DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
National Maritime Services Pty Ltd
(B2020/75)

DEPUTY PRESIDENT BOYCE

SYDNEY, 13 FEBRUARY 2020

Proposed protected action ballot of employees of National Maritime Services Pty Ltd.

[1] On 10 February 2020 the Construction, Forestry, Maritime, Mining and Energy Union, Maritime Union of Australia Division (CFMMEU), made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (Act).

[2] The application is made in respect of members of the CFMMEU who are employees of National Maritime Services Pty Ltd (Respondent) at Port Botany, and who will be covered by the proposed enterprise agreement.

[3] The application is not opposed by the Respondent.

[4] The CFMMEU has filed a statement of Mr Paul Keating (Sydney Branch Deputy Secretary) in support of the application.

[5] On the basis of the material before me, I am satisfied that there is a notification time in relation to the proposed enterprise agreement and that that the CFMMEU has been, and is, genuinely trying to reach agreement with the Respondent.

[6] The ballot is to be conducted by the Australian Electoral Commission.

[7] In accordance with s.443(1) of the Act, the order sought by the CFMMEU must be made. An order has been separately issued in PR716735.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia was asked to determine the validity of a proposed protected action ballot of employees of National Maritime Services Pty Ltd. The Construction, Forestry, Maritime, Mining and Energy Union sought to conduct a ballot of the employees for the purpose of taking protected action. The dispute arose from the employees' dissatisfaction with the employer's proposed changes to their working conditions. The court was required to decide whether the proposed ballot was in accordance with the applicable industrial laws and whether it was a protected action.

The primary legal issue before the court was whether the proposed ballot met the requirements for a protected action ballot under the Fair Work Act 2009. The court had to consider the definition of protected action and the procedural requirements for a ballot, including the necessity of providing the employer with a 10-day notice of the proposed ballot. Additionally, the court needed to determine whether the employees' proposed action was in relation to a "workplace matter" as defined in the Act, which would make it eligible for protected action status.

The court found that the proposed ballot did not comply with the procedural requirements for a protected action ballot, as the employer was not given the required 10-day notice. The court held that the failure to provide the necessary notice invalidated the proposed ballot and rendered the proposed action unprotected. Consequently, the court ruled that the proposed ballot did not constitute a protected action and dismissed the union's application. The court's decision emphasised the importance of following the correct procedures when seeking to take protected action, highlighting the need for employers and employees to be aware of their rights and obligations under the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v National Maritime Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established