The Construction, Forestry and Maritime Employees Union, the Australian Institute of Marine and Power Engineers, and the Australian Maritime Officers' Union v DMS Maritime Pty Ltd Trading as Serco Defence Summary

[2024] FWC 1421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Construction, Forestry and Maritime Employees Union, the Australian Institute of Marine and Power Engineers, and the Australian Maritime Officers' Union
v

DMS Maritime Pty Ltd Trading as Serco Defence

(B2024/713)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 MAY 2024

Proposed protected action ballot of employees of DMS Maritime Pty Ltd

This is an application by Construction, Forestry and Maritime Employees Union (CFMEU), the Australian Institute of Marine and Power Engineers (AIMPE), and the Australian Maritime Officers’ Union (AMOU), (collectively the Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of DMS Maritime Pty Ltd trading as Serco Defence (Serco or Employer).

On 30 May 2024, the Commission was advised that the Employer did not object to 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 declarations of Jeff Cassar, Union Official (CFMEU), Sam Littlewood, National Organiser (AIMPE) and Martin McEvilly, Industrial Officer (AMOU) setting out the steps taken by the Applicants in bargaining with the Employer and that they have been, and are, genuinely trying to reach an agreement with it, 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.

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

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 18 June 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR775512.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement 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] This is, in effect, 14 days after the ballot opens, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Construction, Forestry and Maritime Employees Union, the Australian Institute of Marine and Power Engineers, and the Australian Maritime Officers' Union seeking a protected action ballot order for certain employees of DMS Maritime Pty Ltd, trading as Serco Defence. The unions sought to conduct a ballot for protected industrial action, and the employer did not object to the application. The matter was determined on the papers without a hearing, as the employer did not raise any objections. The unions provided declarations affirming their efforts to reach an agreement with the employer.

The legal issues before the Commission were whether the unions had genuinely attempted to reach an agreement with the employer and whether all requirements under the Fair Work Act 2009 for a ballot were met. The Deputy President found that the unions had indeed been genuinely trying to reach an agreement and that all statutory requirements were fulfilled. The unions had taken appropriate steps to negotiate and had demonstrated their efforts through the declarations of their representatives.

Based on the evidence, the Deputy President concluded that the conditions for a protected action ballot were satisfied. The ballot agent, Democratic Outcomes Pty Ltd, was approved and authorised to conduct the ballot. The Commission determined the closing date for voting to be 18 June 2024, which aligns with the statutory requirement of a 14-day ballot period. Consequently, an order was issued for the ballot to proceed as requested by the unions. Additionally, the matter was assigned for a compulsory conciliation conference to be conducted by another member of the Commission, with further orders to ensure meaningful negotiations.

The Construction, Forestry and Maritime Employees Union, the Australian Institute of Marine and Power Engineers, and the Australian Maritime Officers' Union v DMS Maritime Pty Ltd Trading as Serco Defence

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established