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
Australian Port Services Pty Ltd T/A Ausport Marine
(B2020/650)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 OCTOBER 2020

Proposed protected action ballot of employees of Australian Port Services Pty Ltd t/as Ausport Marine 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 Australian Port Services Pty Ltd T/A Ausport Marine (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 PR723718.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Maritime Union of Australia, a division of the Construction Forestry Maritime Mining and Energy Union, brought an action against Australian Port Services Pty Ltd, trading as Ausport Marine, in the Fair Work Commission. The union sought to conduct a protected action ballot among the employees of Ausport Marine who were mooring employees or supervisors. The employer opposed the ballot, arguing it was not necessary for the union to conduct the ballot under the Fair Work Act.

The central legal issue before the Commission was whether the union was required to conduct a ballot among the specified employees before taking protected action. The employer argued that the union was not entitled to conduct the ballot as the employees in question were not members of the union and, therefore, not entitled to be included in the ballot. The union contended that the proposed ballot was necessary to ensure that the employees had the opportunity to vote on the proposed protected action.

In resolving the dispute, the Commission found that the union was entitled to conduct the ballot among the specified employees. The Commission held that the employees in question were eligible to participate in the ballot as they were covered by the union's industrial instrument. The Commission determined that the union was required to conduct the ballot to comply with the statutory requirements of the Fair Work Act. The employer's opposition to the ballot was dismissed.

The Fair Work Commission ordered that the Maritime Union of Australia could proceed with the proposed protected action ballot among the mooring employees and supervisors of Australian Port Services Pty Ltd, trading as Ausport Marine. The employer's opposition to the ballot was dismissed, and the union was permitted to conduct the ballot in accordance with the requirements of the Fair Work Act.

The Maritime Union of Australia division of the Construction Forestry Maritime Mining and Energy Union v Australian Port Services Pty Ltd T/A Ausport Marine

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established