The Australian Maritime Officers' Union v Svitzer Australia Pty Limited

[2022] FWC 2531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Maritime Officers’ Union
v

Svitzer Australia Pty Limited

(B2022/1381)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 SEPTEMBER 2022

Proposed protected action ballot of employees of Svitzer Australia Pty Limited

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 Svitzer Australia Pty Limited (Respondent).

On 19 September 2022, 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 Jarrod Moran of the Applicant declared on 14 September 2022, 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 PR746066.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union (the Union) filed an application under section 437 of the Fair Work Act 2009 (the Act) before the Fair Work Commission (the Commission) seeking a protected action ballot order in relation to certain employees of Svitzer Australia Pty Limited (the Employer). The Union aimed to hold a ballot to allow its members to vote on taking protected industrial action. The Employer did not oppose the application. The matter was determined by the Commission without the need for a hearing.

The central legal issue before the Commission was whether the Union had satisfied the requirements of the Act to hold a ballot for protected industrial action. This involved establishing that the Union had genuinely tried to reach an agreement with the Employer and that the statutory notification period had elapsed. The Union provided a statutory declaration from Jarrod Moran, a representative of the Union, outlining the bargaining process and asserting the Union's genuine efforts to reach an agreement with the Employer.

The Commission was satisfied, based on the evidence presented, that the Union had genuinely attempted to negotiate with the Employer and that the statutory notification period for the proposed agreement had been met. Consequently, the Commission concluded that the requirements under section 443(1) of the Act had been fulfilled. As a result, the Commission granted the Union's application for a ballot order.

The Commission issued an order permitting the Union to proceed with the ballot to allow its members to vote on taking protected industrial action. This decision enables the Union to hold the ballot and take the necessary steps to facilitate the democratic process among its members regarding potential industrial action against the Employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established