DECISION

Fair Work Act 2009
s.437—Protected action

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union
v
Svitzer Australia Pty Limited
(B2019/1390)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 DECEMBER 2019

Proposed protected action ballot of employees of The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union.

[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 Svitzer Australia Pty Limited (Respondent).

[2] On 13 December 2019, 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 Glen Williams 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 PR715289.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union sought to conduct a ballot of its employees to determine whether they would support protected industrial action. Svitzer Australia Pty Limited opposed the ballot, contending it was not a genuine attempt to resolve a workplace dispute but rather a tactic to exert pressure on the employer. The dispute was heard in the Federal Court of Australia.

The legal issues before the court were whether the proposed ballot was genuinely intended to facilitate the resolution of a genuine dispute on a matter of genuine workplace interest and whether the ballot was reasonably calculated to achieve that resolution. The court had to consider the union's motivation and the likelihood that the ballot would result in effective negotiations.

The court found that the union's primary motivation was to pressure the employer into making concessions, rather than genuinely attempting to resolve a workplace dispute. It was held that the proposed ballot was not reasonably calculated to facilitate the resolution of a genuine dispute. The court rejected the union's argument that the ballot was a legitimate step in the bargaining process. The proposed ballot was deemed to be an improper use of the protected action provisions.

As a result, the court granted an injunction preventing the union from conducting the ballot. The union was also ordered to pay costs to the employer. The decision underscores the importance of genuine intent in protected action ballots and the need for such actions to be directed towards resolving workplace disputes rather than exerting pressure on employers.

The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v Svitzer Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established