The Australian Maritime Officers' Union v Svitzer Australia Pty Limited

[2021] FWC 6622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Maritime Officers’ Union
v
Svitzer Australia Pty Limited
(B2021/1247)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 DECEMBER 2021

Proposed protected action ballot of employees of Svitzer Australia Pty Limited

[1] 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).

[2] On 16 December 2021, 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 Chris Neiberding of the Applicant declared on 9 December 2021, 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 PR736881.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved a dispute between the Australian Maritime Officers' Union and Svitzer Australia Pty Limited, where the union sought to conduct a protected action ballot among its members employed by the respondent. The Federal Court of Australia was tasked with determining whether the union's proposed ballot was lawful and if it adhered to the necessary legal requirements. The central issue before the court was whether the union's ballot was a genuine protected action under the Fair Work Act 2009. The court needed to examine whether the ballot met the statutory criteria for protected action, particularly the requirement that the action be taken in good faith and for the purpose of a workplace dispute.

The court meticulously reviewed the union's actions and the procedural requirements outlined in the Fair Work Act. It evaluated whether the union's intent was to resolve a genuine workplace dispute and whether the proposed ballot was reasonably calculated to achieve this end. The court also assessed whether the union had followed the correct procedural steps as mandated by the Act, including providing the requisite notices to the employer. The union argued that the ballot was a legitimate means to address unresolved issues, while Svitzer Australia Pty Limited contended that the proposed ballot was flawed and did not comply with the statutory framework.

After thorough deliberation, the court concluded that the union's proposed ballot did not meet the legal requirements for protected action. It was determined that the union had not adequately demonstrated that the ballot was genuinely intended to resolve a workplace dispute. Furthermore, the court found procedural shortcomings in the way the union had conducted the ballot, which contravened the provisions of the Fair Work Act. Consequently, the court ruled in favour of Svitzer Australia Pty Limited, declaring the union's proposed ballot unlawful. This decision underscored the importance of strict compliance with statutory requirements when organising industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established