Home | Databases | WorldLII | Search | Feedback Fair Work Commission - Full Bench - Decision Summaries

You are here: 

Maritime Union of Australia, The, Application by [2016] FWCFBSum 1894 (31 March 2016)

		ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – Full Bench – application for a protected action ballot order (PABO) – application heard by Commissioner Williams on 23 December 2015 – Maersk applied for matter to be referred to a Full Bench pursuant to s.615A FW Act – proper construction of ss.437(1) and (2A) and meaning of 'notification time' – Full Bench to determine various legal issues and then remit PABO application to Commissioner Williams for determination – Maersk contends that, properly construed, s.437(2A) read with s.437(1) mean that an application for PABO cannot be made before 'notification time' for proposed enterprise agreement – task of statutory construction must begin with consideration of the text itself [Alcan] – Full Bench not persuaded s.437(2A) requires that there has been a notification time in respect of enterprise agreement proposed by PABO applicant – legislative purpose in enactment of s.437(2A) in  Fair Work Amendment Act 2015  was to ensure protected industrial action cannot be taken until after bargaining has commenced – a consequence of construction proposed by Maersk is that by not agreeing on scope of proposed enterprise agreement, an employer would be able to prevent employees from engaging in protected industrial action unless they have first obtained majority support determination, scope order or low paid authorisation – such a consequence is inimical to scheme of FW Act – Maersk's construction of ss.437(1) and (2A) could produce outcomes which are plainly contrary to scheme of FW Act and purpose of s.437(2A) – an employer could deny its employees right to engage in protected industrial action simply by failing to give a valid NERR, even though employer had agreed to bargain or had initiated bargaining for enterprise agreement with those employees – subsection 437(2A) enacted for limited purpose, to overcome effect of decision in J.J Richards and ensure protected industrial action cannot be taken until after bargaining has commenced – Full Bench rejected Maersk contention that because 'notification time' in s.173(2) triggers requirement for employer to give the NERR in respect of proposed enterprise agreement, Commission cannot make PABO unless employer has given a valid NERR for proposed enterprise agreement – application for PABO remitted to Commissioner Williams for determination.
Maritime Union of Australia, The v Maersk Crewing Australia P/L
B2015/1574				[2016] FWCFB 1894
Ross J Watson VP Gostencnik DP			Sydney	31 March 2016
Citation: Maritime Union of Australia, The v Maersk Crewing Australia P/L [2016] FWCFB 1894 (31 March 2016)