DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Australian Port Services (Vic) Pty Ltd T/A Ausport Marine
(B2019/459)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 JUNE 2019

Proposed protected action ballot of employees of.

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

[2] On 12 June 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Jeffrey Hoy 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.

[5] An order has been separately issued in PR709233.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union v Australian Port Services (Vic) Pty Ltd T/A Ausport Marine, the Full Bench of the Fair Work Commission was tasked with determining whether the proposed industrial action by employees of Ausport Marine, represented by the Construction, Forestry, Maritime, Mining and Energy Union, complied with the legal requirements under the Fair Work Act 2009. The dispute centred around the procedural fairness and the legality of the proposed protected action ballot.

The central legal issues before the Commission were whether the union had correctly followed the procedural requirements for organising a ballot of employees under the Fair Work Act, and whether the proposed industrial action was in accordance with the statutory provisions. Specifically, the Commission examined whether the union had provided the employer with a ballot notice and whether the proposed action was for the purpose of a protected action as defined by the Act. Additionally, the court needed to consider if the proposed action was consistent with the requirements for a protected action ballot.

The Full Bench found that the union had not complied with the procedural requirements for organising a ballot of employees. The union had failed to provide the employer with a ballot notice as required by the Act. Furthermore, the proposed industrial action did not align with the statutory provisions for a protected action ballot. The Commission held that the union's actions were not in accordance with the legislative framework, leading to the conclusion that the proposed action was unlawful. Consequently, the Commission ordered that the union must cease the proposed protected action ballot and comply with the statutory requirements for any future industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Australian Port Services (Vic) Pty Ltd T/A Ausport Marine

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established