Australian Institute of Marine and Power Engineers, The; Australian Maritime Officers’ Union, The

[2017] FWC 5601

[2017] FWC 5601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Institute of Marine and Power Engineers, The; Australian Maritime Officers’ Union, The
(B2017/885)

DEPUTY PRESIDENT BOOTH SYDNEY, 27 OCTOBER 2017

Application for a Majority Support Determination

[1] On 25 September 2017 the Australian Institute of Marine and Power Engineers and the Australian Maritime Officers’ Union (AIMPE or AMOU or the unions) applied to the Fair Work Commission (the Commission) pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination (MSD) in respect to Inco Ships Pty Ltd. (Inco). Inco opposes the application.

[2] The unions say that a majority of Engineering Officers and Deck Officers and on the ICS Allegiance and the ICS Reliance (the vessels) wish to bargain for an enterprise agreement with their employer, Inco, and that Inco do not agree to bargain. Inco says that a Notice of Employee Representational Rights (NERR) issued on 21 October 2015 remains in force and they have not “not yet agreed to bargain or initiated bargaining” so an MSD should not be granted.

[3] The vessels are bunker barges operating in Port Botany and Port Jackson in Sydney and in the Port of Melbourne. On 21 October 2015 Inco issued a NERR to employees indicating its intention to commence enterprise bargaining. An enterprise agreement was made and an application for approval was lodged with the Commission in December 2015.

[4] The application was dismissed by the Commission on 6 July 2017 1 because of a failure to comply with s.180(3) of the Act concerning notification of the time, place and method of voting on the proposed agreement prior to the commencement of the access period.

[5] Following this the unions sought to recommence negotiations. Inco did not recommence bargaining.

[6] The unions are asking the Commission to grant their application for an MSD to require Inco to bargain.

[7] Section 236 of the Act provides that a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply for an MSD. It is not disputed that the unions are bargaining representatives for at least half of the employees on the vessels.
[8] Section 236 also provides that the application must specify the employer and employees who will be covered by the agreement. The union application conforms with this requirement.

[9] Section 237 of the Act identifies when the Commission must make an MSD. The conditions relevant to this application are:

• An application has been made.



• The Commission is satisfied that a majority of employees who are employed by the employer at a time determined by the Commission and who will be covered by the agreement want to bargain.



• The employer has not yet agreed to bargain.



• The employees who will be covered by the agreement are fairly chosen



• It is reasonable in the circumstances to make the determination

[10] Section 237 also provides that the Commission may work out whether a majority of employees want to bargain using any method the Commission considers appropriate.

[11] The unions and Inco disagree about the method I should use. The unions want me to rely on a petition signed by employees and Inco want a secret ballot process.

[12] This decision is confined to my conclusion about the method I will use in relation to this application.

[13] On 5 October 2017 I held a telephone conference with the unions and Inco.

[14] Following the telephone conference I issued directions that the unions and Inco provide submissions in relation to the method that the Commission should consider appropriate for working out whether a majority of employees want to bargain. I have considered those submissions and as there are no factual conflicts apparent from them, and the parties agree, I have made my decision about the method on the papers. AIMPE filed additional material subsequent to the directions timetable and I declined to consider that material.

[15] AIMPE officials Nathan Niven and Sam Littlewood visited members on board the vessels. AIMPE says that members asked the officials to seek to continue to pursue an enterprise agreement with Inco. AIMPE says that employees signed a petition to this effect on the vessel and later by returning the petition by email. The AMOU says the petition was also signed by their members.

[16] The unions contend that the Commission ought to be satisfied that the petition signed by the employees reveals that employees want to bargain. The unions ask that the names on the petition be provided on a confidential basis to the Commission and suggest that Inco provide a list of employees on a confidential basis. They suggest that the Commission cross reference the lists and thereby establish whether the petition was signed by a majority of employees.

[17] Inco does not accept that the petition provided by the unions represents the views of employees.

[18] Inco also say that the NERR issued on 21 October 2015 continues to apply and that its employees who nominated as Employee Bargaining Representatives (EBRs) in response to that NERR are still EBRs. It accepts that the unions are default bargaining representatives for half of the employees. It says it has never refused or not agreed to bargain. It says the application must fail because it has agreed to bargain as evidenced by the NERR issued in 2015. Inco says that it has consistently advised the unions that bargaining with the Maritime Union of Australia (MUA) with respect to Integrated Ratings employees will inform its bargaining with respect to Deck Officers and Engineering Officers.

[19] In response to this submission the unions contend that the NERR is extinguished as a consequence of the agreement made arising from it not being approved by the Commission and cite the Full Bench decision in Uniline Australia Limited 2 (Uniline decision).

[20] I agree with this submission. I consider the Uniline decision as clear authority for the proposition that once an application is made to the Commission bargaining for the agreement has concluded. 3

[21] I will not address this submission any further in this decision except to say that it is hard to reconcile this submission with Inco not in fact bargaining and their scepticism about the majority of employees wanting to bargain.

[22] In relation to the competing proposed methods I favour the petition cross referenced against the list of employees. I consider the balance of convenience favours the petition. There was no evidence provided to the Commission to support Inco’s concern about the petition and it appears to me that the conduct of a secret ballot would add unnecessary cost and delay to the process.

[23] I have not yet seen the signed petitions. In principle I am satisfied that the petition is an acceptable method to use to consider whether I am satisfied that a majority of employees wish to bargain. Subject to seeing and being satisfied with the petition I will use the petition signed by employees cross referenced against a list of current employees on the vessels to consider if I am satisfied that a majority of employees wish to bargain.

[24] An order will issue with this decision requiring the AMOU and the AIMPE to provide the petitions to the Commission and Inco to provide a list of names of current employees on the vessels. Both sets of documents will be confidential pursuant to s. 594 of the Act.

[25] I will also issue directions for any further submissions the parties wish to provide in relation to whether the MSD should be granted and list the matter for hearing.

DEPUTY PRESIDENT

 1   Inco Ships Pty Limited [2017] FWC 3482.

 2   [2016] FWCFB 4969.

 3   [2016] FWCFB 4969 at 115.

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