Maritime Union of Australia v Skilled Group Ltd T/A Ativo Maintenance and Project Services

[2011] FWA 7075

[2011] FWA 7075

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Maritime Union of Australia
v
Skilled Group Ltd T/A ATIVO Maintenance and Project Services
(B2011/259)

COMMISSIONER CLOGHAN PERTH, 1 NOVEMBER 2011

Proposed protected action ballot by employees of Skilled Group Ltd T/A ATIVO Maintenance and Project Services.

[1] On 10 October 2011, 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 Skilled Group Ltd trading as ATIVO Maintenance and Project Services (“the Employer”) at Fremantle Port.

[3] Pursuant to s.586(a) of the FW Act, the Applicant made application to amend its application and for the Respondent Employer “ATIVO Maintenance and Project Services” to be deleted and replaced with “Skilled Group Ltd T/A ATIVO Maintenance and Project Services”. I considered the amendment appropriate and the application was amended accordingly.

[4] The employees to be balloted have their conditions of employment regulated, in part, by the:

• Port Trans Engineering Collective Agreement 2009 (“the Agreement”).

[5] The nominal expiry date of the Agreement is 10 May 2011.

[6] The application was heard and determined on 11 October 2011. 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. These are the written reasons for issuing the Order.

[7] Pursuant to s.441(1) of the FW Act, FWA must, as far as practicable, determine the application within two (2) working days after the application is made.

[8] At the hearing, the MUA was represented by Mr Edmonds of counsel and evidence given by Mr Tracey, Assistant Secretary, MUA Western Australian Branch. There was no appearance of the Employer.

[9] In view of the Employer’s non-attendance, the nominated Employer’s representative was contacted unsuccessfully on their landline and mobile telephone numbers. Finally, contact was made with the Employer’s nominated representative’s personal assistant who committed to contact the named representative.

[10] The Employer’s representative subsequently advised:

“The Respondent does not contest the application on the basis insufficient time has been afforded to the respondent to properly consider its position in the matter, as first notice was received only yesterday. The Respondent sought the assistance of AMMA to appear however given the short notice no industrial officers were available to appear on behalf of the Respondent.”

[11] Mr Tracey gave evidence of approximately eight (8) bargaining meetings with the Employer. Mr Tracey provided a copy of the MUA log of claims which had been discussed with the Employer 1. Mr Tracey also provided a document entitled “MUA-ATIVO Fremantle Log of Claims Response, CA2011” which set out the Employer’s response to the log of claims as at 9 June and 23 June 20112.

[12] Mr Tracey provided evidence that he felt that the parties were “probably not too far apart”, the last meeting was on 14 September 2011 and the next meeting would occur following feedback from “Patricks” to the Employer. Mr Tracey gave evidence that the MUA has been and is genuinely trying to reach agreement with the Employer.

CONCLUSION

[13] At the conclusion of the hearing, I was satisfied that the requirements in sections 437, 438 and 440 of the FW Act had been met.

[14] Having considered the submissions of the MUA, the evidence of Mr Tracey and the Employer’s position regarding the application, I determined that the Applicant was and is genuinely trying to reach agreement with the Employer; on this basis, I issued Order PR515587.

COMMISSIONER

Appearances:

L Edmonds, for the Applicant.

No appearance by the Respondent.

Hearing details:

2011:
Perth,
11 October.

 1   Exhibit A1

 2   Exhibit A2

Printed by authority of the Commonwealth Government Printer

<Price code A, PR515748>