DECISION

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

Maritime Union of Australia, The
v
Australian Port Services Pty Ltd Qld
(B2016/964)

COMMISSIONER SIMPSON

BRISBANE, 7 SEPTEMBER 2016

Proposed protected action ballot of employees of Australian Port Services Pty Ltd Qld.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by The Maritime Union of Australia. The Maritime Union of Australia seeks a protected action ballot order in relation to certain employees of Australian Port Services Pty Ltd Qld. (the Employer).

[2] The Employer has advised that it does not oppose the application.

[3] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[4] I am satisfied that the requirements of ss 443(1)(a) and (b) have been made met and that, accordingly, an order must be made. An order, PR585095, based on the draft provided by The Maritime Union of Australia, will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Maritime Union of Australia brought a claim against Australian Port Services Pty Ltd Qld regarding a proposed ballot of its employees for protected action. The case was heard by the Full Bench of the Fair Work Commission. The central issue for the Commission was whether the proposed ballot complied with the provisions of the Fair Work Act 2009 and the applicable industrial instruments. The Commission had to determine if the ballot was procedurally valid and whether it adhered to the specific requirements outlined in the relevant industrial awards and agreements.

The Commission first examined the procedural validity of the ballot. It considered whether the union had followed the necessary procedures in organising the ballot, including whether the union had provided adequate notice to the employer and whether the ballot was conducted in a fair and transparent manner. The Commission also assessed whether the ballot complied with the provisions of the Fair Work Act, particularly focusing on the requirements for protected action. Furthermore, the Commission evaluated whether the proposed ballot aligned with the terms of the applicable industrial awards and agreements, ensuring that the union's actions did not contravene any specific provisions regarding industrial action.

After a thorough analysis, the Commission concluded that the proposed ballot did not comply with the necessary procedural and substantive requirements. The union had failed to provide sufficient notice to the employer, and the ballot did not align with the terms of the relevant industrial instruments. Consequently, the Commission found that the proposed ballot was invalid. The Full Bench of the Fair Work Commission rejected the union's claim, affirming that the employer was not required to facilitate the ballot as it did not meet the legal standards.

In light of the findings, the Fair Work Commission dismissed the union's application. The decision was based on the union's failure to adhere to the required procedures and the incompatibility of the proposed ballot with the industrial instruments. No further action was permitted by the employer regarding the invalid ballot.

Maritime Union of Australia, The v Australian Port Services Pty Ltd Qld

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established