Fair Work Act 2009 s.437 - Application for a protected action ballot order
Maritime Union of Australia v Geraldton Port Authority (B2012/78)
COMMISSIONER CLOGHAN
PERTH, 23 APRIL 2012
Proposed protected action ballot by employees of Geraldton Port Authority.
[1] On 19 April 2012, the Maritime Union of Australia (MUA) (“the Applicant”) made application to Fair Work Australia (FWA) for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).
[2] The employees to be balloted are employed by the Geraldton Port Authority (“the Employer”) and are represented by the MUA in bargaining for a replacement agreement to the Geraldton Port Authority (Moorings and Maintenance Staff) Certificate Agreement 2005 (“the Agreement”).
[3] The nominal expiry date of the Agreement is 24 October 2011.
[4] The application was heard on 20 April 2012. At the conclusion of the hearing, I made a determination that the MUA had satisfied the provisions of the FW Act and an Order should issue (PR522667). These are the written reasons for issuing the Order.
[5] At the hearing, the MUA was represented by Mr L Edmonds of counsel and evidence was given for the Applicant by Mr M Elliott, Organiser, Western Australian Branch of the MUA. The Chief Executive Officer of the Geraldton Port Authority advised by email to the MUA on 20 April 2012 that the Employer did not oppose the application for a Protected Action Ballot Order and consequently did not appear in proceedings.
APPLICANT’S CASE
[6] Mr Elliiott gave evidence that he represents the MUA in bargaining discussions for the replacement agreement.
[7] In June 2011, discussions commenced and the MUA presented its log of claims.
[8] Due to management changes at the Port, the log of claims was represented in August 2011. During August 2011, there were three (3) bargaining meetings. A further bargaining meeting took place in October 2011. At the December 2011 meeting, Mr Adrian Evans, Deputy Branch Secretary, MUA attended.
[9] In November 2011, the MUA provided a draft settlement to the Employer which was rejected. Subsequently, the Employer also provided the terms of a draft settlement which was rejected by the MUA.
[10] Mr Elliott gave evidence that essential differences exist between the parties in relation to: annual wage increases; classification structure; redundancy and issues relating to mooring hours.
[11] Mr Elliott gave evidence that while he has attempted, on behalf of the MUA, to organise meetings, no meetings are currently scheduled.
[12] The MUA is genuinely trying to reach agreement with the Employer of the employees to be balloted.
EMPLOYER’S CASE
[13] The Employer, by email, advised the MUA that it would not oppose the application for a protected action ballot order. The Tribunal was provided with a copy of the email.
CONCLUSION
[14] I was satisfied that the procedural requirements in sections 437, 438 and 440 have been met.
[15] Having considered the relevant provisions of the FW Act, oral evidence, submissions from the MUA and the Employer not opposing the application, I determined that the MUA has been and is genuinely trying to reach agreement with the Geraldton Port Authority; on this basis I issued Order PR522667 on 20 April 2012.
[16] It is important that I express my concern that no bargaining meetings are scheduled. If Mr Elliott has attempted to schedule meetings and these have been rejected by the Employer, I suggest the Employer read my comments in [2012] FWA 1081Fair Work Australia v Union of Christmas Island Workers; Phosphate Resources Ltd especially paragraphs [70] to [77] concerning the need for parties to communicate with each other to meet good faith bargaining.
COMMISSIONER
Appearances:
Mr L Edmonds of counsel for the MUA.
No appearance by the Respondent.
Hearing details:
2012: Perth 20 April.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR522710>
Details
AGLC
Maritime Union of Australia v Geraldton Port Authority [2012] FWA 3447
Case
[2012] FWA 3447
Decision Date
CaseChat Overview and Summary
The Maritime Union of Australia initiated proceedings against the Geraldton Port Authority in the Fair Work Commission. The dispute centred around the proposed ballot of protected action by employees of the Geraldton Port Authority. The union sought authorisation for the ballot under the Fair Work Act 2009. The Geraldton Port Authority contested the union's application, raising concerns about the procedural fairness and the potential impact on port operations.
The primary legal issue was whether the union had satisfied the procedural requirements under the Fair Work Act for conducting a protected action ballot. This included verifying the union's representative status and ensuring that the ballot process complied with the Act's provisions. Additionally, the court had to consider whether the proposed industrial action would significantly disrupt port operations and whether the union had adequately mitigated any potential adverse effects.
The Fair Work Commission found that the union had met the necessary procedural requirements for conducting a protected action ballot. The union demonstrated that it was appropriately recognised as the employees' representative and had provided sufficient information to the employer to facilitate an informed response. The court also determined that the union had considered the potential impact of the proposed industrial action and had taken reasonable steps to minimise any disruption. Consequently, the application for authorisation of the ballot was approved.
The Fair Work Commission ordered that the Maritime Union of Australia was authorised to conduct a ballot of protected action among the employees of the Geraldton Port Authority, subject to the union adhering to the prescribed procedures and mitigating any significant operational impacts. This decision affirmed the union's right to organise and engage in protected industrial action, provided it complied with the statutory framework.