Construction, Forestry, Maritime, Mining and Energy Union v ASP Ship Management Pty Ltd Summary

[2022] FWC 396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

ASP Ship Management Pty Ltd

(B2022/101)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 FEBRUARY 2022

Proposed protected action ballot of employees of ASP Ship Management Pty Ltd

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

On 23 February 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of George Gakis of the Applicant declared on 21 February 2022, 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 PR738714.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (the "Applicant") filed an application under section 437 of the Fair Work Act 2009 (the "Act") for a protected action ballot order in relation to specific employees of ASP Ship Management Pty Ltd (the "Respondent"). The dispute was heard by the Fair Work Commission, and the Vice President Catanzariti made the decision on 24 February 2022. Notably, the Respondent did not oppose the application, allowing the matter to be decided on the papers without the need for a hearing.

The central legal issue in this case was whether the requirements under section 443(1) of the Act had been fulfilled to permit the Applicant to proceed with a protected action ballot. This involved determining if there was a notification period for the proposed agreement and whether the Applicant had genuinely attempted to reach an agreement with the Respondent. The evidence presented included a statutory declaration from George Gakis of the Applicant, which outlined the steps taken during the bargaining process and the Applicant's efforts to reach an agreement with the Respondent.

The Vice President Catanzariti was satisfied, based on the material before him, that the notification period for the proposed agreement was in place and that the Applicant had genuinely tried to reach an agreement with the Respondent. Consequently, the requirements under section 443(1) of the Act were met, allowing the Applicant to proceed with the protected action ballot. The Commission issued a separate order in PR738714 to facilitate this process.

Construction, Forestry, Maritime, Mining and Energy Union v ASP Ship Management Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established