The Australian Institute of Marine and Power Engineers v Inco Ships Pty Ltd

[2023] FWC 682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Institute of Marine and Power Engineers
v

Inco Ships Pty Ltd

(B2023/261)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 MARCH 2023

Proposed protected action ballot of employees of Inco Ships 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 Inco Ships Pty Ltd (Respondent).

On 21 March 2023, 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 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 PR760488.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers sought an order for a protected action ballot from the Fair Work Commission in relation to certain employees of Inco Ships Pty Ltd. The application was made under section 437 of the Fair Work Act 2009 and concerned a dispute over a proposed agreement between the parties. The Commission determined the matter on the papers, as the respondent did not object to the application.

The legal issue before the Commission was whether the Applicant had met the requirements under section 443(1) of the Fair Work Act to hold a ballot for protected action. Specifically, the Commission needed to assess if there was a notification time in relation to the proposed agreement, and if the Applicant had genuinely tried to reach an agreement with the Respondent.

The Deputy President of the Commission was satisfied, based on the material before the Commission, that the Applicant had genuinely tried to reach an agreement with the Respondent and that there was a notification time in relation to the proposed agreement. Therefore, the requirements under section 443(1) of the Fair Work Act were met. Consequently, the Commission decided to grant the Applicant's application and issued an order for a protected action ballot.

The Fair Work Commission granted the Australian Institute of Marine and Power Engineers' application for a protected action ballot order in relation to certain employees of Inco Ships Pty Ltd. This decision was based on the Commission's satisfaction that the Applicant had met the requirements under section 443(1) of the Fair Work Act, including the existence of a notification time in relation to the proposed agreement and the Applicant's genuine attempt to reach an agreement with the Respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established