Australian Maritime Officers' Union, The, & Australian Institute of Marine and Power Engineers, The v Maersk Crewing Australia Pty Ltd
[2019] FWC 6817
•7 OCTOBER 2019
| [2019] FWC 6817 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Maritime Officers’ Union, The, & Australian Institute of Marine and Power Engineers, The
v
Maersk Crewing Australia Pty Ltd
(B2019/1147; B2019/1148)
| Deputy President Beaumont | PERTH, 7 OCTOBER 2019 |
Proposed protected action ballot of employees of Maersk Crewing Australia Pty Ltd – Application dismissed – Interpretation of ‘genuinely trying to reach agreement’.
This decision concerns applications by the Australian Maritime Officers’ Union, (AMOU) and the Australian Institute of Marine and Power Engineers (AIMPE) (collectively the Unions) pursuant to s 437 of the Fair Work Act 2009 (Cth) (the Act) for protected action ballot orders. The applications were made on Tuesday, 1 October 2019, and relate to employees who are members of the respective Unions and are employed, according to the Unions, by Maersk Supply Service (Maersk SS).
From the outset it appeared that the Unions had named the incorrect respondent. Maersk Crewing Australia Pty Ltd (Maersk) asserted it was the employer of the relevant employees. For reasons that follow at paragraphs [17] – [21], I permitted the change of name of the respondent on both applications.
There was no objection to the Commission dealing with the applications together[1] and having been allocated the applications on Wednesday, 2 October 2019 (received by the Commission on Tuesday, 1 October 2019 at 2.34pm (AMOU) and 2.54pm (AIMPE)), I listed them for hearing at 11.00am on Friday, 4 October 2019.
Mr Glenn Walsh, Industrial officer of the AMOU, appeared on behalf of Unions. Permission was granted to Mr Follett, to appear on behalf of Maersk. Mr Andersen, Organiser, for the AMOU and Mr Carroll, National Organiser for the AIMPE, provided evidence on behalf of the Unions. Ms Nottle, Human Resources Manager, gave evidence on behalf of Maersk.
Maersk opposed each application on the basis that each of the AMOU and the AIMPE had not, at least recently, and was not, as at the time of the application, genuinely trying, or tried as the case may be, to reach agreement. Further, regarding the draft order and the ballot questions listed, the inclusion of exemptions from the proposed industrial action, had, according to Maersk, made the nature of the action unclear, such that the applications were invalid. If it were the case that the Commission was to grant the protected ballot action orders, Maersk sought a variation to any such orders to extend the written notice period to seven working days.
At the conclusion of the hearing on 4 October 2019, I advised the parties that I would reserve my decision. Later that day, having considered the materials filed and the evidence given in the matter, as well as the submissions of the parties, I was not satisfied that the Unions had been and were currently genuinely trying to reach agreement with Maersk. I therefore concluded that the requirements for the issuing of an order under s 443 were not satisfied and dismissed the applications accordingly.[2] My reasons follow and I note that given my conclusion regarding ‘genuinely trying to reach agreement’ I have not traversed the other objections Maersk advanced.
Preliminary matters
Incorrectly named employer and compliance with s 437(3)
Section 437 of the Act prescribes who may apply for a protected action ballot order and specifies that certain content must be included in that application.
Section 437(3) states that the application must specify: (a) the group or groups of employees who are to be balloted; and (b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
A group of employees specified in s 437(3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.[3]The Act provides that the meaning of employee can be found in the first Division of each Part of the Act (with of course the exception of Part 1-1). Part 3-3 at s 407 defines an employee as a ‘national system employee’ and relevantly an employer as a ‘national system employer’. The meaning of a ‘national system employee’ is an individual so far as he or she is employed, or usually employed, as described in the definition of ‘national system employer’ in s 14, by a national system employer, except on a vocational placement.
For the purpose of this matter the meaning attributed to ‘national system employer’ that appears relevant is: (a) a constitutional corporation, so far as it employs, or usually employs, an individual.[4]
Regarding the two applications, Maersk had identified that the correct employer had not been named on the applications, and, in turn, this affected the named group of employees.
The AIMPE named the respondent as Maersk Supply Services Australia Pty Ltd.[5] With respect to providing details of the group or groups of employees to be balloted, AIMPE stated on its Form F34:
In accordance with s.437(5) of the Act, the employees to be balloted are those who will be covered by the proposed enterprise agreement and who are employed as Marine Engineering Officers being Chief Engineering Officer, Engineering Officers and Electro Technical Officers by Maersk Supply Services Australia on vessels Maersk Minder, Maersk Master and Maersk Mariner and in addition to the above listed vessels any future Maersk Supply Services A/S Offshore Oil and Gas vessels which may commence operations in Australia and upon which members of the Australian Institute of Marine and Power Engineers are employed.[6]
Regarding the draft order that accompanied AIMPE’s application, the group or groups of employees to be balloted were detailed as:
All employees of Maersk Supply Services Australia Pty Ltd to whom the, Maersk Crewing Australia Pty Ltd Australian Institute of Marine and Power Engineers Enterprise Agreement 2010 applies and who are members of the Australian Institute of Marine & Power Engineers.
The AMOU named the respondent as Maersk Supply Service.[7] Concerning the employees to be balloted, the following description of the group or groups of employees to be balloted was provided:
In accordance with s.437(5) of the Act, the employees to be balloted are those who will be covered by the proposed enterprise agreement and who are employed as Ships Officers: being Masters, Chief Officers and Second Officers by Maersk Supply Services on the vessels Maersk Minder, Maersk Master and Maersk Mariner who are members of the Australian Maritime Officers Union.
In addition to the above listed vessels any future Maersk Supply Services A/S Offshore Oil and Gas vessels which may commence operations in Australia and upon which members of the Australian Maritime Officers Union are employed.[8]
According to the evidence of Ms Melanie Nottle, Maersk employs persons who work on vessels owned and operated by Maersk SS in the Australian offshore oil and gas industry.[9] Ms Nottle stated that Maersk SS is a company registered in Denmark and does not employ persons in Australia.[10] Consequently, the employer of the employees who would be covered by the agreements proposed by each of the AIMPE and the AMOU, and thereby eligible to vote in any protected action ballot, is Maersk.[11]
Section 586 permits the correction or amendment of any application, or other document relating to a matter before the Commission, on any terms that it considers appropriate. I expressed at hearing my reluctance or hesitation in permitting the amendments sought.
The applications that were made referred respectively to two existing enterprise agreements, namely the Maersk Crewing Australia Pty Ltd Australian Institute of Marine Power Engineers Enterprise Agreement 2010 (AIMPE 2010 Agreement)[12] and the Maersk Crewing Australia and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010. I note that the second enterprise agreement should have been correctly named as the Maersk Crewing Australia Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010 (AMOU 2010 Agreement)[13] (collectively the 2010 Agreements). Further, it was evident from the material filed, the negotiations to replace the 2010 Agreements had been on foot for approximately six years.
Applicants for such amendments will need to call evidence sufficient to persuade the Commission that it clearly weighs in favour of the grant of the amendment sought. This is particularly the case where the amendment applied for not only changes the name of the respondent, but also changes the specification of the group or groups of employees who are to be balloted. As the applications stand with Maersk SS as the named respondent, there are no employees to be balloted.
Mr Follett submitted on behalf of Maersk to the effect that Maersk would suffer no prejudice should the change of names be permitted on the applications. Further, I note that correspondence to the Unions from one of the witnesses of Maersk referred to Maersk SS and ‘ I take on board Mr Walsh’s submission regarding the paucity of time to prepare for protected action ballot order applications, and hence the lack of preparedness to address the application made under s 586.
The facts in this matter are finely balanced. While it would have been preferable for the Unions to have been better prepared to address their applications under s 586, on this occasion, the exercise of discretion to allow the amendments sought is warranted.
Forms not in the prescribed form
The two application forms (Form F34) were not in the prescribed form and the accompanying statutory declarations were similarly not in the form, prescribed by the Commission and updated as of 1 August 2019. As permitted by the Fair Work Commission Rules 2013, I dispensed with compliance on this occasion, observing that the forms utilised by the Unions provided all requisite information, and their acceptance would not prejudice Maersk.
Background
There has been a long history of bargaining between the parties, although, according to Maersk, the last 12 months of the process had been quite stagnant. When I say long history, the parties would likely agree that negotiations had been ongoing for approximately six years. For the purpose of determining the applications made, it is not necessary to provide a fulsome account of the six-year negotiation history. However, given that I was not satisfied that the Unions had been and were, genuinely trying to reach agreement, a synopsis of the negotiation history is required.
The employment arrangements of Maersk
Maersk employs persons to work on the Maersk SS’s supply and support vessels in the offshore oil and gas industry. Ms Nottle stated that the employees were able to be described in three broad groups, having regard to their skills, qualifications and classifications:
a)integrated ratings, cooks, caterers, and seafarers, who are eligible to be members of the Construction, Forestry, Maritime, Mining and Energy Union (formerly the Maritime Union of Australia, (the MUA));
b)marine engineers, who are eligible to be members of the AIMPE;
c)masters and deck officers, who are eligible to be members of the AMOU.[14]
Bargaining history
From 2013 until early in 2016, Maersk, along with a number of similar vessel operators and manning agents, was represented by the Australian Mines and Metals Association Inc (AMMA) in relation to bargaining for a new enterprise agreement, the Maersk Crewing Australia Vessel Operations Enterprise Agreement 2015 (the 2015 Agreement).[15]
The 2015 Agreement was proposed by Maersk to cover all the aforementioned groups of employees covered by three existing agreements, namely:
(a)the Maersk Crewing Australia Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Greenfield Agreement 2010;[16]
(b)the AIMPE 2010 Agreement; and
(c)the AMOU 2010 Agreement.[17] (collectively the 2010 Agreements)
On 15 October 2015, Maersk issued a Notice of Employee Representational Rights to all employees eligible to vote on the 2015 Agreement.[18] In or around October - November 2015 an employee vote on the 2015 Agreement was held, but the agreement was not made. Similarly, a second vote in February 2016 was unsuccessful.[19]
In mid-2017, Maersk left the bargaining process in which it had been represented by AMMA and began to bargain directly with AIMPE, the AMOU and the MUA.[20]
The direct negotiations with AIMPE, the AMOU and the MUA, began on the basis of the industry template that had been developed by the industry group and provided through AMMA in the previous negotiations.[21] The Unions disputed that the AMMA template was an ‘industry template’, and Mr Carroll’s evidence was to the effect that the ‘industry template’ was not accepted by the Unions as being representative of the industry standards.
According to the evidence of Ms Nottle, the template looked different to the existing 2010 Agreements as it contained different section numbers, sections had been moved around, drafting had been cleaned up, content had been consolidated and some content was different.[22]
Ms Nottle stated that Maersk scheduled separate meetings with, and negotiated separately with, each of the three unions. The negotiations with the MUA proceeded more quickly and by 17 May 2018, the Commission approved an enterprise agreement covering Maersk’s integrated ratings, cooks, caterers and seafarers.[23]
Negotiations thereafter continued with AIMPE and the AMOU.[24] Ms Nottle’s evidence was that meetings to negotiate the proposed enterprise agreement occurred between Maersk and both AIMPE and the AMOU on the following dates, although further dates are referred to in her evidence:
(a)28 June 2017;
(b)11 July 2017;
(c)28 September 2017;
(d)29 September 2017;
(e)28 October 2017;
(f)24 November 2017;
(g)14 December 2017;
(h)20 December 2017;
23 January 2018;
(j)4 July 2018;
(k)25 October 2018; and
(l)31 October 2018.
According to the evidence of Mr Carroll and Mr Anderson, aside from what they say were numerous calls and emails between the parties, meetings occurred on the following dates:
(a)28 September 2017;
(b)29 September 2017;
(c)23 January 2018;
(d)8 February 2018;
(e)4 July 2018;
(f)25 August 2018;
(g)25 October 2018;
(h)31 November 2018;
17 December 2018;
(j)8 February 2019; and
(k)7 May 2019.[25]
Mr Carroll and Mr Anderson gave evidence that on 11 July 2017, the Unions met with Maersk with the view to bringing a conclusion to the protracted discussions.[26] Bargaining occurred at the meeting, but no outcome was reached.[27]
Ms Nottle gave evidence that during the period of June 2017 and December 2017, negotiations made good progress.[28] Ms Nottle said that by the end of 2017, a template for the agreement was agreed and the terms were close to finalised.[29] However, in the period of January 2018 until October 2018, little progress was made.[30] Ms Nottle stated that she attempted to set up a meeting to negotiate with the Unions, but there were several times where she received no response and was not receiving timely responses to emails sent.[31] According to Ms Nottle she had an initial meeting with the Unions on 23 January 2018, but was not successful in setting up a meeting with the Unions until June 2018.
Ms Nottle stated that after the meeting on 4 July 2018, the single template the parties had been discussing was, at the request of the Unions, split into two separate agreements:
(a)the draft Maersk Crewing Australia Pty Ltd Maritime Offshore Oil and Gas Industry (Engineer Officers) Enterprise Agreement 2019 (the EO Agreement); and
(b)the draft Maersk Crewing Australia Pty Ltd Maritime Offshore Oil and Gas Industry (Deck Officers) Enterprise Agreement 2019 (the DO Agreement).
On 14 August 2017, Maersk issued an ‘EBA Bargaining Update’ to all officers and engineers confirming the meeting held on 4 July 2018 and restating its opposition to certain claims made by the Unions on behalf of those represented.[32]
Ms Nottle stated that on 25 October 2018, Maersk’s senior stakeholders from Denmark and the Unions met for a full day meeting.[33] Ms Nottle referred to the involvement of senior stakeholders from Denmark as a new strategy in the bargaining.[34]
Ms Nottle gave evidence that at the meeting the Unions, at one point, referred back to the industry template agreement that had been used in bargaining in 2013 and suggested some terms based upon it.[35] Ms Nottle stated that Maersk contested that reverting to the industry template at such a late stage would be a dramatic and substantive departure.[36] Ms Nottle’s evidence was that the Union agreed to continue to work on the documents that the parties had been negotiating.[37]
Following the meeting on 25 October 2015, Ms Nottle stated she sent an email to the Unions on 29 October 2018 attaching the EO Agreement, the DO Agreement and a ‘clarification register’ in response to the matters that had been raised on 25 October 2018 meeting.[38] By this point, according to Ms Nottle, the terms of the proposed enterprise agreements were at least 90% agreed between Maersk and the Unions.[39] At hearing there was some dispute about whether 90% of the terms had been agreed upon, although there was some agreement that the balance of matters were substantial or otherwise involved matters such as wages.
A meeting was held on 31 October 2018, at which Ms Nottle stated progress continued to be made and a number of matters were closed out.[40] While there were matters where the parties remained apart, Ms Nottle informed the Unions that Maersk was intending to put the agreement(s) to a vote.[41] Following the meeting, Ms Nottle sent an email to the Unions outlining proposed timing for the access period and vote.[42] Attached to the email were what Ms Nottle referred to as the final proposed EO Agreement and DO Agreement and a document called the ‘clarification register’.[43]
According to Ms Nottle the ‘clarification register’ was a document that was used to document everything that was discussed in bargaining meetings and changes were drafted into the register as they were made. Ms Nottle gave evidence to the effect that the ‘clarification register’, or register, reflected accurately the status of the negotiations.
On 31 October 2018, Ms Nottle sent to Mr Andersen and Mr Carroll an email with the subject line ‘Maersk Enterprise Agreement 2018’. The register and Maersk’s final proposed agreements were attached. Within the email, Ms Nottle wrote:
Overall good collaboration that resulted in agreement and close out on a number of items. A few items which we were not able to agree on or remain respectfully apart on, however from [sic] Company’s side we think we have arrived at a solid document and feel ready to put the proposed agreement to employee vote.[44]
The clarification register commenced with a first page with parts of the agreements for deck officers and engineer officers on the left-hand side, specific clauses in the middle and at the far right was a column titled status which was either marked red or green. Mr Andersen gave evidence that a green box indicated agreement had been reached on a specific clause. Similarly, Ms Nottle’s evidence was that the parties had discussed the clause and finally settled on an agreement regarding it, or the clause was not discussed because the parties were satisfied with what was proposed.
In contrast, Mr Carroll said that the green status in effect reflected the position at that moment in time regarding the clause, and that the green was an indicator. He continued to the effect that he regarded the status boxes as an interpretation of how Maersk thought the negotiations were going. Mr Carroll said to the effect that some of the green points were getting warm. He continued that he didn’t put a lot of store or stock in that document.
Regarding the Unions’ position in bargaining meetings, Mr Andersen said he was guided by the members. He continued to the effect that he gave the members advice and alternatives about the AMOU line and the company line. When asked whether the Unions had communicated with Ms Nottle that the ‘green’ status or box did not reflect the correct position of the Unions on receipt of her correspondence, or at any time, Mr Anderson gave evidence that the Unions had not. His account in this respect accorded with the evidence tendered and the viva voce evidence.
On 13 November 2018, the Unions stated that Maersk put an ‘EBA offer’ out to a ballot of employees, which was rejected by the majority.[45] The Unions observed that such offer was made without their consent.
During the period of December 2018 and August 2019, there were further meetings with the Unions to negotiate the proposed agreements. Meetings were held on 17 December 2018, 8 February 2019, 7 May 2019 and 6 August 2019.
At the meeting on 17 December 2018, the Unions put two options forward in response to Maersk’s request for serious and reasonable proposals for modifying the enterprise agreements.[46] The first option was a four year term, sign on bonus and a total 12% salary increase; or alternatively a two year term, plus a total 7% salary increase.[47] Ms Nottle’s evidence was that she informed the Unions at the meeting that the proposals were not reasonable and reiterated this in an email she sent to the Unions on 14 January 2019.[48]
Through the period of January and February 2019, it is apparent that Ms Nottle sent correspondence to the Unions seeking further meetings.[49] A meeting was held on 8 February 2019 in which Maersk presented an amended offer to the Unions in respect of matters outstanding.[50] On 22 March 2019, the Unions sent an email to Ms Nottle rejecting the proposed agreements and raising other matters.[51] Further correspondence was sent by Ms Nottle during the course of April that thereafter resulted in a meeting on 7 May 2019.
At the meeting on 7 May 2019, the Unions again referred to an agreement for a term of two years and a pay increase of 7%.[52] Ms Nottle’s evidence was that she understood that the unions were continuing to refer to the enterprise agreement document the parties had been negotiating (the DO Agreement and the EO Agreement).[53] The Unions were asked to put their counteroffer in writing.[54]
Mr Carroll and Mr Anderson gave evidence that, on the suggestion of Maersk, the Unions provided Maersk with an Offer of Settlement to bring the discussions to a conclusion.[55] The settlement terms sent to Maersk were:
(a)Maersk Supply Services (Australia) and AMOU members will agree a 2-year EBA;
(b)the rate of salary increase will be at the rate of 7% over two years;
(c)the percentage pay increase will be paid as agreed by members;
(d)the inclusion of a clause pertaining to online training whilst on leave;
(e)Works Council altered to read once every six months instead of twelve;
(f)any other allowance and definition in the EA will be aligned with other similar agreements currently in force with Maersk;
(g)members of AIMPE will accept the following changes to the redundancy provision as prescribed by Maersk Supply Services Australia on receipt of the proposed working in relation to the expanding of definitions to the skills criteria; and
(h)there will be no further changes to any of the provisions of the current EA for the next 2 years.[56]
Having received the Unions’ counteroffer on 10 May 2019, Ms Nottle understood that the Unions were no longer referring to the agreements the parties had been negotiating since at least July 2017, but were reverting to the text of the 2010 Agreements, except for the matters listed in the counteroffer.[57]
Mr Andersen did not disagree that the Offer of Settlement was a significant departure from the agreements negotiated to date, but, he said the best way to answer this was that the Unions were directed by their membership about the proposed agreements and the DO Agreement and EO Agreement were quite different, and the members endorsed this in their no vote.
When asked why it took seven months to write the Offer of Settlement, following the unsuccessful vote in November 2018, Mr Andersen’s evidence was that it depended on the availability of three different people.
Ms Nottle stated that the effect of the Unions’ counteroffer articulated in the Offer of Settlement would be that the 2010 Agreements would in effect be rolled over, with the exception of seven matters listed in the counteroffer.[58] At hearing this position was confirmed by the Unions, who appeared to characterise their approach as a new strategy.
With regard to the Offer of Settlement, Ms Nottle’s observations were:
(a)the term of the agreement and the salary increases had not been agreed and the counteroffer on this point was a reversion to a position put as an option by the unions in the meeting of 17 December 2018 ad which Maersk had rejected as unreasonable;
(b)the third matter was unclear and not specified;
(c)the fourth matter was an ongoing claim;
(d)matters numbered five to seven were already agreed and included in the latest draft of the proposed agreement; and
(e)the eighth matter was a complete reversion back to the text of the 2010 Agreements.[59]
Mr Carroll and Mr Anderson stated that on 11 June 2019, Maersk replied rejecting all claims except considering the enterprise agreement term.[60] In her two emails dated 10 June 2019 to Mr Carroll[61] and Mr Andersen respectively,[62] Ms Nottle wrote:
…
We rerefer [sic] to AIMPE’s proposal for enterprise agreement dated 10 May 2019.
We note with concern that AIMPE provides a proposal based on the 2010 agreement, regardless of the fact we have been using a different document as the base for the negotiations for the past six years, including our discussions with yourself personally over the last two years.
We consider this proposal a major step backwards in the negotiations. Given that the documents have many significant and substantial differences, it proposes that AIMPE goes back on already agreed items and raises a whole set of new claims. Potentially this might set negotiations back several years compare to where we left off after our last meeting, 7 May 2019, with half a dozen unresolved items remaining.
We are concerned that AIMPE’s action in making this fundamental new claim for a different document, at this late stage of bargaining, constitutes capricious and unfair conduct that undermines collective bargaining as set out in the good faith bargaining requirements under s 228 of the Fair Work Act 2009 (Cth).
….
Ms Nottle stated that on 28 May 2019, the AMOU sent an email to her in which it claimed a sign-on bonus, which may increase over time, as a separate claim from the agreement negotiations.[63]
Evidence provided by Ms Nottle showed that during the period of 30 May 2019 to 15 July 2019, Maersk continued the bargaining dialogue via correspondence, albeit responses from the Unions were lacking. Further, Ms Nottle offered to meet.[64]
On 6 August 2019, Ms Nottle stated that she met with the Unions with a view of getting the bargaining back on track. Ms Nottle stated that the Unions refused to discuss the current draft agreements at all (DO Agreement and EO Agreement), and no progress could be made.[65] The meeting was terminated for this reason.[66] When asked whether he disagreed with Ms Nottle’s evidence regarding the meeting on 6 August 2019, Mr Carroll stated to the effect that ‘Ms Nottle’s recollections are hers’. Mr Carroll continued to the effect that the Unions had furnished an Offer of Settlement, which she, meaning Ms Nottle, likely refused to discuss.
Notwithstanding the lack of bargaining at the meeting of 6 August 2019, Mr Carroll and Mr Anderson said that the Unions were ready, willing and available to meet with Maersk.[67]
Maersk’s submissions
Genuinely trying to reach agreement
While Maersk made various submissions, those that remain pertinent pertain to the objections that the Unions had not, and were not currently, genuinely trying to reach an agreement with Maersk. In this respect, Maersk advanced the following two alternative submissions:
a) the unions have not been and are not genuinely trying with respect to or for the proposed enterprise agreements the subject of the applications, because those proposed agreements were first proposed on 10 May 2019 and there have been no negotiations, discussions or bargaining about those agreements; or
b) alternatively, if those proposed agreements sufficiently align with what has been previously proposed by the unions, the drastic moving of the goal posts, combine [sic] with the failure to negotiate since that time and the reduction in bargaining activity since November 2018, show that the unions are not (and have not been) genuinely trying.
Maersk, in response to a question I posed concerning submission (b), directed me to further submissions that sought to clarify the alternative argument. Maersk submitted that even if I was not accepting of its proposition that the Offer of Settlement constituted a new proposed agreement, the drastic movement, in what it referred to as the shifting of ‘goal posts’, when considered among all of the facts and circumstances, suggested that whatever the Unions were trying to do, it was not reach agreement.
Threshold
It is not in dispute that the Unions:
a) are bargaining representatives and are entitled to make these applications;
b) had made proper applications as required by the Act and met the documentary and notice requirements for the applications; and
c) are not prevented from bringing the applications by virtue of s 438 given the nominal expiry of the 2010 Agreements.
It was confirmed that Maersk was provided with a copy of the application within 24 hours of it being made as required by s 440 of the Act.
I am satisfied that the threshold requirements have been met.
Statutory framework
Section 437 of the Act enables a bargaining representative to apply for a protected action ballot order. Subject to the restrictions in ss 437(2A) and 438(1) the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s 443. Section 443 relevantly provides:
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.
Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ within the meaning of s 443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question.[68] It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.[69] There are two temporal components to s 443(1)(b): the applicant must have been genuinely trying to reach agreement and must be genuinely trying to reach agreement.[70]
While there is a relationship between s 443(1)(b) and the need to bargain in good faith under s 228 of the Act, a Full Bench of the Commission in Esso Australia Pty Ltd v AMWU[71] cautioned against conflating the two requirements. It stated that ‘a party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach agreement.’[72] Ultimately, it is the test in s 443(1) that must be applied.
Consideration
Whether the Unions are genuinely trying to reach an agreement with Maersk requires a finding of fact which is to be arrived at by reference to the circumstances of the particular negotiations. It was evident that up until the point where Maersk put the proposed agreements out to vote in November 2018, the Unions appeared to have been participating in the bargaining process and Ms Nottle’s evidence (the clarification register) points to consensus on the majority of the clauses in the DO Agreement and the EO Agreement. While appreciative that terms of an agreement do not have be agreed upon to evince genuinely trying to reach agreement, had I been asked prior to the vote in November 2018 to determine whether the Unions were and had been genuinely trying to reach an agreement, considering the totality of the evidence at that time, the conclusion reached would have been different to that arrived at now.
The task in front of me now, however, is to consider all the circumstances of the particular negotiations. While appreciative of the submissions of Maersk regarding the point of time at which this assessment should take place, my agreement rests firmly with the authorities on the approach to take - all the relevant circumstances must be assessed to establish whether the applicant has met the test or not.[73]
According to the evidence of Ms Nottle, the clarification register was a document that was amended during the bargaining meetings to reflect the changes agreed and made to clauses within the DO Agreement and EO Agreement. Ms Nottle gave evidence that while the Unions would express that they may have preferred the ‘current wording’ in the 2010 Agreements for particular clauses, there was no indication that the Unions were purporting a preference for the roll over of the 2010 Agreements. Based on the evidence before me, I consider Ms Nottle’s account truthful.
With regard to the clarification register, it appeared that Mr Carroll manifested a reticence to accept, acknowledge or agree to the fact that a green box represented agreement to a proposed clause in that same register. If Mr Carroll did not in effect put a lot of weight on the clarification register, it would appear odd that he would attend bargaining meetings only to receive a copy of the register and thereafter not inform Maersk that there had not in fact been agreement to the clauses marked as closed or green in the status boxes. Perhaps Mr Carroll’s conduct in not alerting Ms Nottle that the clarification register didn’t carry much stock to him, and that his view was that ‘green’ simply meant getting warm, in and of itself manifests a lack of genuineness.
Mr Andersen gave evidence that a green box indicated agreement had been reached on a specific clause; evidence that was similarly provided by Ms Nottle. Further, when asked whether the Unions had communicated with Ms Nottle that the ‘green’ status or box did not reflect the correct position of the Unions on receipt of her correspondence, or at any time, Mr Anderson gave evidence that the Unions had not. His account in this respect accorded with the evidence tendered and the viva voce evidence.
It is therefore apparent that Ms Nottle’s evidence truthfully portrays the significance of the clarification register and status of bargaining up until the DO Agreement and EO Agreement were put to the vote in November 2018. Evidently, the two aforementioned proposed agreements were not endorsed by those that voted upon them, and therefore the bargaining continued.
Evidence was given of further bargaining meetings on 17 December 2018, 8 February 2019, 7 May 2019 and 6 August 2019.
While the Unions put two options forward at the meeting on 17 December 2018, there was no evidence before me to suggest that at this time the DO Agreement and EO Agreement, did not continue to form the foundation of the proposed agreements. The first option was a four-year term, sign on bonus and a total 12% salary increase; or alternatively a two-year term, plus a total 7% salary increase.[74]
A meeting was held on 8 February 2019, in which Maersk presented an amended offer to the Unions in respect of matters outstanding.[75] Following that meeting, Ms Nottle sent emails dated 8 February 2019 - inclusive of a revised proposal, 19 February 2019 - seeking a response to the proposal and 20 March 2019 – noting the lack of receipt of correspondence.
On 22 March 2019, the Unions sent an email to Ms Nottle rejecting the proposed agreements and raising other matters.[76] Mr Carroll in his email observed that both he and Ms Nottle had spoken on two occasions by phone, and that Mr Carroll had indicated that the offer proposed by Maersk was not acceptable in its current form.[77] Mr Carroll further referred to other matters that Maersk had chosen to ignore.[78] There was no indication in the content of Mr Carroll’s evidence that proposed agreements being discussed were not that of the DO Agreement and the EO Agreement.
However, the email from Mr Andersen dated 22 March 2019, stated that ‘our members believe strongly that the substance and intent of the existing EBA should remain part of the new EBA’. Before this point it is not apparent that this had been communicated in writing to Maersk; that is, Maersk had not been informed that the members believed strongly that the substance of the new agreements should in fact be that of the 2010 Agreements.
Mr Andersen’s evidence at hearing was that his position in bargaining meetings was guided by the members. Mr Andersen said that he gives advice to the members and ‘alternatives’ - the AMOU line and the ‘company’ line. Prior to November 2018, Mr Andersen’s evidence was that where the status of a clause was closed or marked green, the clause had been agreed upon.
Having therefore progressed in late March 2019 to the point reached in the negotiations, it was open to see why Maersk perceived the negotiations centred on the items in the DO Agreement and EO Agreement. I agree that the Unions’ Offer of Settlement was a fundamental departure from the negotiations that had taken part before the Offer was made.
It is correct that the Act does not proscribe a party in changing its, his, or her position concerning a claim or claims in a bargaining process. However, the Offer of Settlement was not simply a change in position, it was a fundamental change to the agreements being bargained, in circumstances where it was open to find that Maersk’s view that the DO Agreement and EO Agreement formed the basis of the negotiations was a reasonable view to have arrived at.
When asked why it took the Unions seven months to write the Offer of Settlement in circumstances where the Offer reflected what the membership wanted after the no vote, Mr Andersen’s response was to the effect that it depended on the availability of three different people. The emails that Ms Nottle sent to Mr Carroll and Mr Andersen on 10 June 2019 regarding capricious and unfair conduct, appeared to be an accurate depiction of the events that had unfolded. However, one could not have determined whether negotiations would have been set back by years.
On 30 May 2019, Ms Nottle sent an email to the Unions to reconvene a bargaining meeting.[79] On 10 June 2019, Ms Nottle sent an email to the AIMPE and the AMOU regarding their reversion to the content of the 2010 Agreements. On 15 July 2019, Ms Nottle sent further emails to the AIMPE and the AMOU requesting a response to the email of 10 June 2019. Evidently there was a lapse in time regarding the Unions’ written response to Ms Nottle’s communication. While I am appreciative of the logistics Unions may face responding to communications received, such as travel and inaccessibility to email, there was no evidence before me that sufficiently excused the lack of responsiveness in the circumstances.
I have observed in this decision that there is a relationship between s 443(1)(b) and the need to bargain in good faith under s 228 of the Act. I have also acknowledged that a Full Bench of the Commission in Esso Australia Pty Ltd v AMWU[80] cautioned against conflating the two requirements. In the decision of NUW v Riverland Oilseeds Pty Ltd (Riverland)[81] the Deputy President made some observations where there were allegations that a union was not meeting the good faith bargaining requirements. The Deputy President stated if there was concern about the union not meeting the good faith bargaining requirements then it was always open to it to pursue such remedies as are available for such a contravention under the Act. On the evidence before the Deputy President, he expressed that there was no evidence to suggest that such an application either was made or was in contemplation.[82]
Unlike the case in Riverland, there was evidence before me that Maersk had contemplated making an application for a contravention of s 228. Ms Nottle stated to the effect that while such application had been contemplated, it had not been pursued as the view of Maersk was to try, in effect, to limit a litigious or adversarial approach.
A meeting was held on 6 August 2019, and Ms Nottle stated that the Unions refused to discuss the current draft DO Agreement and EO Agreements. Mr Carroll’s evidence was that Ms Nottle’s recollections are hers, and that the Unions had furnished an Offer of Settlement which she likely refused to discuss. From the evidence, it is apparent that the meeting was terminated expeditiously with no bargaining occurring, and while Mr Carroll referred to Ms Nottle’s likely refusal to discuss the Offer of Settlement, the focus turns not to Ms Nottle’s conduct, but that of the Applicants. Thereafter, it was not until October 2019, near on two months later that the applications in this matter were made.
A lapse in good faith bargaining conduct, such as a lack of responsiveness to proposals in a timely manner, does not necessarily mean that a bargaining representative is not genuinely trying to reach agreement. However, the circumstances before me are not such that a mere lack of responsiveness is the only conduct in issue.
Maersk had made numerous attempts to secure further meetings during the course of bargaining after the vote in November 2018. As observed by Maersk, in the eleven months before the application was filed, there was one meeting where no progress or update was made (17 December 2018), one meeting where Maersk provided an updated offer (8 February 2019), and one meeting on 7 May 2019 where some reversions in the Unions’ position seemed apparent and Maersk asked the Unions to put their position in writing, resulting in the Offer of Settlement.
There are two temporal components to s 443(1)(b): the applicant must have been genuinely trying to reach agreement and must be genuinely trying to reach agreement.[83] On the evidence before me I cannot say that I am satisfied that the Unions have been genuinely trying to reach an agreement with Maersk. Further, while both Mr Andersen and Mr Carroll expressed a desire to genuinely reach an agreement, Mr Carroll stated that it was correct that since 10 May 2019 there had not been a bargaining meeting of any substance. The Unions clearly bear the onus of persuading me that they are genuinely trying to reach agreement, and whilst this is what Mr Carroll and Mr Andersen expressed, their conduct belies their assertions.
The Unions presented no evidence that between the last bargaining meeting on 6 August 2019, a meeting that was terminated quickly after the Unions’ refused to discuss the DO Agreement and EO Agreement, and the making of the application, that there had been any attempts to bargain. A lapse of near on two months in circumstances where there were no negotiations at the 6 August 2019 meeting. Perhaps two months in the context of two years or six years, may appear to be a minimal hiatus, but such a hiatus has occurred in the context where in May 2019, the Unions fundamentally changed their position, in circumstances where there had been several months in which to do so after the vote in November 2018.
Further, it is unclear to me why the Unions did not at any time inform Maersk that the clarification register did not accurately portray the status of bargaining, or that the Unions put no stock in it. How is a party to ascertain whether there is agreement to a claim, if the word of the Unions cannot be relied upon. Further, it would appear entirely reasonable to assume that a bargaining representative would not agree that a claim or clause had been closed out, unless instructed to provide that representation from those they represent, which would accord with Mr Andersen’s evidence regarding positions adopted.
This does not in turn mean that employees are thereafter bound to vote up a proposed agreement because their bargaining representatives have communicated agreement to several clauses or claims to the employer. However, in the circumstances of these applications, it is entirely reasonable that an employer may consider that agreement to a clause or claim, represents exactly that – agreement by the bargaining representatives having received feedback from their members, not that the clause of claim is getting ‘warmer’ so to speak.
It is perhaps the case that after the unsuccessful vote for the DO Agreement and EO Agreement, the Unions considered the DO Agreement and the EO Agreement no longer provided the basis for proposed agreements. While Mr Andersen expressed in his email dated 22 March 2019, that ‘our members believe strongly that the substance and intent of the existing EBA should remain part of the new EBA’, it was not until 10 May 2019, that the Unions articulated their position in writing. While the change in position may be directed by the Unions’ membership, and it remains that a change in position is not proscribed by the Act, it nevertheless took six to seven months to formally articulate the position to an employer who was proceeding on the basis of negotiations that had occurred over the last two years in which progress had been made with two proposed agreements (DO Agreement and EO Agreement).
While it was open to Maersk to address some of the aforementioned conduct be seeking an application for bargaining orders, I do not consider the lack of such an application weighs against the conclusion I have reached. Clearly, such applications were in the contemplation of Maersk and Ms Nottle’s reasoning as to why they were not pursued is resoundingly plausible.
Conclusion
Given the totality of the evidence, and based upon what is before me, I must not make a protected action ballot order in relation to the two proposed agreements as I am not satisfied that the Unions have been and are genuinely trying to reach an agreement with Maersk. Therefore the applications are dismissed.
DEPUTY PRESIDENT
Appearances:
G Walsh of the Australian Maritime Officers’ Union for the applicants.
M Follet of Counsel for the respondent.
Hearing details:
2019.
Perth - Melbourne (by video link):
October 4.
<PR712968>
[1] Fair Work Act 2009 (Cth) s 442.
[2] PR712967.
[3] Fair Work Act 20019 (Cth) s 437(5).
[4] Fair Work Act 2009 (Cth) s 14.
[5] AIMPE Form F34 Application for a protected action ballot order p.2.
[6] AIMPE Form F34 Application for a protected action ballot order draft order.
[7] AMOU Form F34 Application for a protected action ballot order p.2.
[8] AMOU Form F34 Application for a protected action ballot order draft order.
[9] Witness Statement of Melanie Nottle [4].
[10] Witness Statement of Melanie Nottle [4].
[11] Witness Statement of Melanie Nottle [8].
[12] [2010] FWAA 5350; AE879211.
[13] [2010] FWAA 6042; AE879817.
[14] Witness Statement of Melanie Nottle [6].
[15] Witness Statement of Melanie Nottle [9].
[16] [2011] FWAA 3914; AE886338.
[17] Witness Statement of Melanie Nottle [10].
[18] Witness Statement of Melanie Nottle [11].
[19] Witness Statement of Melanie Nottle [13].
[20] Witness Statement of Melanie Nottle [14].
[21] Witness Statement of Melanie Nottle [15].
[22] Witness Statement of Melanie Nottle [15].
[23] Witness Statement of Melanie Nottle [16].
[24] Witness Statement of Melanie Nottle [17].
[25] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [9]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [9].
[26] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [6]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [6].
[27] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [6]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [6].
[28] Witness Statement of Melanie Nottle [21].
[29] Witness Statement of Melanie Nottle [22].
[30] Witness Statement of Melanie Nottle [23].
[31] Witness Statement of Melanie Nottle [23].
[32] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [7]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [7].
[33] Witness Statement of Melanie Nottle [26].
[34] Witness Statement of Melanie Nottle [26].
[35] Witness Statement of Melanie Nottle [26].
[36] Witness Statement of Melanie Nottle [26].
[37] Witness Statement of Melanie Nottle [26].
[38] Witness Statement of Melanie Nottle [27].
[39] Witness Statement of Melanie Nottle [28].
[40] Witness Statement of Melanie Nottle [29].
[41] Witness Statement of Melanie Nottle [29].
[42] Witness Statement of Melanie Nottle [30].
[43] Witness Statement of Melanie Nottle [30].
[44] Witness Statement of Melanie Nottle Annexure MN6.
[45] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [8]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [8].
[46] Witness Statement of Melanie Nottle [35].
[47] Witness Statement of Melanie Nottle [35].
[48] Witness Statement of Melanie Nottle [35].
[49] Witness Statement of Melanie Nottle [38].
[50] Witness Statement of Melanie Nottle [41].
[51] Witness Statement of Melanie Nottle [46].
[52] Witness Statement of Melanie Nottle [50]; .
[53] Witness Statement of Melanie Nottle [50].
[54] Witness Statement of Melanie Nottle [50].
[55] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [10]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [10].
[56] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [10]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [10].
[57] Witness Statement of Melanie Nottle [55].
[58] Witness Statement of Melanie Nottle [55].
[59] Witness Statement of Melanie Nottle [54].
[60] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [11]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [11].
[61] Witness Statement of Melanie Nottle Exhibit MN31.
[62] Witness Statement of Melanie Nottle Exhibit MN30.
[63] Witness Statement of Melanie Nottle Exhibit MN27.
[64] Witness Statement of Melanie Nottle [60] Exhibit MN30 and MN31.
[65] Witness Statement of Melanie Nottle [62].
[66] Witness Statement of Melanie Nottle [62].
[67] Form F34 Statutory Declaration of Michael Carroll (AIMPE) [12]; Form F34 Statutory Declaration of Glenn Andersen (AMOU) [12].
[68] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 [57].
[69] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 at [32]; National Union of Workers (NUW), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Sakata Rice Snacks Australia Pty Ltd[2016] FWC 6262 at [25].
[70] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 [54].
[71] [2015] FWCFB 210.
[72] Ibid [18].
[73] Ibid [34].
[74] Witness Statement of Melanie Nottle [35].
[75] Witness Statement of Melanie Nottle [41].
[76] Witness Statement of Melanie Nottle [46].
[77] Witness Statement of Melanie Nottle Annexure MN18.
[78] Witness Statement of Melanie Nottle Annexure MN18.
[79] Witness Statement of Melanie Nottle [58].
[80] [2015] FWCFB 210.
[81] [2013] FWC 5914.
[82] [2013] FWC 5914 [18].
[83] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 [54].
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