Maritime Union of Australia, The v SeaRoad Shipping Pty Ltd
[2011] FWA 7934
•16 NOVEMBER 2011
[2011] FWA 7934 |
|
DECISION |
Fair Work Act 2009
s 437 - Application for a protected action ballot order
Maritime Union of Australia, The
v
SeaRoad Shipping Pty Ltd
(B2011/3932)
DEPUTY PRESIDENT SAMS | SYDNEY, 16 NOVEMBER 2011 |
Proposed protected action ballot by employees of SeaRoad Shipping Pty Ltd.
[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot of members of the Maritime Union of Australia (‘the Union’) employed by SeaRoad Shipping Pty Ltd (‘the respondent’). The application was filed on 11 November 2011. The Union seeks to ballot those employees specified in clause 5 of the Draft Order, for whom the Union is a bargaining agent and who would be covered by a proposed enterprise agreement.
[2] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:
443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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) FWA 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 FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA 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.
[3] 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.
[4] On 14 November 2011, the Union requested, pursuant to s586 of the Act, that the following amendments be made to its application (Form F34) and draft order:
● The Respondent employer name ‘SeaRoad Holdings Pty Ltd’ be replaced with ‘SeaRoad Shipping Pty Ltd’; and
● The group/s of employees to be balloted (Cl 3 Form F34; Cl 5 draft order) be amended to add the category of ‘Chief Integrated Ratings’.
On 15 November 2011, Mr L Smith, for the respondent, provided the Tribunal with written confirmation of its consent to the amendments sought by the Union. Accordingly, pursuant to s 586 of the Act, I amend the application and draft orders as proposed.
[5] In addition, the employer confirmed that it does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. Given that I am satisfied that s 443(1)(a) and (b) have been complied with, FWA must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the amended draft order will be published contemporaneously with this decision.
DEPUTY PRESIDENT
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