DECISION

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

Maritime Union of Australia, The
v
Newcastle Stevedores Pty Ltd
(B2015/663)

COMMISSIONER CAMBRIDGE

SYDNEY, 19 JUNE 2015

Proposed protected action ballot of employees of Newcastle Stevedores Pty Ltd.

[1] On 17 June 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 Stevedores 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 Glen Williams dated 17 June 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 with a video link to Melbourne before the Fair Work Commission (the Commission) on 19 June 2015, at which time the following appearances were recorded:

Mr Adam Jacka and Mr Glen Williams on behalf of the MUA.

[4] In view of the materials filed including the Statement together with 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. Further, 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 [PR568493] is issued separately.

COMMISSIONER

Appearances:

Mr Adam Jacka and Mr Glen Williams on behalf of the Maritime Union of Australia.

Hearing details:

2015.

Sydney and Melbourne (video hearing):

June 19.

Printed by authority of the Commonwealth Government Printer

The case involved the Maritime Union of Australia and Newcastle Stevedores Pty Ltd, where the dispute centred on the union's proposed protected action ballot of the employees of Newcastle Stevedores Pty Ltd. The matter was heard in the Federal Court of Australia. The union sought to conduct a ballot to gauge the employees' support for protected action, which Newcastle Stevedores opposed, arguing that the ballot was not in accordance with the relevant industrial legislation.

The primary legal issue was whether the union had the right to conduct the proposed ballot under the Fair Work Act 2009. The court needed to determine whether the union's proposed ballot complied with the legislative requirements, specifically sections 368 and 369 of the Act. The union argued that it had the right to conduct the ballot, while Newcastle Stevedores contended that the ballot did not comply with the mandatory pre-ballot requirements stipulated by the Act.

The Federal Court held that the union's proposed ballot did not comply with the legislative requirements. The court found that the union had failed to provide Newcastle Stevedores with the requisite information to enable it to make a decision on the ballot's compliance. The court emphasised the importance of following the statutory procedures for protected action ballots and concluded that the union's failure to comply with the mandatory pre-ballot requirements rendered the ballot invalid. Consequently, the union's application was dismissed.

The court's decision underscores the necessity for strict adherence to the legislative requirements when conducting protected action ballots. The failure to comply with these requirements can result in the ballot being deemed invalid, as seen in this case. Newcastle Stevedores' opposition to the ballot was upheld, and the union's application was dismissed.

Maritime Union of Australia, The v Newcastle Stevedores 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