Australian Maritime Officers’ Union, The v Southern Ports Authority T/A Southern Ports
[2024] FWC 728
•20 MARCH 2024
| [2024] FWC 728 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Maritime Officers’ Union, The
v
Southern Ports Authority T/A Southern Ports
(B2024/227)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 MARCH 2024 |
Proposed protected action ballot of employees of Southern Ports Authority T/A Southern Ports
Issue and outcome
This decision concerns an application by the Australian Maritime Officers’ Union (AMOU), pursuant to s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order. The application was made on 18 March 2024 and relates to employees who are members of the AMOU and are employed by Southern Ports Authority T/A Southern Ports (Southern Ports) based in Esperance, Western Australia.
Bargaining to establish an agreement commenced in or around 19 May 2023, at which time Southern Ports issued a notice of employee representational rights (NERR).[1] Since that time, two representatives of the AMOU have assumed negotiation roles on behalf of the AMOU’s members. The first, Mr Glenn Walsh, Senior Industrial Officer of the AMOU, who appears to have assumed the lead role. Second, Ms Ginny Rabeling, Industrial Officer of the AMOU, who attended a bargaining meeting on 1 November 2023, when Mr Walsh was unable to attend.
In addition to the AMOU, other bargaining representatives include the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division, and five employee bargaining representatives.
Southern Ports initially objected to the application. The basis of its objection to the application appeared to be two-fold. First the AMOU had not been and was not genuinely trying to reach agreement with respect to, what Southern Ports contends, was the inclusion of a non-permitted matter. Second in respect of the draft order and the ballot questions listed, the inclusion of certain questions in respect of proposed industrial action, had, according to Southern Ports, made the nature of the action unclear, such that the application had essentially been rendered invalid.
Further objections to the application, insofar as I could glean, included:
a) the proposed action by the AMOU and the allegation that Southern Ports had fallen foul of its obligations under s 228 of the Act to bargain in good faith, was both disappointing and rejected;
b) allegations of unfair conduct on the part of Southern Ports, were misleading and without foundation;
c) the application for a protected action ballot order was deficient in that it incorrectly nominated Mr Keith Wilks, Chief Executive Officer, as the contact person for Southern Ports when Mr Clint Carlson, HR Manager of Southern Ports, was the correct contact and this was known to the AMOU;
d) each employee is bound by a current common law contract which dictates their individual rate of payment; it followed that there was no inherent disadvantage to Southern Ports not making a ‘cash payment’ offer. Southern Ports had committed in writing and during the negotiation process that no employee would be worse off under the proposed agreement; and
e) Southern Ports had not changed accountants and the statement of the AMOU which suggested otherwise, was false and misleading.
The hearing of this matter was listed for 20 March 2024. However, at 10:01PM (AWST) on 19 March 2024, Southern Ports advised that it wished to withdraw the objection on the basis that it did not have the legal and human resources to address the matter in the timeframe provided. Parties were therefore advised that the hearing was vacated and that a decision would be made on the papers.
For the reasons that follow, an Order has been separately issued in PR772577.
The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.
For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 9 April 2024.[3] This also establishes the ballot period for the purpose of s 448A(2) of the Act.
Whilst an abridged version of this decision could have been provided, in light of the materials filed and my assessment that they evince a level of confusion as to the requirements for the making of a protected action ballot order, I considered it was appropriate to provide succinct reasons.
Background
In the Form F34B Declaration in support of an application for a protected action ballot order, Mr Walsh described and declared at question 2.1:
…
Bargaining for a New Agreement
1. Southern Ports issued a Notice of Employee Representational Rights (“NERR”) on 19 May 2023
2. Since the notice issued, there have been 13 meetings scheduled on the following dates:
a.15 June 2023;
b.27 July 2023;
c.10 August 2023;
d.24 August 2023;
e.7 September 2023;
f.5 October 2023;
g.19 October 2023:
h.November 2023;
i.8 December 2023
j.11 January 2023
k.25 January 2024;
l.8 February 2024;
m.11 March 2024;
3. Each negotiated meeting, if not cancelled, went for about 1 to 2 hours.
4. I have attended every negotiated meeting, except for the meeting held on 1 November 2023. Ms Ginny Rabeling, AMOU Industrial Officer, attended that meeting on my behalf, as I was on annual leave.
5. The AMOU presented their log of claims on 28 June 2023.
6. The Electrical Trades Union (“known as ETU”) presented their log of claims on [date/month/year].
7. The Maritime Union of Australia (“known as MUA”) presented their log of claims on [date/month/year].
8. Employee appointed bargaining representative Mr Benjamin Stangoni presented his log of claims on 6 July 2023.
9. Employee appointed bargaining representative Mr Tony Leeson presented his log of claims on 6 July 2023.
10. Employee appointed bargaining representative Mr Allen Trigg presented his log of claims on 6 July 2023.
11. Employee appointed bargaining representative Mr David Graham presented his log of claims on 6 July 2023.
12. The AMOU, Southern Ports, MUA, ETU and the three (3) employee appointed bargaining representatives has reach in-principle agreement on some claims, However, there are three claims where the parties are yet to reach agreement on. These include:
a.Housing allowance $200 a week with Southern Ports offering salary sacrificing;
b.Location allowance 15% with Southern Ports offering 10%;
c.One-off pay out of excess (>200hrs) personal leave with Southern Ports not in agreement; and
13. On 11 December 2023 I gave notice to Southern Ports that due to not being able to provide any offer of cash salaries over the life of the agreement in a timely manner, AMOU was considering seeking bargaining orders. Southern Ports say they have changed accountants and are waiting on their advice on what cash salaries can be offered over the life of the agreement.
14. On filing of this application, Southern Ports has still not provided an offer of cash salaries over the life of the agreement which now equates to X months of not providing this essential information to the AMOU.
15. Due to the unfair conduct in bargaining by Southern Ports with regard to not being able to provide a cash salary figure, at no time during the 10 months of bargaining for the replacement agreement, AMOU has raised a further claim:
a.Cash salaries to be backdated to start of bargaining with the Southern Ports offering 1 January 2024.
16. It is the AMOU’s position we have been genuinely trying to reach agreement and will continue working with Southern Ports to reach a replacement agreement.
Threshold
It is not in dispute that the AMOU is a bargaining representative and hence has standing to make this application. Notwithstanding the contention of Southern Ports with respect to identifying its Chief Executive Officer as the contact person, I am of the view that the AMOU had made a proper application as required by the Act and met the documentary and notice requirements for the application. Furthermore, the AMOU was not prevented from bringing the application by virtue of s 438, given that there had been no prior agreement and as such, there was no nominal expiry date of an applicable agreement.
To reiterate, Southern Ports 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 therefore 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.
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot.
(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.[4] It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.[5] 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.[6]
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 Australian Manufacturing Workers’ Union cautioned against conflating the two requirements.[7]
Consideration
Several criticisms had been levelled at the application regarding the incorrect nomination of Mr Wilks as the contact person and that the AMOU had made allegations against Southern Ports, such that it had engaged in unfair and misleading conduct without foundation.
In respect to the first criticism, I am of the view that Southern Ports has been provided with adequate opportunity to respond to the application notwithstanding that Mr Wilks was identified as the contact person. Southern Ports was provided with an initial opportunity to file a response to the application, by the Chambers of Deputy President Hampton on 18 March 2024. A further opportunity to file further materials (as provided in the directions issued to the parties on 19 March 2024) and to speak to its opposition to the application was proffered to Southern Ports, with a hearing listed on 20 March 2024. It follows that no prejudice has arisen from the application having been directed to the attention of Mr Wilks in the first instance.
Concerning the second criticism, the evidence does not suggest that the AMOU has engaged in conduct that would lead to a finding that it had not, and was not, genuinely trying to reach agreement. Disagreements about how each party perceives the other during the course of bargaining are not unusual. Southern Ports has evidently taken umbrage to an assertion that it has engaged in unfair conduct. However, the focus here is not on the conduct of Southern Ports. It is on whether the requirements set out in s 443 of the Act have been met. It follows that the other concerns raised by Southern Ports as outlined at paragraph [5] of this decision, are not pertinent to a determination as to whether a protected action ballot order should be made. However, Southern Ports other objections to the application, namely the pursuit of non-permitted matters and issues with the questions, warrant consideration.
5.1 Pursuit of a non-permitted matter
Southern Ports submitted that the AMOU has not been and is not genuinely trying to reach agreement because it is bargaining for a so called ‘Location Allowance’, which Southern Ports considered not to be a permitted matter as it was not an award entitlement nor was it included in the National Employment Standards.
The AMOU appears to hold the view that a ‘location allowance’ does not concern a non-permitted matter and essentially pressed that what constitutes a permitted matter in making an enterprise agreement is not what the Commission is required to determine when making an order for a protected action ballot order. The AMOU noted that, in any event, Southern Ports had offered a 10 percent location allowance which it was willing to include in the agreement. The AMOU stated that such claim was still in dispute.
A fair evaluation of the submissions proffered by both parties, is that there is a level of confusion regarding what is a ‘permitted matter’ and its relevance to bargaining, or, more particularly, to the type of application currently on foot.
As to what constitutes a permitted matter is defined in s 12 of the Act, which relevantly states: ‘permitted matters in relation to an enterprise agreement: see subsection 172(1).’ Subsection 172(1) provides:
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
a)matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
b)matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
c)deductions from wages for any purpose authorised by an employee who will be covered by the agreement;
d)how the agreement will operate.
Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.
Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement will be covered by the agreement if the organisation notifies the FWC under section 183 that it wants to be covered.
The Full Bench in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[8] (Esso) stated:
[57] Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad).
[58] In our view the adoption of a decision rule or principle of the type proposed in Australia Post No.1 and Airport Fuel Services would be an inappropriate fetter on the exercise of what the legislature clearly intended would be a discretionary decision. As Bowen LJ observed in Gardner v Jay:
“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Act or the Rules do not fetter the discretion of the Judge why should the court so do.”
[59] There is no legislative warrant for the adoption of a decision rule such that if an applicant is, or has been, pursuing a substantive claim which is not about a permitted matter it is not genuinely trying to reach an agreement within the meaning of s.443(1)(b). The fact that an applicant is, or has been, pursuing a claim about a nonpermitted matter is relevant to whether the test posited by s.443(1)(b) has been met, but it is not determinative of the issue. A range of factual considerations may potentially be relevant in that context, including but not limited to the subject matter of the claim, the timing of the advancement of the claim, the basis upon which the claim is advanced, the significance of the claim in the course of the negotiations, the claimant’s belief as to whether the claim is about a non-permitted matter or not, where there is legal clarity about the permitted status of the claim, whether the other party has placed in contest whether the claim is about a permitted matter, and whether such a claim has been withdrawn and, if so, when and in what circumstances. The diversity of the factual circumstances and nuances which will be found in different cases means that it is not possible to say that any particular factor or consideration will always be determinative of the result.
The decision of the Full Bench in Esso makes clear that if there is a scenario where an applicant is, or has been, pursuing a claim involving a non-permitted matter, this will be relevant to whether the test in s 443 is met, but is not determinative. As was identified by the Deputy President in The Australian Workers’ Union v Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium,[9] Esso holds that a range of factual considerations may potentially be relevant in that context, including the claimant’s belief as to whether the claim is about a non-permitted matter or not, and whether there is legal clarity about the permitted status of the claim.
Based on what was advanced by the parties, I am not persuaded that it can only be concluded that a ‘location allowance’ concerns a non-permitted matter. In my view, it is a matter that is open to be characterised as a matter pertaining to the relationship between employer and employees as contemplated by s 172(1) of the Act. In any event, when the totality of the evidence is considered, I do not consider the pursuit of a ‘location allowance’ poses an impediment to finding that the AMOU has been and is genuinely trying to reach agreement with Southern Ports.
5.2Questions
Southern Ports pressed that the language in clauses four and six was blighted by spelling errors, such that the impact was that Southern Ports could make little sense when the voting date would close and that the question in respect of a ‘partial work ban’ lacked any particulars in respect of ‘supervision duties’.
In respect of the first issue, the AMOU did not appear to have identified the spelling error in the draft order. In fact, it stated that there were no spelling errors. Turning to the draft order, clause 4 states:
4. DATE BY WHICH BALLOT CLOSES
The date by which voting in the protected action ballot is too close is eight (8) working days after the Commencement Date, specified in Order 6.2.2.[10]
Clause six stated as follows:
6. VOTING METHOD
6.1 The ballot is to be conducted by electronic voting and voting must take place in compliance with the Act, the Fair Work Regulations 2009 (Regulations) and this Order.
6.2 Pursuant to s.450 of the Act, the Agent is to conduct the protected action ballot in accordance with the following directions:
Timetable
6.2.1 The Agent will commence the ballot no later than four (4) working days after being provided lists from the Employer and the Australian Maritime Officers’ Union (Commencement Date).
6.2.2 The date by which voting in the protected action ballot is too close is eight (8) working days after the Commencement Date. (my emphasis)[11]
It is evident that there are typographical errors in the order sought. I am of the view that correction of the draft order in this respect is warranted and permitted.[12] Evidently, the reference was meant to be to a preposition, but instead an adverb was used. I do not consider it too problematic to amend the proposed order accordingly.
There appeared to be some confusion regarding the ‘Commencement Date’, the application referring to ‘the protected action ballot too close is ten (10) working days after the Commencement Date’ and the draft order referring to eight working days. The AMOU clarified its position that the draft order was correct and as such, sought a correction to its application to mirror the contents of the draft order, which I have permitted.
Regarding the objection to the question in respect to a ‘partial work ban’ which lacked particulars in respect of ‘supervision duties’, I note that the objection is no longer pressed.
Conclusion
On the basis of the material before me and having regard to the submissions made by
both parties, I am satisfied the AMOU has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, I must make a protected action ballot order. As stated, the Order[13] has been issued separately to this decision.
DEPUTY PRESIDENT
[1] Form F34B – Glenn Walsh Declaration in support of an application for a protected action ballot order, [2.1(4)] (Walsh Declaration).
[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
[3] This is, in effect, is eight working days after the expected ‘Commencement Date’ of the ballot (eight working days from the making of this order), as sought in the application.
[4] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2015) 247 IR 5, 24 [57] (Esso).
[5] Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407, 412 [32] (TMS); National Union of Workers (NUW) v Sakata Rice Snacks Australia Pty Ltd[2016] FWC 6262, [25].
[6] Esso (n 4) 23–4 [54].
[7] Ibid 13 [18].
[8] Ibid 69 (emphasis added).
[9] [2018] FWC 1613.
[10] Applicant’s Draft Protected Action Ballot Order, Order 4 (emphasis added).
[11] Ibid Order 6 (emphasis added).
[12] Fair Work Act 2009 (Cth), s 586(1).
[13] PR772577.
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