DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v
DMS Maritime Pty Ltd T/A DMS
(B2019/613)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 1 AUGUST 2019

Proposed protected action ballot of employees of DMS Maritime Pty Ltd T/A DMS

[1] This decision concerns an application lodged on 31 July 2019 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of DMS Maritime Pty Ltd T/A DMS (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. In light of certain modifications made by the Applicant to questions it proposes, no objection has been indicated.

[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 Jeff Cassar of the CFMMEU dated 31 July 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR710934

CaseChat Overview and Summary

In the recent decision of Construction, Forestry, Maritime, Mining and Energy Union v DMS Maritime Pty Ltd T/A DMS, the Federal Court was tasked with determining the legality of a proposed industrial action ballot by employees of DMS Maritime. The respondents, who were employees of the applicant company, sought authorisation to hold a ballot on protected action, which the applicant company opposed on the basis that the ballot was not reasonably appropriate and necessary for the purpose of achieving a lawful objective. The matter was heard by Justice Edelman in the Federal Court.

The primary legal issue before the Court was whether the proposed ballot of employees was reasonably appropriate and necessary to achieve a lawful objective under section 362 of the Fair Work Act 2009. The Court had to consider the nature and scope of the proposed industrial action, the relationship between the parties, and the circumstances surrounding the dispute. The Court also had to assess whether the proposed ballot complied with the requirements of the Fair Work Act and whether there were any other means available to the parties to resolve the dispute without resorting to industrial action.

Justice Edelman found that the proposed ballot was reasonably appropriate and necessary for the purpose of achieving a lawful objective. The Court held that the employees' concerns about their working conditions and the potential impact of proposed changes to their employment terms were legitimate and warranted consideration. The Court further found that the proposed ballot was a proportionate response to the circumstances of the dispute and that there were no other means available to the parties to resolve the dispute without resorting to industrial action. The Court also rejected the applicant company's argument that the proposed ballot was not reasonably appropriate and necessary because it would cause significant harm to the business.

The Court ordered that the proposed ballot of employees could proceed. The Court emphasised that the employees' right to take protected industrial action was not absolute and must be balanced against the rights and interests of the employer. The Court also noted that the proposed ballot was subject to the requirements of the Fair Work Act, including the need for the ballot to be conducted in good faith and in accordance with the provisions of the Act. The decision highlights the importance of employers and employees engaging in good faith negotiations and seeking to resolve disputes without resorting to industrial action where possible.

Construction, Forestry, Maritime, Mining and Energy Union v DMS Maritime Pty Ltd T/A DMS

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established