Australian Maritime Officers' Union, The v Harbour City Ferries Pty Ltd and Others

[2015] FWC 5127

[2015] FWC 5127

FAIR WORK COMMISSION

INTERIM DECISION

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

Australian Maritime Officers' Union, The

v

Harbour City Ferries Pty Ltd and Others

(B2015/766)

COMMISSIONER CAMBRIDGE SYDNEY, 29 JULY 2015

Application for a Scope Order.

[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 27 July 2015, by the Australian Maritime Officers' Union (the AMOU).

[2] The application identified the following respondents: Harbour City Ferries Pty Ltd (the employer or HCF); the Maritime Union of Australia (the MUA); and the Australian Institute of Marine and Power Engineers (the AIMPE).

[3] The matter was listed today 29 July 2015, for an urgent Hearing to deal with an Interim Order foreshadowed by the AMOU. The urgency has arisen because the AMOU seeks to have the Commission restrain HCF from conducting a scheduled ballot of relevant employees who have been requested to vote in respect of a proposed Enterprise Agreement to replace the Sydney Ferries Maritime (AMOU and MUA) Enterprise Agreement 2012 (the 2012 Agreement). The ballot of relevant employees has been scheduled for tomorrow, 30 July 2015.

[4] At today’s Hearing the Commission identified that the matter involved, inter alia, a degree of complexity such that the matter 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 and permission was granted for Mr A Howell barrister, to appear on behalf of the AMOU and Mr Y Sherriff barrister to appear on behalf of the employer. The MUA was represented by Mr P Garrett, and the AIMPE was represented by Mr J Fallone.

[5] The Hearing has involved the Commission provisionally accepting evidence on behalf of the AMOU in the form of witness statements of Mr J Wydell respectively dated 27 and 28 July 2015. Further, evidence was provisionally accepted on behalf of HCF in the form of a statement of Mr D Moy. The evidence was admitted today on a provisional basis to the extent that only material relevant to the question of the interlocutory relief sought by the AMOU was to be considered. The Parties provided submissions which were also confined to the contest regarding the provision of any Interim Orders.

[6] Unfortunately there is a long and troubled history associated with negotiations for an Enterprise Agreement to replace the 2012 Agreement. It is unnecessary to traverse the details of the background which has preceded tomorrow’s scheduled ballot of employees in respect to the proposed Harbour City Ferries Maritime Agreement 2015 (the 2015Agreement). The troubled history of negotiation is amply reflected in the 15 May 2015 Full Bench Decision in Australian Maritime Officers Union v Harbour City Ferries and Others. 1

[7] The AMOU has sought the intervention of the Commission to stop the scheduled ballot of employees in respect to the 2015 Agreement primarily because it opposes the scope of the 2015 Agreement and it argues that any vote in respect of the 2015 Agreement should not occur until after a final determination of its application for a scope order is made. There is an undeniable logic that if the vote in respect to the 2015 Agreement is not stopped and the 2015 Agreement is subsequently made, and in due course approved, the application for a scope order would become a futility. There is an opportunity for the scope order to be determined after the Agreement was made but before any approval by the Commission, but realistically, the position would be much more difficult for the AMOU.

[8] Consequently, the AMOU 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 the ballot in respect of the 2015 Agreement pending the final determination of the scope order application.

[9] HCF have opposed any intervention restraining the ballot in respect of the 2015 Agreement. HCF has asserted that the AMOU application for a scope order has been made inordinately late and in the circumstances it should not be entertained. In particular, HCF has asserted that the application for a scope order made by the AMOU is little more than a last-minute attempt to disrupt the prospect of the enterprise bargaining process finally achieving a replacement for the 2012 Agreement.

[10] An application for any interlocutory relief by way of 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.

[11] Initially it would appear that in circumstances where the ballot of employees may effectively nullify the scope order application the balance of convenience would operate as a strongly supportive basis to provide for a restraint of the ballot pending the final determination of the scope order application.

[12] However, in this instance it is important to carefully consider the long and troubled history of negotiations which has most recently included the application for a scope order being made only three days before the scheduled ballot of employees. It is significant that this difficult history has included the making and approval of an earlier Enterprise Agreement, the Harbour City Ferries Maritime Agreement 2014 (the 2014 Agreement).

[13] The 2014 Agreement contained essentially the same scope as both the 2012 and the proposed 2015 Agreements. However this scope was not clearly identified in the Notice of Employee Representational Right (NERR) which had been issued for the 2014 Agreement and approval of the 2014 Agreement was subsequently quashed by the Full Bench on appeal lodged by the AMOU.

[14] A primary basis upon which the AMOU application for a scope order has been advanced involves a complaint that its members (and members of the AIMPE) are outnumbered by the MUA members and therefore it wishes to divide the existing scope and have a separate enterprise agreement to apply to AMOU and AIMPE members. The AMOU dissatisfaction with the existing and proposed scope emerged during 2014 as a result of the dysfunctional state of the Unions’ single bargaining unit.

[15] It is highly regrettable that the single bargaining unit has been unable to achieve a workable level of consensus between the constituent Unions which, in broad terms, respectively represent persons who perform different functions for HCF. Whether the difficulties that have confronted the constituent Unions were fostered or promoted by actions of HCF is a matter that is largely irrelevant to consideration for present purposes. The Unions, both individually and collectively, bear their own responsibility for their actions. The potential for serious disharmony particularly between persons who are required to work in a team environment on vessels which provide public transport for ferry travellers on Sydney Harbour, is a matter of serious concern, and for which ultimate responsibility rests with HCF.

[16] In circumstances where bargaining representatives are comprised by a number of Unions, and an approach has been adopted whereby a single bargaining unit has been formed so as to act with a degree of solidarity, there is considerable prospect that the reasonable claims of any minority group would be properly addressed before any endorsement would be provided for a proposed Agreement. Of course the level of realised solidarity may fluctuate and depend upon the broader perception of the reasonableness or otherwise of particular minority or sectional issues. The principles of Unionism would usually extend to ensuring that minority interests are not trampled by one numerically dominant Union.

[17] Enterprise bargaining often involves scope or coverage within which there are identifiable groups who may represent a minority or sectional interest. There are often dissatisfied minorities, indeed sometimes individuals, who have to reluctantly accept the outcome determined by a majority vote in support of an Enterprise Agreement. This circumstance can be described as the tyranny of workplace democracy.

[18] The AMOU’s desire to alter the scope as it existed in the 2012 Agreement, was a matter that was identified at the time that the 2014 Agreement was voted upon in October 2014. Indeed, members of the AMOU and the AIMPE participated in a voting process separate from members of the MUA. The issue of scope has remained contentious. The scope issue has continued to trouble negotiations following the Full Bench Decision in May 2015. Consequently, in circumstances where the application for a scope order was not made until 27 July 2015, within days of the scheduled vote for the 2015 Agreement, the ordinary balance of convenience considerations must be recalibrated.

[19] In the context of protracted, difficult enterprise bargaining which has identified that the question of scope was contentious, an application for a scope order made only days before a scheduled vote on a proposed Enterprise Agreement provides the appearance of an eleventh hour hand grenade. The unacceptably belated approach of the AMOU is further exampled by its related application made yesterday under s. 229 of the Act.

[20] In the unusual circumstances of this case, and given the particular timing of the application for a scope order, I have not been persuaded that, good conscience, fairness or justice would be served by providing for any interim relief as sought by the AMOU.

[21] The AMOU application for interlocutory relief is refused accordingly. The AMOU is directed to advise the Commission as to whether it seeks further proceedings in this matter and the related s.229 application, following the outcome of the ballot in respect of the proposed 2015 Agreement.

COMMISSIONER

Appearances:

Mr A Howell of Counsel together with Mr J Wydell appeared on behalf of the Australian Maritime Officer’s Union.

Mr Y Shariff of Counsel appeared on behalf of Harbour City Ferries Pty Ltd.

Mr P Garrett appeared on behalf of the Maritime Union of Australia.

Mr J Fallone appeared on behalf of the Australia Institute of Marine and Power Engineers.

Hearing details:

2015.

Sydney:

July, 29.

 1   Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers, [ 2015] FWCFB 3337.

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