Australian Institute of Marine and Power Engineers, The v Svitzer Australia Pty Ltd

[2015] FWC 8334

[2015] FWC 8334

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.238 - Application for a scope order

Australian Institute of Marine and Power Engineers, The
v
Svitzer Australia Pty Ltd;
The Maritime Union of Australia;

and

The Australian Maritime Officers' Union
(B2015/1549)

COMMISSIONER CAMBRIDGE SYDNEY, 3 DECEMBER 2015

Application for a Scope Order - interim relief sought.

[1] This Interim Decision is made in respect to an application for a scope order made pursuant to s. 238 of the Fair Work Act 2009 (the Act). The application was made on 6 November 2015, by the Australian Institute of Marine and Power Engineers (the AIMPE).

[2] The application identified the following respondents: Svitzer Australia Pty Ltd (the employer or Svitzer); the Maritime Union of Australia (the MUA); and the the Australian Maritime Officers' Union (the AMOU).

[3] The matter was listed today, 3 December 2015, for an urgent Hearing before the Fair Work Commission (the Commission), to deal with an application for an interim order made by the AIMPE on 30 November 2015. The urgency has arisen because the AIMPE seeks to have the Commission restrain Svitzer from conducting a ballot of relevant employees who may be requested to vote in respect of a proposed Enterprise Agreement to replace three existing Enterprise Agreements, namely: the SVITZER Australia Pty Limited and AIMPE Towage Enterprise Agreement 2013 (the 2013 AIMPE Agreement); the SVITZER Australia Pty Limited and AMOU Towage Enterprise Agreement 2013 (the 2013 AMOU Agreement); and the SVITZER Australia Pty Limited and MUA Towage Enterprise Agreement 2013 (the 2013 MUA Agreement). These three Enterprise Agreements are collectively referred to as the three 2013 Agreements.

[4] Proceedings in this matter commenced on 17 November 2015, at that time the Commission identified that the matter involved, inter alia, a degree of complexity such that it would be dealt with more efficiently if permission was granted for lawyers or paid agents to represent any of the respective Parties. Consequently, the Commission was satisfied that the relevant provisions of s. 596 of the Act had been met. At that proceeding the Commission granted permission for Mr W G McNally solicitor, to appear on behalf of the AIMPE and Ms C Lenard solicitor to appear on behalf of the employer. The MUA was represented by Ms S Andronikos, and the AMOU was represented by Mr R Coombs. At the Hearing today, Mr M Easton a barrister, appeared for Svitzer and Ms M Papa appeared with Mr Coombs for the AMOU while Mr P Garrett appeared for the MUA.

[5] The Hearing today has involved the Commission accepting evidence on behalf of the AIMPE in the form of a statement of Mr Gregory James Yates dated 30 November 2015. Further, evidence was accepted on behalf of Svitzer in the form of a statement of Mr A Umanski. The Parties provided submissions which were addressed the contest regarding the provision of any Interim Order as sought by the AIMPE.

[6] The evidence concerning the background upon which the application for an interim order was made was not strongly contested nor is it particularly complicated. Essentially, the three 2013 Agreements all have nominal expiry dates of 31 December 2015, and Svitzer has proposed to replace the three 2013 Agreements with a new single Enterprise Agreement (the proposed 2016 Agreement).

[7] On 8 October 2015 Svitzer issued a Notice of Employee Representational Rights (NERR) in respect to the proposed 2016 Agreement. Subsequently, Svitzer has engaged in various joint enterprise bargaining meetings which involved the participation of each of the MUA, the AMOU and the AIMPE (collectively the three Unions). There has also been separate enterprise bargaining meetings which have dealt with, inter alia, particular issues relevant to the AIMPE only.

[8] Since October the enterprise bargaining has progressed with various levels of agreement being reached between Switzer and each of the three Unions respectively. The AIMPE has objected to the coverage of the proposed 2016 Agreement and has sought that Svitzer agree to coverage involving a separate Enterprise Agreement to replicate the 2013 AIMPE Agreement. Svitzer has rejected the coverage proposed by the AIMPE, and it has maintained its intention to negotiate a single Agreement in the form of the proposed 2016 Agreement with coverage as stated in the NERR, and which encompassed each of the 2013 Agreements.

[9] In view of the contest between Svitzer and the AIMPE concerning coverage of any Enterprise Agreement to replace the 2013 AIMPE Agreement, the AIMPE made the current application for a scope order. The initial proceedings in the matter were held on 17 November and included a private conference which led to an agreement between Svitzer and the AIMPE to have further discussions about outstanding issues that relate to the AIMPE.

[10] Further proceedings by way of a Report Back were held on the morning of 30 November. At the Report Back, the Commission was advised that Svitzer and the AIMPE had not been able to reach agreement in respect to the contested coverage issue. The AIMPE advised that it was prepared to continue participating in enterprise bargaining conferences with the employer and it did not seek to immediately further advance the application for a scope order.

[11] However, later on 30 November 2015 (at 4:43pm), the AIMPE made an application seeking an interim order restraining Switzer from conducting a ballot of employees to approve of the proposed 2016 Agreement.

[12] The AIMPE has sought the intervention of the Commission to restrain Svitzer from conducting any ballot of employees to approve of the proposed 2016 Agreement, because if such a ballot was successful, the substantive application for a scope order would become a futility. The futility would arise from the absence of jurisdiction created if and when the proposed 2016 Agreement was made, and thus it was no longer a proposed Enterprise Agreement. Relevantly s. 238 (1) of the Act provides for scope order applications to be made “…for a proposed single-enterprise agreement…”

[13] Consequently, the AIMPE has argued that there is a serious question to be determined and the balance of convenience strongly favours the granting of an interim order restraining any ballot in respect of the proposed 2016 Agreement pending the final determination of the scope order application.

[14] Svitzer has opposed any intervention of the Commission which would restrain a ballot in respect of the proposed 2016 Agreement. Svitzer has asserted that the AIMPE application for a scope order, and its subsequent application for an interim order, has been made as a tactic aimed to delay and disrupt the enterprise bargaining process. Svitzer has provided evidence that any delay to the enterprise bargaining process with have financial impacts for both its business and for the employees who would be covered by the proposed 2016 Agreement.

[15] Svitzer has also submitted that the Commission did not have power to make the interim order sought by the AIMPE. In particular, it was submitted by Mr Easton that the interim order sought by the AIMPE would be contrary to s. 255 (1) (c) of the Act because it would have the effect of requiring employees not to approve of the proposed 2016 Agreement.

[16] The AMOU and the MUA have adopted a neutral position where they neither supported nor opposed the granting of the interim order sought by the AIMPE.

[17] An application for any interlocutory relief by way of an interim order should be primarily determined upon the question of what is referred to as the balance of convenience once it has been established that there is a serious question to be determined. Importantly, an assessment has to be made as to which Party may suffer most harm if the interlocutory relief is or is not granted.

[18] It would appear that in circumstances where a ballot of employees may effectively nullify the scope order application, the balance of convenience would operate strongly to support a restraint of any ballot pending the final determination of the scope order application. Of course, a ballot of employees may not result in a majority vote to approve of the proposed 2016 Agreement and in such circumstances the AIMPE scope order application could continue. It would appear that the interim order sought by the AIMPE reflects a view that the AIMPE is not prepared to take the risk that any vote for the proposed 2016 Agreement might be successful.

[19] Balanced against the possibility of the harm that would be occasioned by the defeat of the scope order application without opportunity for a proper Hearing, there is also the harm created by the delay in the finalisation of any Enterprise Agreement(s) to replace the three 2013 Agreements. There is some uncertainty for all Parties, and possible delay or even loss of improved benefits that may have been negotiated as part of the proposed 2016 Agreement. The loss or delay of potential benefits is a harm that potentially impacts upon both Svitzer and members of all of the three Unions. The potential for harm associated with a delay in finalising the enterprise bargaining process would have been an obvious implication when the AIMPE made the application for a scope order.

[20] In broad terms I have not been persuaded that the Commission does not have power to make an interim order of the nature that has been sought by the AIMPE in the circumstances of this case. The nature of the interlocutory relief which has been sought is temporary and procedural and advanced so as to ensure that the substantive application can be heard and determined. In particular, I believe that if the legislation had intended to prevent an interim order which restrained an employer from requesting that employees approve a proposed Enterprise Agreement, such a provision would have been included as terms immediately following s. 255 (1) b) of the Act.

[21] In the present circumstances, it is also relevant to consider that many of the terms of the three 2013 Agreements are almost identical or provide for fundamentally the same or similar terms and conditions of employment. Upon even a cursory examination of the three 2013 Agreements, there is obvious prospect for the three 2013 Agreements to be consolidated into one document with three schedules, each of which contained classification specific matters.

[22] Further, there is also a sound basis upon which particular issues which may be relevant to only employees covered by the 2013 AIMPE Agreement could be adequately addressed without the need for there to be a separate Agreement. The concept of a single bargaining unit with particular requirements to ensure that classification specific issues are dealt with to the reasonable satisfaction of any sectional interests, would not be an entirely foreign notion to the three Unions. However, it would appear that the AIMPE have determined that the requirements for a separate Agreement predominate to the extent that the question of scope should be determined before the particular terms and conditions of employment are to be accepted or rejected.

[23] Notwithstanding the reservations that may exist about the ultimate efficacy of elevating the question of scope above any evaluated outcomes of the enterprise bargaining process, particularly in terms of any improved employment benefits that might be secured, the balance of convenience would seem to require that the question of scope, once agitated and advanced in a timely manner, should be permitted to be determined by way of full Hearing. Essentially, there would be greater harm created if the litigant, in this case the AIMPE, was deprived of an opportunity to have their case properly heard and determined. On balance, I have concluded that justice would be best served if the AIMPE application for a scope order was dealt with by way of a full but expedited Hearing.

[24] Consequently, I have been persuaded that, good conscience, fairness and justice would be best served by providing for the interim order as broadly sought by the AIMPE.

[25] However, further Directions are also made to ensure that the Hearing of the substantive application is not unduly delayed. Any failure on the part of the AIMPE to comply with these Directions, or to otherwise fail to prosecute its application for a scope order in a diligent and timely manner, will enable any of the other Parties to make application to have the Interim Order revoked.

COMMISSIONER

Appearances:

Mr M Easton of Counsel, with Mr R Gunningham, solicitor appeared for Svitzer Australia Pty Ltd.

Mr W McNally, solicitor appeared for The Australian Institute of Marine and Power Engineers.

Mr P Garrett appeared for The Maritime Union of Australia.

Mr R Coombs appeared for The Australian Maritime Officers’ Union.

Hearing details:

2015.

Sydney:

December, 3.

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<Price code C, PR574625>