Australian Maritime Officers' Union, The v Fremantle Port Authority - [2024] FWC 988

[2024] FWC 988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.238 - Application for a scope order

Australian Maritime Officers' Union, The
v

Fremantle Port Authority

(B2024/56)

DEPUTY PRESIDENT BINET

PERTH, 17 JUNE 2024

Application for a scope order - Fremantle Port Authority – Application refused

The Australian Maritime Officers Union (AMOU) has filed an application (Application) pursuant to section 238 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC). The Application seeks a scope order in relation to bargaining for an agreement to cover employees of the Fremantle Ports Authority (Port Authority) currently covered by the Fremantle Ports Marine Services Enterprise Agreement 2020 (2020 Agreement).

The 2020 Agreement covers employees of the Port Authority in the classifications of Small Craft Master (SCM) and Vessel Traffic Service Officer (VTSO).[1] Bargaining for an agreement to replace the 2020 Agreement (Replacement Agreement) commenced with the issuing of a Notice of Employee Representation Rights (NERR) by the Port Authority to employees covered by the 2020 Agreement (Employees). The AMOU seek an order that the VTSOs are excluded from the scope of employees covered by the Replacement Agreement.

On 8 February 2024, the parties participated in a conciliation, but the issues in dispute could not be resolved.

Directions for the filing of materials in advance of a hearing were issued to the parties on 12 December 2023 and amended on 18 January 2024 (Directions). The Application was listed for hearing in person in Perth on 19 April 2024 (Hearing).

Permission to be represented

The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[2]

Both parties sought permission to be represented at the Hearing.

Having considered the submissions of the parties, leave was granted to both parties to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

At the Hearing Mr Luke Tiley (Mr Tiley) a solicitor employed by Hall Payne Lawyers appeared on behalf of the AMOU and Mr Leigh Howard (Mr Howard) of Counsel appeared on behalf of the Port Authority.

Evidence

In advance of the Hearing the AMOU filed witness statements of the following witnesses setting out their evidence in chief:

Mr Glen Adrian Walsh (Mr Walsh) – Mr Walsh is a Senior Industrial Officer employed by the AMOU representing both VTSOs and SCMs. Mr Walsh provided two statements in these proceedings.[3]
Mr Michael Vickery (Mr Vickery) – Mr Vickery is employed by the Port Authority as a VTSO. He was appointed as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Maritime Officers' Union, The v Fremantle Port Authority [2024] FWC 988
Case: [2024] FWC 988
Decision Date: 17 JUNE 2024

CaseChat Overview and Summary

The Australian Maritime Officers Union (AMOU) applied to the Fair Work Commission (FWC) for a scope order pursuant to section 238 of the Fair Work Act 2009 (Cth) (FW Act) to exclude Vessel Traffic Service Officers (VTSOs) from the scope of a proposed single enterprise agreement to cover Small Craft Masters (SCMs) and VTSOs employed by the Fremantle Port Authority (Port Authority). The Port Authority opposed the Application. The Deputy President found that the AMOU had standing to make the Application, however it had not met the good faith bargaining requirements and making the order sought would not promote the fair and efficient conduct of bargaining. The group of employees proposed to be covered by the Replacement Agreement was not fairly chosen and it was not reasonable to make the order sought. The Application was dismissed.

Orders