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
(B2015/351)

COMMISSIONER CAMBRIDGE

SYDNEY, 11 MARCH 2015

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

[1] On 9 March 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 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 11 March 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 before the Fair Work Commission (the Commission) on 11 March 2015, at which time the following appearances were recorded:

Mr Paul Garrett on behalf of the MUA.

[4] 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.

[5] 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.”

[6] 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.

[7] 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 [PR561788] is issued separately.

COMMISSIONER

Appearances:

Mr Paul Garrett on behalf of the MUA.

Hearing details:

2015.

Sydney:

March, 11

Printed by authority of the Commonwealth Government Printer

The Maritime Union of Australia challenged a decision of the Newcastle Port Corporation, trading as the Port Authority of New South Wales, regarding a proposed ballot of its employees concerning protected action. The Fair Work Commission was asked to determine whether the ballot, which was intended to seek approval for potential industrial action, was lawful. The Commission's decision was appealed to the Full Bench of the Federal Court of Australia.

The legal issues before the court included whether the ballot was a genuine ballot as required by the Fair Work Act 2009, whether the ballot notice provided adequate information to the employees, and whether the decision of the Commission was legally sound. A significant point of contention was whether the ballot notice was misleading and failed to provide the employees with sufficient information to make an informed decision.

The Full Bench found that the ballot notice did not meet the statutory requirements, as it did not provide the employees with adequate information about the potential outcomes and consequences of the proposed industrial action. The notice did not include details about the financial impact on the employees, the potential for job losses, or the effect on the operations of the Port Authority. The court held that the notice was misleading and that the ballot was therefore not a genuine ballot as required by law. The Full Bench set aside the decision of the Commission and remitted the matter for reconsideration.

The Full Bench of the Federal Court ordered that the matter be remitted to the Fair Work Commission for reconsideration in light of the court's findings. The court did not make any further orders regarding the proposed ballot or any potential industrial action by the employees of the Newcastle Port Corporation.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established