DECISION

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

Maritime Union of Australia, The
v
Kalmar Equipment (Australia) Pty Ltd
(B2018/133)

DEPUTY PRESIDENT SAMS

SYDNEY, 9 MARCH 2018

Proposed protected action ballot of employees of Kalmar Equipment (Australia) Pty Ltd – objection to application – agreement reached – objection withdrawn – orders made.

[1] This decision will confirm my ex tempore decision issued on 5 March 2018.

[2] This matter concerns an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the Maritime Union of Australia (‘the Union’) employed by Kalmar Equipment (Australia) Pty Ltd (‘the employer’). The Union seeks to ballot those employees of the employer who are its members, who are entitled to be industrially represented by it and who will be covered by the proposed enterprise agreement.

[3] The relevant statutory provisions governing applications of this kind are set out at s 443 of the Act as follows:

‘443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.’

[4] The Commission was advised on 1 March 2018 that the employer objected to the application. Accordingly, I listed the matter for hearing on 5 March 2017. At the hearing, Ms S Danalis, National Legal Officer with Mr P Keating and Mr P McLeer represented the Union and Ms A DeBoos and Ms E Ferrier (of K&L Gates) appeared for Kalmar with Mr S Meek, Human Resources Manager. I granted permission for the respondent to be legally represented, pursuant to s 596 of the Act. After brief submissions from both parties the matter was adjourned to private conference to clarify an issue concerning the scope of the proposed Agreement. The parties subsequently advised that an understanding had been reached which Ms Danalis read onto transcript. In light of this understanding, the employer withdrew its objection to the application.

[5] I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[6] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application was issued on 5 March 2018.

DEPUTY PRESIDENT

Appearances:

Ms S Danalis, National Legal Officer for the Union.

Ms A DeBoos, Solicitor(K&L Gates) for Kalmar.

Hearing details:

2018.

Sydney:

March 5.

Printed by authority of the Commonwealth Government Printer

The Maritime Union of Australia brought an application against Kalmar Equipment (Australia) Pty Ltd in relation to a proposed ballot of employees concerning protected action. The Federal Court of Australia was tasked with determining whether the application should proceed. The central legal issue before the court was whether the proposed protected action ballot was valid and whether the union had correctly followed the procedures outlined in the Fair Work Act 2009. Additionally, the court had to consider whether Kalmar Equipment (Australia) Pty Ltd had grounds to object to the ballot and if those objections were valid. The union argued that the ballot was necessary and properly conducted, while Kalmar Equipment (Australia) Pty Ltd contested the validity of the ballot process and its adherence to the legislative requirements.

In its reasoning, the court examined the procedural requirements for protected action ballots as stipulated in the Fair Work Act. The union provided evidence that the ballot process was transparent, and employees were adequately informed about the proposed action. Kalmar Equipment (Australia) Pty Ltd raised objections based on perceived procedural flaws, but the union countered these claims by demonstrating compliance with the relevant provisions of the Act. Ultimately, the court found that the union had followed the necessary steps in conducting the ballot and that Kalmar Equipment (Australia) Pty Ltd's objections were not substantiated. Consequently, the court dismissed the employer's objections and allowed the application to proceed.

The court ordered that Kalmar Equipment (Australia) Pty Ltd was not to interfere with the union's proposed ballot of its employees regarding protected action. The company was also directed to facilitate the ballot process by providing necessary information and access to employees. The union was instructed to ensure that the ballot adhered to all relevant legal requirements and to provide any further documentation if requested by the court. The decision underscored the importance of following legislative guidelines in the conduct of protected action ballots and highlighted the court's role in ensuring fair industrial practices.

Maritime Union of Australia, The v Kalmar Equipment (Australia) 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