Maritime Union of Australia, The v Broome Port Authority

[2011] FWA 8466

[2011] FWA 8466

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Maritime Union of Australia, The
v
Broome Port Authority
(B2011/298)

COMMISSIONER CLOGHAN PERTH, 7 DECEMBER 2011

Proposed protected action ballot by employees of Broome Port Authority.

[1] On 20 November 2011, the Maritime Union of Australia (MUA) (“the Applicant”) made application to Fair Work Australia (FWA) for a Protected Action ballot order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).

[2] The employees to be balloted are employed by the Broome Port Authority (“the Employer”) and are represented by the MUA in bargaining for a replacement agreement for the Broome Port Authority Agreement 2008 (“the Agreement”).

[3] The nominal expiry date of the Agreement is 31 October 2011.

[4] The application was heard on 23 November 2011. At the conclusion of the hearing, I made a determination that the MUA had satisfied the provisions of the FW Act and an Order should issue (PR517353). These are the written reasons for issuing the Order.

[5] At the hearing, the MUA was represented by Mr L Edmonds of Counsel and evidence was given for the Applicant by Mr W Tracey, Assistant Secretary of the Western Australian Branch of the MUA. The Acting Chief Executive Officer of the Broome Port Authority advised by correspondence to FWA on 22 November 2011 that the Employer did not oppose the making of a Protected Action Ballot Order and requested permission not to appear at the hearing. The Employer was advised that it did not have to appear at the hearing into the application.

APPLICANT’S CASE

[6] Mr Tracey advised of his involvement in bargaining for a replacement agreement with the Employer.

[7] The parties have met on approximately 11 occasions since commencing in 2010. Further meetings are scheduled.

[8] Mr Tracey tendered in evidence a document which is an Enterprise Agreement Negotiation Summary between the parties and sets out the respective positions of the MUA and the Employer at meetings on 9 May, 15 July, 16 August and 12 and 13 October 2011. The headings into items under discussions are “under negotiation”; “new items raised by MUA as at 15 April 2011” and “withdrawn”.

[9] Mr Tracey’s evidence is that the parties are apart on three or four matters.

[10] The Applicant has been and is genuinely trying to reach agreement on a replacement agreement.

EMPLOYER’S CASE

[11] As I have already indicated the Employer did not oppose the making of the Protected Action Ballot Order. However, the Employer highlighted the necessity of ensuring that those employees to be balloted are actually those who will be covered by the replacement agreement.

[12] Mr Edmonds concurred with the amendment sought by the Employer to the draft Order.

CONCLUSION

[13] I was satisfied that the procedural requirements in sections 437, 438 and 440 have been met.

[14] Having considered the relevant provisions of the FW Act, oral evidence, submissions from the MUA and the Employer not opposing the application, I determined that the MUA has been and is genuinely trying to reach agreement with the Broome Port Authority; on this basis I issued Order PR517353 on 23 November 2011.

COMMISSIONER

Appearances:

Mr L Edmonds of Counsel for the MUA

No appearance by the Respondent.

Hearing details:

2011:
Perth,
23 November.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR517557>