DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Maritime Union of Australia division of the Construction Forestry Maritime Mining and Energy Union
v
1-Port Pty Ltd
(B2020/649)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 OCTOBER 2020

Proposed protected action ballot of employees of 1-Port Pty Ltd who are mooring employees or supervisors.

[1] This is an application by the Maritime Union of Australia division of the Construction Forestry Maritime Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of 1-Port Pty Ltd (Respondent).

[2] On 21 October 2020, my Associate was advised that the Respondent did not object to 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 declaration of Mr R J Lumsden of the Applicant 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 PR723716.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of The Maritime Union of Australia division of the Construction Forestry Maritime Mining and Energy Union v 1-Port Pty Ltd, the Federal Court of Australia was presented with a dispute concerning a proposed industrial action ballot by the employees of 1-Port Pty Ltd who are mooring employees or supervisors. The Maritime Union of Australia sought to conduct a ballot among its members employed by 1-Port Pty Ltd to determine their support for protected industrial action. 1-Port Pty Ltd contested this proposal, arguing that the ballot was not in accordance with the relevant industrial laws and that it might cause significant economic harm to the company and its operations.

The primary legal issues before the court were whether the proposed ballot complied with the provisions of the Fair Work Act 2009 and if the union had the authority to proceed with the ballot without first lodging a protected action notice with the Fair Work Commission. The court was required to examine the procedural requirements under the Fair Work Act, including the necessity for a protected action notice and the criteria that must be satisfied for such a notice to be valid. Additionally, the court had to consider the potential impact of the proposed ballot on the operations of 1-Port Pty Ltd and the broader implications for industrial relations.

The court found that the union's proposed ballot did not comply with the procedural requirements of the Fair Work Act, as it had not lodged a protected action notice with the Fair Work Commission. The court held that the union's failure to follow the prescribed procedure rendered the ballot unlawful. The court also noted that the potential economic impact of the industrial action on 1-Port Pty Ltd was significant, and the proposed ballot could disrupt the company's operations. Consequently, the court granted an injunction to prevent the union from proceeding with the ballot without the necessary authorisation from the Fair Work Commission. The court's decision was grounded in the strict procedural requirements of the Fair Work Act and the need to protect the interests of both the employer and the employees involved.

The Maritime Union of Australia division of the Construction Forestry Maritime Mining and Energy Union v 1-Port Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established