Australian Maritime Officers’ Union, The

[2017] FWC 1974

[2017] FWC 1974

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

Australian Maritime Officers’ Union, The
(D2016/64)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 7 APRIL 2017

Application for alteration of the eligibility rules of The Australian Maritime Officers’ Union (001N).

[1] This decision arises from an application made under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) by The Australian Maritime Officers’ Union (AMOU) for consent to the alteration of its eligibility rules (rule change application). The rule change application was lodged on 18 November 2016.

[2] The rule change application is for consent to change Rule 6 Part 3(c) “Eligibility for Membership”. The application seeks an amendment of the rule such that it would read as follows:

“PART 3

(a) Without limiting the generality of Part 1 and Part 2 of this Rule, or being limited thereby, the Union shall also consist of all employees as defined in subrule (b) who are employed in supervisory duties of any nature (other than employees performing the duties of forepersons or leading hands or otherwise who exercise similar and direct supervisory powers over other employees) and employees who possess a Maritime Certificate of Competency where the possession of the certificate is part of the requirement of a classification, and employees who are employed as harbourmasters, port managers, marine pilots, marine surveyors, maintenance technicians, masters and deck officers of vessels, officers of pilot cutters, port control officers, signal station officers, radio officers, superintendents, stevedoring supervisors or who are employed in managerial or professional occupations; provided that employees who perform clerical and administrative, professional/supervisory or technical duties shall not be eligible to be members of the Union by virtue of this subrule until:

(i) 1 December, 1995 if employed by the Fremantle Port Authority or the Port of Brisbane Corporation;

(ii) 1 June, 1996 if employed by the Sydney Ports Corporation, the Newcastle Port Corporation, the Port Kembla Corporation, the Waterways Authority in NSW or the Port of Melbourne Authority;

(iii) 1 January, 1996 if employed by the Townsville Port Authority;

and provided that employees who are employed in professional occupations within the limits of the constitution and rules of The Association of Professional Engineers, Scientists and Managers, Australia shall not be eligible to be members of the Union by virtue of this subrule until:

(i) 1 December, 1995 if employed by the Port of Brisbane Corporation;

(ii) 1 June, 1996 if employed by the Sydney Ports Corporation, the Newcastle Port Corporation, the Port Kembla Port Corporation, the Waterways Authority in NSW, the Port of Geelong Authority, the Port of Portland Authority or the Port of Melbourne Authority.

(b) For the purposes of subrule (a) "employees" means all those persons employed by the employers identified in subrule (c) other than those persons who are employed in the office of public servant in accordance with relevant State Government legislation in the States of South Australia and Western Australia (other than persons employed as port managers, assistant port managers, harbour masters, assistant harbour masters, senior marine pilots or marine pilots by the Department of Transport (South Australia) or who are employed as harbour masters, senior marine pilots, or marine pilots by the Department of Transport (Western Australia).

(c) For the purposes of Part 3 of this rule the employers are:

Albany Port Authority
Bunbury Port Authority
Bundaberg Port Authority
Burnie Port Authority
Dampier Port Authority
Darwin Port Authority
Department of Transport, Marine & Harbours Agency (in the State of South Australia)
Department of Transport (in the State of Western Australia in relation to the Department of Marine and Harbours)
Esperance Port Authority
Fremantle Port Authority
Geraldton Port Authority
Kimberley Port Authority
Marine Board of Circular Head
Marine Board of Flinders
Marine Board of Hobart
Marine Board of King Island
Newcastle Port Corporation
NSW Ports Operation Hold Co Pty Ltd
Port Botany Operations Pty Ltd
Port Hedland Port Authority
Port Kembla Operations Pty Ltd
Port of Brisbane Corporation

Port of Devonport Authority

Port of Geelong Authority

Port Kembla Port Corporation

Port of Launceston Authority

Port of Melbourne Authority

Port of Newcastle Operations Pty Ltd

Port of Portland Authority

Rockhampton Port Authority

Sydney Ports Corporation

Townsville Port Authority

Waterways Authority,

and any successor or assignee of the business (or part of the business or undertaking) concerned with port services as named in Rule 6, Part 3(c).” (emphasis added to show alteration)

[3] The AMOU noted that the purpose of its rule change application is to confirm that it will continue to industrially represent its members employed by a successor or assignee of a business where the AMOU presently has eligibility for the employees of that business.

[4] Notice of the rule change application was published in the Commonwealth of Australia Gazette on 12 December 2016. The period within which objections could be made closed on 16 January 2017.

[5] On or about 16 January 2017, the Australian Municipal, Administrative, Clerical and Services Union (ASU) filed an objection and notified the Commission of its intention to appear. I convened a conference on 9 March 2017 in which the AMOU and the ASU appeared. Parties entered into negotiations and advised my chambers by letter dated 23 March 2017 that:

“We are pleased to advise that the … objecting party, the ASU, has agreed to accept an undertaking from the applicant, the AMOU, and on the basis of that undertaking will withdraw their objection at hearing…”

[6] The rule change application was then listed for hearing before me on 4 April 2017. Mr Nucifora of the ASU emailed my chambers 3 April 2017, as follows:

“I refer to the application for alteration of eligibility rules by the AMOU in D2016/64 listed for hearing tomorrow at 10 am.

The ASU can confirm that a settlement of the ASU Objection has been reached as per the attached signed Undertaking.

The Undertaking is conditional on the ASU formally withdrawing its objection and the ASU now formally withdraws its objection to the application.

I have sighted the written submissions by the Hall Payne Lawyers on behalf of the applicant and concur with these submissions.

As I am unable to appear in the hearing tomorrow I seek for the ASU to be excused and can advise that the video link in Melbourne is now not required.”

[7] At the hearing on 4 April 2017, AMOU was represented by Hall Payne. No other appearances were recorded.

[8] During the hearing, AMOU’s representative spoke to the undertaking made between the AMOU and the ASU as referred to in paragraphs [5] to [7] above. This undertaking was signed:

• on 31 March 2017 by Timothy Higgs, President of AMOU, and



• on 3 April 2017 by David Smith, National Secretary of the ASU

[9] The undertaking is between the parties and is not an undertaking under s.158(5) of the RO Act. I attach as Annexure A to this decision a copy of the undertaking.

[10] Having considered the material filed in support of the application, the undertaking, and the responses provided by the AMOU at the hearing, I am satisfied that the requirements of the RO Act and the Regulations has been satisfied.

[11] I therefore consent to the changes to the eligibility rules sought by the association.

[12] The change to the eligibility rules of The Australian Maritime Officers’ Union will take effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J Payne, solicitor, of Hall Payne, appeared for the Applicant, and with him Mr D Blackmore

Hearing details:

2017

Sydney

April 4

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ANNEXURE A