[2020] FWC 2257
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.437—Protected action

The Australian Maritime Officers’ Union
v
OSM Maritime Group T/A OSM Australia Pty Ltd
(B2020/245)

DEPUTY PRESIDENT BINET

PERTH, 30 APRIL 2020

Proposed protected action ballot of employees of OSM Maritime Group T/A OSM Australia Pty Ltd.

[1] On 27 April 2020, The Australian Maritime Officers Union (AMOU) applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cwth) (FW Act).

[2] The Application seeks an order for a ballot to be conducted of employees of OSM Maritime Group T/A OSM Australia Pty Ltd (OSM)) who would be covered by the proposed agreement who are represented by the AMOU or who are bargaining representatives for themselves but are members of the AMOU (Proposed Agreement).

[3] The Application was the subject of a conference on 30 April 2020 following email advice from OSM that the Application was opposed (Conference).

[4] OSM sought permission to be represented by a lawyer at the Conference. The granting of leave to OSM was not opposed by the AMOU.

[5] Having considered the submissions of the AMOU and OSM, leave was granted to OSM to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[6] In advance of the Conference OSM filed a witness statement by Mr Paul Schneider. The witness statement set out evidence in support of an extended closing date for the ballot period and for an extended notice period for industrial action.

[7] The FWC is obliged to issue a protected ballot order in the following circumstances:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[8] Section 437 relevantly provides as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[9] It is not in dispute that the AMOU has standing to make the Application in its capacity as a bargaining representative. The parties agree that the notification time in relation to the Proposed Agreement is 9 July 2018 and that the Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.

[10] The Application specifies the group of employees who are to be balloted. The AMOU have proposed that the Australian Electoral Commission conduct the ballot. In the course of the Conference the parties agreed that the date by which the ballot should close would be 30 June 2020 to accommodate delays arising from the COVID-19 epidemic. The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[11] The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cwth).

[12] I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.

[13] The FWC may only make the order sought if the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[14] The AMOU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date. In all of the circumstances I am satisfied that the AMOU has been, and is, genuinely trying to reach an agreement with OSM.

[15] During the Conference OSM made submissions in support of an application that the FWC exercise its discretion to increase the subsection 414(2)(a) notice period of three working days. The AMOU did not oppose this application. Based on the submissions of the parties and the evidence of Mr Schneider I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period to seven working days.

[16] Having been satisfied that the requirements of subsections 443(1)(a) and (b) of the FW Act have been complied with, the AMOU application is granted and a protected action ballot order shall be issued.

tle: Seal of the Fair Work Commission with DP Binet's Signature

DEPUTY PRESIDENT

Appearances:
Mr G Walsh
for the AMOU
Mr L Howard
for the OSM Maritime Group Pty Ltd.

Hearing details:
2020.
Perth (by telephone):
30 April.

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