The Australian Maritime Officers' Union v BITS Ferry Services Pty Ltd

[2023] FWC 232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Maritime Officers' Union
v

BITS Ferry Services Pty Ltd

(B2023/43)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 JANUARY 2023

Proposed protected action ballot of employees of BITS Ferry Services Pty Ltd

This is an application by the Australian Maritime Officers' Union (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 BITS Ferry Services Pty Ltd (Respondent).

On 23 January 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Christopher Claydon of the Applicant declared on 17 January 2023, 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 PR749997.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union has brought a matter before the Fair Work Commission under section 437 of the Fair Work Act 2009. The union seeks a protected action ballot order for certain employees of BITS Ferry Services Pty Ltd. The respondent company did not oppose the application. The case was heard in Sydney on 25 January 2023.

The legal issues before the court pertain to the conditions for a protected action ballot under the Fair Work Act. Specifically, the court must determine whether the union has met the requirements for initiating a protected action ballot, including the notification period and the steps taken in bargaining with the employer. The union must demonstrate that it has genuinely tried to reach an agreement with the employer and that the statutory notification period has been observed.

In reaching its decision, the court considered the statutory declaration of Christopher Claydon of the Australian Maritime Officers' Union, which outlined the steps taken in bargaining with BITS Ferry Services Pty Ltd. The court was satisfied that the union had genuinely tried to reach an agreement with the employer and that the notification period had been observed. Consequently, the court determined that the union had met the requirements for a protected action ballot under section 437 of the Fair Work Act. An order was issued separately in PR749997.

The final orders of the court were that the application for a protected action ballot order by the Australian Maritime Officers' Union was granted. This decision allows the union to proceed with the ballot, enabling the employees to take protected action if the union and the employer cannot reach an agreement. The court's decision was based on the evidence provided by the union, which demonstrated compliance with the statutory requirements for initiating a protected action ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established