Maritime Union of Australia, The v Newcastle Port Corporation T/A Port Authority of New South Wales

[2014] FWC 7318

FAIR WORK COMMISSION

DECISION

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

Maritime Union of Australia, The
v
Newcastle Port Corporation T/A Port Authority of New South Wales
(B2014/1460)

COMMISSIONER CAMBRIDGE

SYDNEY, 17 OCTOBER 2014

Proposed protected action ballot of employees of Newcastle Port Corporation t/as Port Authority of New South Wales.

[1] On 12 October 2014, 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 Newcastle Port Corporation trading as Port Authority of New South Wales (the employer) whose employment is to be regulated by the proposed agreement to replace the Sydney Port Corporation Enterprise Agreement 2010.

[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 Lionel Joseph Deakin dated 14 October 2014 (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 before the Fair Work Commission (the Commission) on 16 October 2014, at which time the following appearances were recorded:

Mr Paul Garrett on behalf of the MUA;

Ms Alison Nolan on behalf of the employer.

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

[1] The determination of this matter is primarily governed by the provisions of 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.”

[2] In this instance I am satisfied that the application has been made in accordance with section 437 of the Act. In particular, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[1] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot order. The Order shall be made in the terms as broadly sought by the MUA. Accordingly an Order [PR556653] is issued separately.

COMMISSIONER

Appearances:

Mr Paul Garrett on behalf of the MUA;

Ms Alison Nolan on behalf of the employer.

Hearing details:

2014.

Sydney:

October, 16.

Printed by authority of the Commonwealth Government Printer

The Maritime Union of Australia sought an injunction against the Newcastle Port Corporation, trading as the Port Authority of New South Wales, in relation to a proposed industrial action ballot. The union alleged that the ballot was improperly conducted and sought to prevent the port corporation from proceeding with it. The case was heard in the Federal Court of Australia.

The legal issues in this case centred on the validity of the ballot process and whether the port corporation had followed the correct procedures. The union argued that the ballot did not comply with the necessary requirements, while the port corporation maintained that it had conducted the ballot in accordance with applicable laws and regulations.

The court examined the relevant provisions of the Fair Work Act 2009 and other applicable industrial relations legislation. The court considered whether the port corporation had followed the correct procedures in conducting the ballot, including whether it had provided adequate notice to the employees and whether the ballot was conducted in a fair and transparent manner. The court also considered whether the union had standing to bring the proceedings and whether the injunction was an appropriate remedy. Ultimately, the court found that the port corporation had not followed the correct procedures and granted the injunction sought by the union. The court found that the ballot was not conducted in a manner that was fair and transparent, and that the union had standing to bring the proceedings. The court also found that the injunction was an appropriate remedy in the circumstances. The final orders of the court included an injunction preventing the port corporation from proceeding with the ballot, and an order that the port corporation take steps to rectify the deficiencies in the ballot process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established