Australian Institute of Marine and Power Engineers
[2016] FWC 3495
•31 MAY 2016
| [2016] FWC 3495 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Institute of Marine and Power Engineers
(B2016/561)
COMMISSIONER CLOGHAN | PERTH, 31 MAY 2016 |
Proposed protected action ballot of employees of MMA Offshore Vessel Operations Pty Ltd.
[1] This is an application by the Australian Institute of Marine and Power Engineers (AIMPE) for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (FW Act).
[2] The employees to be balloted are employed by MMA Offshore Vessel Operations Pty Ltd trading as Mermaid Marine Vessel Operations (MMVO) and who are members of AIMPE and to whom the Mermaid Marine Vessel Operations Pty Ltd Australian Institute of Marine and Power Engineers Enterprise Agreement 2010 (MMVO/AIMPE Agreement) applies.
[3] At the hearing into the application, AIMPE was represented by Mr Fogliani of counsel and evidence given on behalf of AIMPE by Mr Andrew Williamson, Senior National Organiser.
[4] MMVO was represented by Mr D Parker of counsel and evidence was given on behalf of MMVO by Mr B Jewson, Fleet Operations Manager.
[5] This is my decision and reasons for decision dismissing the application.
RELEVANT LEGISLATIVE FRAMEWORK
[6] There is no dispute that the provisions of sections 437, 438 and 440 of the FW Act have been met.
[7] The relevant legislative provisions to be satisfied in s.443 of the FW Act, are as follows:
“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.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) …
(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.” (my emphasis)
RELEVANT BACKGROUND
[8] The MMVO/AIMPE Agreement’s nominal expiry date is 31 July 2013.
[9] AIMPE is the bargaining representative for marine engineers employed by MMVO in bargaining for a replacement enterprise agreement to the MMVO/AIMPE Agreement.
[10] The Australian Mines and Metals Association (AMMA) is the bargaining representative for MMVO in bargaining for the replacement enterprise agreement.
[11] Bargaining for a replacement enterprise agreement appears to have occurred in five (5) stages.
Stage 1: March 2013 to March 2014
[12] There is no dispute that the parties attended and participated in a number of bargaining meetings.
[13] On 19 March 2014, AIMPE applied for a PABO (B2014/606).
[14] The Commission dismissed AIMPE’s application for PABO. The nature and characteristics of the first stage of bargaining is contained in the Commission’s Decision at [2014] FWC 3786.
Stage 2: September 2014 to December 2014
[15] On 22 September 2014, AIMPE provided AMMA with a revised log of claims. The parties met on 20 October 2014.
[16] On 5 December 2014, AIMPE made application to the Commission for the Commission to deal with a bargaining dispute (B2014/1667).
[17] The Commissioner convened a conference on 19 December 2014. There was no resolution to the dispute.
Stage 3: December 2014 to October 2015
[18] No bargaining between the parties took place during the period December 2014 and 11 October 2015.
[19] However, on 22 September 2015, Ms Mansini of AMMA communicated with Mr Williamson. The relevant parts of the communication are as follows:
“After more than two and a half years of bargaining, MMA believes that it is now time for MMA employees to have their say on matters which concern their terms and conditions of employment.
MMA intends to request employees to vote on a replacement agreement towards the end of October 2015.
Ideally we would settle the terms of a replacement agreement with you before the vote. In an effort to achieve this objective, we are instructed to meet with you as often as is necessary between now and the commencement of the voting access period to discuss proposed terms of a replacement agreement.
We are available to meet for those discussions as soon as possible…” 1
Stage 4: October 2015 to February 2016
[20] Four (4) bargaining meetings took place between 12 and 26 October 2015.
[21] No agreement was reached between the parties on a replacement enterprise agreement.
[22] In November 2015, MMVO sought agreement from its employees on a single replacement enterprise agreement to apply to marine engineers, officers and integrated ratings. A majority of employees did not approve the proposed replacement enterprise agreement.
[23] On 30 January 2016, MMVO again balloted the same employees on a proposed replacement enterprise agreement. MMVO failed to secure a majority of employees to support the proposed enterprise agreement.
[24] Since that time, Mr Williamson gave evidence that AIMPE has unsuccessfully sought details of the outcome of the ballots.
Stage 5:
[25] This application for a PABO was made on 20 May 2016.
[26] On 23 May 2016 at 12:38 pm, my Associate advised the parties of a hearing into AIMPE’s application on 26 May 2016.
[27] At 7:50 pm on the same day (23 May 2016), Mr Williamson emailed Ms Mansini of AMMA and Mr Gillett of MMVO “to meet soonest” with respect to a bargaining meeting for a replacement enterprise agreement.
[28] Not surprising, when Ms Mansini responded on 25 May 2016, she states, “In nearly 6 months since your last email, you have not previously sought any meetings with AMMA in relation to bargaining with MMVO for a replacement agreement nor has there been any correspondence from AIMPE to AMMA in relation to bargaining…for a replacement agreement…” 2
[29] Having considered the various stages of bargaining, the pivotal question, putting aside the other objections of MMVO to the PABO application, is whether AIMPE “has been, and is, genuinely trying to reach an agreement with the employer”. I now turn to this issue.
CONSIDERATION
[30] As at 11 September 2014, the Commission was not satisfied that AIMPE had been genuinely trying to reach agreement with MMVO (Stage 1). What has happened since that time?
[31] On 22 September 2014, AIMPE provided AMMA with a revised log of claims. Subsequently, there was one meeting on 20 October 2014. No Agreement was reached on a replacement enterprise agreement. AIMPE filed an application in the Commission to deal with a bargaining dispute on 5 December 2014. A conference was conducted on 19 December 2014. These proceedings did not lead to a replacement enterprise agreement.
[32] Notwithstanding the fact that there was only one bargaining meeting and one conference proceeding in the Commission, I am satisfied that in the period identified as Stage 2, AIMPE had been genuinely trying to reach agreement on a replacement enterprise agreement.
[33] Between 19 December 2014 and October 2015, I have no evidence of bargaining between the parties for a replacement agreement.
[34] Mr Williamson stated that he had a “very clear recollection that there was no bargaining in those months [up to October 2015]”, between AMMA and AIMPE. 3 Mr Williamson described it as a “hiatus”.
[35] However, when it was put to Mr Williamson that AIMPE did nothing “during that period to try to reach agreement” 4, he refused to make such a concession.
[36] While Mr Williamson may not wish to make any concession with respect to the facts, in the absence of any evidence to the contrary, I find that AIMPE, during Stage 3, had not been trying to reach agreement with MMVO, genuinely or otherwise.
[37] There is no dispute that in October 2014, four (4) bargaining meetings took place. However, it is important to observe that it was AMMA who instigated bargaining, not AIMPE. 5
[38] The evidence of Mr Williamson, in relation to these bargaining meetings, is that AIMPE had moved from its proposal of 22 September 2014. Secondly, that although Mr Williamson’s initial evidence was that AIMPE was seeking a “roll over” of the current agreement with a “salary pause” of two (2) years 6, this evidence was later clarified to also include a percentage of payroll into a training fund.7 Mr Williamson acknowledged that this is no longer part of AIMPE’s overall proposal for a replacement agreement.8 However, AIMPE’s position has not been relayed to AMMA – Mr Williamson acknowledged that this was a significant omission on behalf of AIMPE.
[39] I am satisfied that, in relation to the October 2014 bargaining meetings, as part of Stage 4, AIMPE had been genuinely trying to reach agreement with MMVO.
[40] There is no dispute that in November 2015 and February 2016, the Employer unsuccessfully sought approval of a replacement enterprise agreement by employees. During this period, it is not unusual for bargaining meetings not to occur where the proposed replacement agreement has not been agreed in-principle, among the bargaining representatives.
[41] During this period of voting concerning the Employer’s second proposed replacement agreement, AIMPE and the Australian Maritime Officers Union (AMOU) circulated to its members a Joint Statement which urged their members to reject the Employer’s proposed enterprise agreement. 9
[42] The content of the AIMPE/AMOU Joint Statement is only relevant to these proceedings in three respects.
[43] Firstly, the Joint Statement, at paragraph 2, states, “since the previous ballot was rejected with an overwhelming NO vote by members…”
[44] Secondly, at paragraph 5, it states:
“The overwhelming response during the last ballots was that members did not want to trade conditions (for insignificant pay increase) and this is where we believe that rolling over the current agreement for a period of 12 to 18 months with new provisions for workforce consultative meeting to discuss the replacement agreements are critical.”
[45] Thirdly, at paragraph 4, the Joint Statement states, “we [presumably both Unions] have had informal discussions on how to progress the process with operators who are not part of this push by the AMMA group and believe there is a solution”.
[46] Why are these important?
[47] When it was put to Mr Williamson that AIMPE had taken no steps in 2016 to make an agreement, he responded by giving evidence that “someone” had denied AIMPE the details of the second ballot result that concluded on 3 February 2016 “and we had to go and do our own intelligence to work out where we were at, and that explains why there was quite a significant period of delay.” 10
[48] Subsequently, Mr Williamson conceded, in evidence, that what was denied by “someone”, was the results of the first ballot which concluded on 12 November 2015. AIMPE did not ask for the results of the second ballot which concluded on 3 February 2016. Even so, the intelligence ascertained by AIMPE regarding the first ballot, was sufficient to enable it to declare on 24 January 2016 that an overwhelming a number of voters had voted “NO”. I find AIMPE’s explanation for the delay not related to the results of the ballot. The simple fact is that AIMPE took no action to try and reach an agreement with the Employer in the approximate six (6) months prior to making this application.
[49] What did happen in those six (6) months? Although it is not entirely clear, from the Joint Statement, it would appear that AIMPE was pursuing “informal discussion” with other employers outside the “AMMA group”. The Commission could speculate on the purpose of these “informal discussions”, however, it is most probably best left as a fact and nothing more. However, I am satisfied that during this period, AIMPE had not been trying to genuinely reach agreement with the Employer.
[50] I now turn to Stage 5.
[51] I want to start with Form F34-Application for a protected action ballot order. The Form F34 asks, at Question 4.1, for the applicant to set out the “relevant facts which support your application”. Further, for the information of the applicant, the form states, “the Commission must be satisfied that you…have been, and are, genuinely trying to reach agreement with the Respondent” (my emphasis).
[52] It would appear from this question, AIMPE is required to set out the facts, as at the time of making the application (in this case, 20 May 2016) to demonstrate that it had been and is genuinely trying to reach agreement with the Respondent employer.
[53] Notwithstanding that AIMPE states that, as at 20 May 2016, it had been and is genuinely trying to seek agreement with MMVO, the Commission has to be satisfied of such a case before it can make an order. To be satisfied, the Commission is required to consider the submissions and evidence. Quite clearly, as at 20 May 2016, AIMPE had no evidence that it “is” genuinely trying to reach agreement as the last bargaining meeting occurred on 26 October 2015.
[54] To overcome this lack of contemporaneous evidence that AIMPE “is” genuinely trying to reach agreement, Mr Williamson requested a bargaining meeting after the date for the hearing into the application was set.
[55] In my view, more has to be shown by AIMPE to demonstrate that at the time of making the application it was, at that time, genuinely trying to reach agreement with MMVO. With respect to the temporal conditions if whether AIMPE “is” genuinely trying to reach agreement with MMVO, a request for a bargaining meeting after the date set for hearing the application, is not convincing. In my view, it shows that AIMPE had reasonable and probable cause to question whether it could demonstrate the case, as asserted in the application, that it “is” genuinely bargaining to reach agreement. Given the proximity of Mr Williamson’s email to the hearing and the need to give evidence that AIMPE “is” genuinely seeking to reach agreement, it would be perverse on the facts, to come to any other conclusion than it was a belated attempt by AIMPE to come within the “four corners” of the legislation. Having considered all the facts, circumstances and the evidence, I am not satisfied that AIMPE “is” genuinely trying to reach agreement with MMVO in Stage 5.
[56] Before concluding, I want to return to the Joint Statement of 24 January 2016.
[57] It is often said that at the “heart” of bargaining is the exchange of proposals and counter proposals. As a generalisation, this is true. Offers to settle are made and returned with agreement or counter proposals.
[58] I consider it reasonable to say the evidence demonstrated that AIMPE’s proposals were not fully articulated and set out for the Employer to consider. While I appreciate circumstances change in bargaining, Mr Williamson gave evidence of proposals of a “roll over” of the current agreement with a new “training” term and without a training term. Alternatively, a “roll over” of the current enterprise agreement was for 12 to 18 months and for two years. Further, various proposals concerning consultation.
[59] In conclusion, the Commission has no evidence of any communication between the parties since 26 October 2015. Further, I have no evidence of any proposal by AIMPE for the Employer to consider since that date.
[60] At various stages of bargaining, the need for written and verbal communication changes. However, communication remains a constant in bargaining and the parties trying to reach agreement. In the circumstances of this application, it is demonstrable for large periods of purported bargaining, there was no communication at all. At its most fundamental, trying to reach agreement requires communication during bargaining and not constructed and created at the time of making a PABO application.
[61] The merits or otherwise of the Employer’s action, in taking a replacement agreement to its employees, is not the issue. The issue is the content of s.443(1)(b) of the FW Act and whether AIMPE has been, and is, genuinely trying to reach agreement. Assertions or assumptions do not obscure the detail which leads to the conclusion, as set out above that, when the totality of the material is considered, I am not satisfied that AIMPE was and is genuinely trying to reach agreement with MMVO pursuant to s.443(1)(b)of the FW Act.
[62] In view of my decision, it is unnecessary to deal with the numerous other matters associated and raised, in the course of the hearing.
[63] The application will be dismissed and an Order to this effect issued jointly with this Decision.
COMMISSIONER
Appearances:
C Fogliani of counsel on behalf of AIMPE.
D Parker of counsel on behalf of MMVO.
Hearing details:
2016:
Perth,
26 May.
1 Exhibit R5
2 Exhibit A2
3 Transcript PN134
4 Transcript PN138
5 Exhibit R5
6 Transcript PN171
7 Transcript PN180
8 Transcript PN188
9 Exhibit R3
10 Transcript PN195
Printed by authority of the Commonwealth Government Printer
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