The Australian Institute of Marine and Power Engineers v ASP Ship Management Pty Ltd

[2022] FWC 2906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Institute of Marine and Power Engineers

ASP Ship Management Pty Ltd

(B2022/1643)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 OCTOBER 2022

Proposed protected action ballot of employees of ASP Ship Management Pty Ltd.

This is an application by the Australian Institute of Marine and Power Engineers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of ASP Ship Management Pty Ltd (Respondent).

On 31 October 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Nathan Niven of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR747491.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers (Applicant) lodged an application under section 437 of the Fair Work Act 2009 (Act) for a protected action ballot order concerning employees of ASP Ship Management Pty Ltd (Respondent). The matter was heard by Deputy President Clancy of the Fair Work Commission in Melbourne on 31 October 2022. The Respondent did not object to the application, and consequently, the Deputy President determined the matter on the papers without a hearing.

The primary legal issue before the Deputy President was whether the Applicant had satisfied the requirements under section 443(1) of the Act, which sets out the criteria for a protected action ballot order. This involved examining whether the Applicant had genuinely attempted to reach an agreement with the Respondent and if there was a notification time in relation to the proposed agreement. The Deputy President reviewed the declaration of Mr Nathan Niven of the Applicant, which outlined the bargaining efforts and steps taken in good faith to reach an agreement with the Respondent.

The Deputy President concluded that the Applicant had fulfilled the statutory requirements for a protected action ballot order. The declaration of Mr Niven demonstrated that the Applicant had genuinely attempted to negotiate with the Respondent. Moreover, the existence of a notification time for the proposed agreement was confirmed. Consequently, the Deputy President was satisfied that the conditions for issuing the order were met.

An order was issued in PR747491, authorising the Applicant to conduct a protected action ballot among the employees of the Respondent, as per the provisions of section 437 of the Act. The Deputy President's decision was based on the material presented, and no further hearing was deemed necessary due to the absence of objections from the Respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established