Maritime Union of Australia, The v Manly Fast Ferry Pty Ltd

[2015] FWC 3377

[2015] FWC 3377

FAIR WORK COMMISSION

DECISION

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

Maritime Union of Australia, The
v
Manly Fast Ferry Pty Ltd
(B2015/535)

COMMISSIONER CAMBRIDGE SYDNEY, 22 MAY 2015

Proposed protected action ballot of employees of Manly Fast Ferry Pty Ltd.

[1] On 14 May 2015, the Maritime Union of Australia (MUA), made an application for a protected action ballot order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the MUA who are employees of Manly Fast Ferry Pty Ltd (the employer) whose employment is to be regulated by the proposed agreement.

[2] The application seeks a ballot of employees of the employer who are members of the MUA and who would be covered by a proposed enterprise agreement. The application was supplemented with a Statement of Colin Drane dated 15 May 2015 (the Statement). In summary, the Statement provided information about events involving attempts made by the MUA to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The application was listed for Hearing in Sydney before the Fair Work Commission (the Commission) on 18 May 2015, at which time the following appearances were recorded:

Mr P Garrett, Mr P McAleer and Mr C Drane on behalf of the MUA;
Mr S McCarthy of Holman Webb Lawyers, along with Mr R Ford for the employer.

[4] In view of the materials filed including the Statement together with the submissions made by the MUA and the employer during the Hearing, the Commission provided an extemporary determination of the application and this Decision is issued as confirmation of that determination.

[5] The determination of the application is primarily governed by section 443 of the Act. Section 443 is in the following terms:

“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;

(c) the date by which voting in the protected action ballot closes;

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

(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.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[6] Evidence in support of the application was provided in the form of a witness statement of Mr Colin Drane, which has become exhibit 2 in the proceedings.  Mr Drane was called as a witness and cross-examined by the representative of the employer, Mr McCarthy.

[7] The application was opposed by the employer.  The employer called Mr Richard Ford as a witness, who provided oral evidence.  Unfortunately, Mr Ford had not provided any form of witness statement.  However, the evidence provided by Mr Ford, and to a lesser extent that provided by way of exhibit 2, has identified the two primary grounds for the employer's opposition to the application.  The employer's opposition to the application was advanced firstly on the basis that the state of negotiations between the Parties had only recently commenced and therefore the application was said to be premature.

[8] Further, the application was opposed on the basis that it was asserted that the MUA was not entitled to represent the industrial interests of certain employees included in the group to be balloted, specifically employees referred to as Masters and Engineers. 

[9] Having considered the evidence and submissions made by the Parties, I am not satisfied that at this point in time the applicant is genuinely trying to reach an agreement with the employer.  The bargaining for a proposed agreement has not been sufficiently advanced and the application is premature.

[10] Issues such as representational rights and the scope of any proposed agreement have not been properly identified and discussed between the Parties and potentially with other Parties because, at this time, the enterprise bargaining process has only just commenced. 

[11] It is relevant and important to note that the application for a protected action ballot order was made on the same day and only shortly after the MUA had served a log of claims on the employer.  Consequently subsection 443(1)(b) of the Act has not been satisfied and the application must therefore be dismissed, and the proceedings are now concluded.

COMMISSIONER

Appearances:

Mr P Garrett, Mr P McAleer and Mr C Drane on behalf of the MUA.

Mr S McCarthy of Holman Webb Lawyers, along with Mr R Ford for Manly Fast Ferry.

Hearing details:

2015.

Sydney:

May, 18.

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