The Australian Maritime Officers' Union, Construction, Forestry and Maritime Employees Union and the Australian Institute of Marine and Power Engineers v ASP Ship Management Pty Ltd

[2024] FWC 1383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Maritime Officers' Union, Construction, Forestry and Maritime Employees Union and the Australian Institute of Marine and Power Engineers
v

ASP Ship Management Pty Ltd

(B2024/584)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 28 MAY 2024

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

This is an application by The Australian Maritime Officers’ Union (AMOU), the Construction, Forestry and Maritime Employees Union (CFMEU) and The Australian Institute of Marine and Power Engineers (AIMPE) 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 (ASP or Employer).

On 27 May 2024, the Commission was advised that the Employer 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 declarations of Tracey Ellis, Industrial Officer (AMOU), Paul Gallagher, Industrial Officer (CFMEU) and Nathan Niven, Senior National Organiser, (AIMPE) setting out the steps taken by the AMOU, CFMEU and AIMPE, respectively, in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with it, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 11 June 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR775385.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 days from the date the ballot opens, as sought in the application noting there is a public holiday in Victoria that falls on 10 June.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union, Construction, Forestry and Maritime Employees Union, and the Australian Institute of Marine and Power Engineers have applied to the Fair Work Commission for a protected action ballot order against ASP Ship Management Pty Ltd. The unions are seeking to organise a protected action ballot for certain employees of the employer, under section 437 of the Fair Work Act 2009. The employer did not oppose the application, and the Commission decided to determine the matter based on the documentation provided.

The primary legal issue before the Commission was whether the unions had met the statutory requirements to organise a protected action ballot. This involved verifying that the unions had genuinely attempted to reach an agreement with the employer, that the proposed agreement had a notification period, and that all conditions under section 443 of the Act were fulfilled. The unions provided declarations from their industrial officers, confirming their genuine efforts in bargaining and the steps taken to meet the statutory requirements.

The Deputy President of the Fair Work Commission found that the unions had indeed satisfied all the statutory requirements for a protected action ballot. The declarations provided by the unions' industrial officers demonstrated their genuine efforts in reaching an agreement with the employer. The Commission also noted that Democratic Outcomes Pty Ltd, the approved ballot agent, would conduct the ballot. The Deputy President set the closing date for voting at 11 June 2024, ensuring compliance with the statutory notification period. The matter will proceed to a compulsory conciliation conference, overseen by another member of the Commission, to facilitate further negotiations.

The Commission issued an order granting the unions' application for a protected action ballot, specifying the closing date for voting. This decision paves the way for the ballot to proceed, subject to the outcome of the compulsory conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established