The Australian Maritime Officers' Union v OSM Australia Pty Ltd T/A OSM Australia Pty Ltd

[2023] FWC 3265

[2023] FWC 3265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Maritime Officers’ Union
v

OSM Australia Pty Ltd T/A OSM Australia Pty Ltd

(B2023/1337)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 7 DECEMBER 2023

Proposed protected action ballot of employees of OSM Australia Pty Ltd

1. This is an application by the Australian Maritime Officers’ Union (AMOU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of OSM Australia Pty Ltd T/A OSM Australia Pty Ltd (OSM or Employer). 

1. On 6 December 2023, the Commission was advised that OSM did not, in effect, object to the Application.[1]

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

1. On the basis of the material before me, including the declaration of Mr Jarrod Moran, Senior Industrial Officer, AMOU, setting out the steps taken by the AMOU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with OSM, 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.

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.

1. The sequence of Clauses 6 to 9 in the proposed order were rearranged to reflect the Commission’s normal drafting practice.

1. 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 10 January 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act. In that regard, I observe that OSM have made a separate application for a bargaining order in relation to the same proposed agreement and the parties have expressly requested that the conference associated with this application be dealt with in concert with that application in a conference scheduled by Binet DP in January 2024. Consistent with timing requirements of s.448A of the Act, the ballot period must be set to accommodate that joint request.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5) of the Act, justifying extended periods of written notice for the purposes of s.414(2)(b) of the Act when taking certain industrial action, as set out in the Order made by the Commission.

1. An Order has been separately issued in PR769086.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference referred to earlier, along with the other related matter (B2023/1286). That Member will also issue the Order requiring the attendance of all bargaining representatives 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] OSM did initially raise some amendments for consideration with regard to the definition of the employee group to be balloted, however after discussion with counsel and the Applicant, subsequently withdrew the objection on 6 December 2023.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

Printed by authority of the Commonwealth Government Printer

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