Marine Pty Ltd

[2022] FWC 455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union T/A Maritime Union of Australia
v

Bhagwan Marine Pty Ltd

(B2022/143)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 MARCH 2022

Proposed protected action ballot of employees of Bhagwan Marine Pty Ltd.

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union T/A Maritime Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Bhagwan Marine Pty Ltd (Respondent).

On 1 March 2022, the Respondent advised that it 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 Aarin Moon 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 PR738908.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union T/A Maritime Union of Australia (Applicant) filed an application under section 437 of the Fair Work Act 2009 seeking a protected action ballot order concerning certain employees of Bhagwan Marine Pty Ltd (Respondent). The Applicant sought the order to facilitate a ballot on proposed protected action, which typically refers to industrial action such as strikes or lock-outs, as part of the bargaining process with the Respondent. The Respondent did not object to the application, and the matter was decided by the Fair Work Commission on the basis of the submitted documentation without the need for a hearing.

The central legal issue before the Deputy President was whether the conditions under section 443(1) of the Fair Work Act had been fulfilled to warrant a protected action ballot. These conditions include the existence of a notification time for the proposed agreement and evidence that the Applicant had genuinely attempted to reach an agreement with the Respondent. The Deputy President was required to examine the declaration provided by Mr. Aarin Moon of the Applicant, which detailed the bargaining steps taken and the Applicant's ongoing efforts to reach an agreement. The Deputy President's decision hinged on verifying that these conditions were met to grant the protected action ballot order.

In determining the matter, the Deputy President examined the evidence provided, including Mr. Moon's declaration, and concluded that the notification time for the proposed agreement was in effect and that the Applicant had genuinely tried to negotiate with the Respondent. Consequently, the Deputy President was satisfied that all requirements under section 443(1) of the Act were fulfilled. Therefore, the Deputy President issued an order permitting the Applicant to proceed with the protected action ballot among the employees of Bhagwan Marine Pty Ltd. The decision underscores the importance of genuine bargaining efforts and adherence to statutory requirements in facilitating industrial actions under the Fair Work Act.

The Deputy President's decision was made on 1 March 2022, and an order was issued in PR738908, allowing the Applicant to conduct the ballot. This outcome reflects the Fair Work Commission's role in ensuring that protected action ballots are conducted in accordance with the legislative framework designed to balance the rights of employers and employees during industrial disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established