DECISION

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

The Australian Institute of Marine and Power Engineers
v
Smit Lamnalco Towage (Australia) Pty Ltd
(B2020/870)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 DECEMBER 2020

Proposed protected action ballot of employees of Smit Lamnalco Towage (Australia) Pty Ltd.

[1] This is an application by the The Australian Institute of Marine and Power Engineers (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Smit Lamnalco Towage (Australia) Pty Ltd (Respondent).

[2] On 30 December 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Gregory Yates of the Applicant declared on 24 December 2020, 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.

[5] An Order has been separately issued in PR725914.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers recently heard an appeal brought by Smit Lamnalco Towage (Australia) Pty Ltd against a decision of the Fair Work Commission. The matter pertained to a proposed protected action ballot of employees of Smit Lamnalco Towage (Australia) Pty Ltd. The dispute centred around the eligibility of certain employees to participate in the ballot, specifically those who were not directly employed by Smit Lamnalco Towage (Australia) Pty Ltd but rather by sub-contractors. The Fair Work Commission had previously ruled that these employees were eligible to vote in the ballot, and Smit Lamnalco Towage (Australia) Pty Ltd appealed this decision to the Australian Industrial Relations Commission.

The primary legal issue before the court was whether the Fair Work Commission correctly interpreted the relevant legislation to include employees of sub-contractors in the eligibility criteria for the ballot. Smit Lamnalco Towage (Australia) Pty Ltd argued that only their directly employed employees should be eligible to participate, while the union contended that the broader interpretation was consistent with the purpose of the legislation to protect all employees engaged in the industry. The court had to consider the statutory framework and the principles of interpretation to determine the correct scope of the eligibility criteria.

In its judgment, the court found that the Fair Work Commission had erred in its interpretation of the relevant provisions. The court held that the legislation explicitly limited the eligibility for the ballot to employees who were directly employed by the employer in question. The court emphasised the importance of adhering to the plain meaning of the statutory language and noted that the legislative intent was to protect only those employees with a direct employment relationship. Consequently, the appeal was upheld, and the decision of the Fair Work Commission was overturned. The employees of sub-contractors were deemed ineligible to participate in the proposed protected action ballot.

The Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established