The Australian Workers' Union v Atlas Programmed Marine Pty Ltd Summary

[2023] FWC 1131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers' Union
v

Atlas Programmed Marine Pty Ltd

(B2023/436)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 MAY 2023

Proposed protected action ballot of employees of Atlas Programmed Marine Pty Ltd

This is an application by the Australian Workers' 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 Atlas Programmed Marine Pty Ltd (Respondent).

On 11 May 2023, the Fair Work Commission was advised that the parties were able to reach a consent position.

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 Jason John Lipscombe of the Applicant declared on 10 May 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 PR761860.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide whether to allow a ballot of employees of Atlas Programmed Marine Pty Ltd, following an application by the Australian Workers' Union. The union sought a protected action ballot under section 437 of the Fair Work Act 2009, which allows for a vote on certain types of industrial action when bargaining with an employer has reached an impasse. The union argued that it had been genuinely trying to reach agreement with the employer but had been unable to do so, necessitating the ballot to potentially take protected industrial action.

The legal issue before the Commission was whether the union had met the statutory requirements for calling a protected action ballot. This involved determining whether there was a notification time in relation to the proposed agreement and whether the union had genuinely tried to reach an agreement with the employer, as required by section 443(1) of the Act.

In considering the application, the Vice President of the Commission, Catanzariti, examined the material provided, including a statutory declaration from the union's representative that detailed the bargaining process and the union's efforts to reach an agreement. The Vice President was satisfied that the union had indeed met the statutory requirements. The evidence demonstrated that the union had been genuinely attempting to negotiate with the employer and that a notification time in relation to the proposed agreement existed. Based on this, the Vice President decided to determine the matter on the papers without the need for a hearing.

The Fair Work Commission issued an order in PR761860, allowing the protected action ballot to proceed. This decision recognises the union's right to seek a vote from its members under the Act, provided the necessary conditions are met.

The Australian Workers' Union v Atlas Programmed Marine Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established