Construction, Forestry, Maritime, Mining and Energy Union v Tidewater Ship Management (Australia) Pty Ltd

[2022] FWC 2949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Tidewater Ship Management (Australia) Pty Ltd

(B2022/1669)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 NOVEMBER 2022

Proposed protected action ballot of employees of Tidewater Ship Management (Australia) 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 Tidewater Ship Management (Australia) Pty Ltd (Respondent).

On 7 November 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 3 November 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 PR747684.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under section 437 of the Fair Work Act 2009 (Cth) for an order permitting a protected action ballot of certain employees of Tidewater Ship Management (Australia) Pty Ltd (the Respondent). The Respondent did not oppose the application and the matter was determined on the papers without a hearing. The Applicant sought the ballot in relation to a proposed agreement, claiming that it had been genuinely trying to reach agreement with the Respondent but had been unable to do so.

The central legal issue before the Commission was whether the requirements of section 443 of the Act had been met to permit the protected action ballot. In particular, the Commission had to determine whether there was a notification time in relation to the proposed agreement and whether the Applicant had complied with the relevant provisions of the Act. The Commission found that the requirements of section 443(1) of the Act had been met based on the material before it, including the statutory declaration of George Gakis of the Applicant, which set out the steps taken in bargaining with the Respondent and the Applicant's efforts to reach agreement.

In light of its findings, the Commission determined that an order should be made under section 437 of the Act to permit the protected action ballot. The Commission was satisfied that the requirements of section 443(1) of the Act had been met and that the notification time in relation to the proposed agreement had been met. The Commission issued an order in PR747684 permitting the ballot to proceed. The Commission's decision was based on the material before it and its determination that the Applicant had complied with the relevant provisions of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established