Australian Maritime Officers' Union, The v Tidewater Marine Australia Pty Ltd
[2016] FWC 6209
•5 SEPTEMBER 2016
| [2016] FWC 6209 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Maritime Officers’ Union, The
v
Tidewater Marine Australia Pty Ltd
(C2016/676)
COMMISSIONER CLOGHAN | PERTH, 5 SEPTEMBER 2016 |
Application to deal with a dispute. Alleged dispute about any matters arising under the enterprise agreement.
[1] This is an application by the Australian Maritime Officers Union (AMOU) pursuant to s.739 of the Fair Work Act 2009 (FW Act) to deal with a dispute pursuant to the Tidewater Marine Australia Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010 (Agreement).
[2] The AMOU is in dispute with Tidewater Marine Australia Pty Ltd (Tidewater or Employer).
[3] Clause 12 of the Agreement is entitled “Settlement of Disputes Procedures” (DSP) and reads as follows:
The Employer, Officers and AMOU agree to strictly adhere to this dispute settlement procedure, so that any dispute shall be promptly resolved by conciliation in good faith.
This is in recognition that it is for the overall benefit of the Employer and Officers. The procedure that will be followed to ensure the highest standard of industrial relations reliability is detailed as follows. In following this procedure all parties recognise and respect the valid roles of the other parties.
12.1. The parties to this Agreement shall undertake all necessary steps to ensure that the following procedures apply in the event of any grievance or dispute. The intention of this clause is to ensure that any dispute shall be promptly resolved by conciliation in good faith without provocative action or resort to industrial bans or stoppages.
12.2. Matters likely to become industrial issues - The Employer and AMOU shall respectively notify each other as soon as possible of any industrial matter, which in the opinion of that party might give rise to an industrial dispute. If the issue is vessel based all efforts will be made to resolve the matter onboard in the first instance.
12.3. Dispute at Shipboard Level - In the event of a dispute at a shipboard level, the matter is to be first discussed onboard between the AMOU representative and the Master with the aim of resolving the issue within 24 hours.
12.4. Lack of Agreement at Shipboard Level - If no agreement is reached at a shipboard level, an official of the AMOU Offshore Management group will be advised as soon as possible of the issue. The AMOU representative will then discuss the matter without delay with an appropriate Employer representative.
12.5. Resolution by Facilitator. If no agreement is reached after the above steps have been taken, the matter shall be referred to a mutually agreed facilitator for conciliation or determination if agreed.
12.6. Dispute Settlements. The above steps shall not preclude the right of either party to refer a dispute to the FWA prior to commencing the process outlined in 12.5.
12.7. Continuity of Work. Pending the completion of the procedure set out in this clause, work shall continue without interruption. No party shall engage in provocative action and pending the resolution of the dispute the status quo shall apply. The rights of individuals or parties shall not be prejudiced by the fact that work has continued under this process normally and without interruption.
RELEVANT LEGISLATIVE FRAMEWORK
[4] The FW Act relevantly provides at ss.738 and 739 as follows:
“738 Application of this Division
This Division applies if:
(a) …
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) …
(d) …”
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) …
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
MATTER FOR RESOLUTION
[5] The preliminary issue for resolution in this application is whether the application has been properly made in accordance with Clause 12 of the Agreement and s.739 of the FW Act. Put simply, has the Commission jurisdiction to deal with the application.
CONSIDERATION
[6] The Agreement is a single enterprise agreement. 1
[7] A single enterprise agreement is between a national system employer and their employees, pursuant to s.172(2)(a) of the FW Act. The employer and the employees are the “parties” who enter into an enterprise agreement.
[8] A single enterprise agreement is made when a majority of the employees that will be covered by an agreement, cast a valid vote to approve an agreement pursuant to s.182(1) of the FW Act.
[9] Employee organisations are not a party to an agreement but may be appointed by an employee(s) to be a bargaining representative or be what is commonly referred to as a “default” bargaining representative pursuant to s.176(1)(b) of the FW Act.
[10] At the time the Agreement was approved by the Commission, the AMOU declared that it was a bargaining representative for employees covered by the Agreement. Further the AMOU gave notice that it wished to be covered by the Agreement pursuant to s.183 of the FW Act.
[11] It should be noted that an employee organisation can only be covered by an enterprise agreement after the enterprise agreement is made and with written notice to the Commission.
[12] Clause 4 of the Agreement is entitled “Coverage and Terms of the Agreement” and relevantly reads:
4.1. This Agreement is made between Tidewater Marine Australia Pty Ltd and their Officers'. The agreement will be lodged with Fair Work Australia (FWA) as a Single Enterprise Agreement. The Union is the bargaining representative for those Officers whom are its members and will apply to FWA to be covered by the Agreement. (my emphasis)
[13] It is not in dispute that the “Union” referred to in sub clause 4.1 is the AMOU.
[14] Clause 3, Definitions of the Agreement, defines “Parties” as “Employer, Employees and the AMOU covered by this Agreement”.
[15] The AMOU concede that the application was made in the name of an individual of the AMOU and not in the name of the Union. The Applicant is properly the AMOU and should have been recorded as such in the application. However, pursuant to s. 586 of the FW Act, I consider it appropriate to allow an amendment to the application to record the AMOU as the applicant in the application.
[16] Having amended the application to record the AMOU as the applicant in the application, it is necessary to consider whether the application has been properly made. I intend to examine this issue by considering the following: the status of the AMOU; the status of the individual employees and whether the procedures in the DSP have been complied with.
Status of the AMOU to make the application
[17] In the first paragraph of Clause 12 of the Agreement, it states that the “Employer, Officers and AMOU agree to strictly adhere to this dispute settlement procedure”. It does not state that the AMOU is a “party” to the DSP.
[18] In subclause 12.1 of the Agreement, it states that, “the parties to this Agreement shall undertake all necessary steps to ensure that the following procedures apply in the event of any grievance or dispute …”
[19] The parties to the Agreement are, and can only be the Employer and employees, pursuant to s.172(2)(a) of the FW Act and subclause 4.1 of the Agreement.
[20] The AMOU relies upon the definition of “parties” in Clause 3 of the Agreement to make this application. However, the definition of “parties” in the Agreement cannot undo the provisions of the FW Act in which the Employer and its relevant employees are the parties and the AMOU is a representative of the employees. Further, the AMOU is described as a “party” in Clause 3 of the Agreement only in terms of being “covered by the Agreement”.
[21] Accordingly, in subclause 12.1 of the DSP, it is the Employer and employees who have agreed to undertake “all necessary steps to ensure that the following procedures apply in the event of a grievance or dispute”.
[22] This is not a shipboard dispute, therefore subclauses 12.3 and 12.4 of the DSP have no utility.
[23] Excluding what is often described as “motherhood” statements, the only procedure with substance relating to non-shipboard disputes, is that the Employer and the AMOU should notify the other as soon as possible of an industrial matter, “which in the opinion of that party might give rise to an industrial dispute” in subclause 12.2 of the DSP. (my emphasis)
[24] As this dispute is not a shipboard dispute, the procedure escalates to the procedure in subclause 12.5 of the DSP. However, that can be negated by the procedure in subclause 12.6 of the DSP, which enables the, “right of either party to refer the dispute to the FWA prior to commencing the process outlined in 12.5”.
[25] Consequently, we have a DSP in which the AMOU can inform the Employer (or vice versa) of an industrial matter, which in its opinion, might lead to an industrial dispute.
[26] Subclause 12.2 of the DSP having been complied with, a “party” in subclause 12.6 of the DSP, can refer a dispute to the Commission.
[27] In subclause 12.1 of the DSP, the simple and ordinary meaning of the “parties” to this Agreement means the Employer and employees. Consequently, it follows that it is only those parties who, “shall undertake all necessary steps to ensure that the following procedures apply in the event of any grievance or dispute”. Put shortly, it is express will of the Employer and employees in subclause 12.1 of the DSP, that they, and only they, who will undertake all the necessary steps to follow the procedures, including 12.6 of the DSP.
[28] The role of the AMOU in subclause 12.2 of the DSP is that of an “informant”.
[29] The role of the AMOU in subclauses 12.3 and 12.4 of the DSP, as the subclause describes, is as a “representative”. It would also appear that, as at the date the application was lodged, there were no employees, consequently the AMOU role ceased to exist as a representative.
[30] There is no reference in subclause 12.5 of the DSP as to how or who refers the matter to a mutually agreed facilitator.
[31] In view of the totality of Clause 12 of the DSP, I find that the status of the AMOU is that of an intermediary or representative, however, the only persons who are able to refer the matter to the Commission is the Employer or an employee consistent with the provision in subclause 12.1 of the DSP.
[32] To conclude, I wish to refer to the provisions in subclause 12.7 of the DSP. The focus of subclause 12.7 is “continuity of work”. “Work” is carried out by employees. In my view subclause 12.7, together with subclause 12.1, which refers to “industrial bans or stoppages”, confirms and affirms, that the “intention” of Clause 12 of the Agreement, is to ensure disputes between the Employer and employees, are resolved, in accordance with the procedures set out.
Status of Messrs Williams, Birss and Jackman
[33] In its submission to the Commission in relation to the substantive matter, the AMOU make submissions and propose witness evidence concerning three (3) persons who are in dispute with Tidewater. The three persons are:
Mr Williams;
Mr Birss; and
Mr Jackman.
[34] Messrs Williams, Birss and Jackman all ceased employment on 13 March 2016.
[35] This application was made on 24 March 2016.
[36] Consequently, and it is not in dispute, Messrs Williams, Birss and Jackman were not employees of Tidewater at the time this application was made.
[37] In its submission regarding the substantive matter, the AMOU submit that the matter in dispute between Messrs Williams, Birss and Jackman is that they
“… were not provided with the relevant period of notice of termination or payment in lieu thereof as specified in the Agreement”. 2
[38] Mr Jackman has a further matter in dispute, “that he was not paid his accrued annual leave, redundancy and long service leave entitlements”. 3
[39] The relief sought by the AMOU in its application is that, “notice in lieu of 25 days be paid to members over 45 years old and 18 days be paid for members under 45 years old”. Further, with respect to Mr Jackman the remedy sought is that he, “receive payment for 70.3587 long service leave days”.
[40] Alternatively, the dispute appears to be reading Ms Thompson’s email as to whether there was a “deal” between Tidewater and the maritime unions.
[41] The Commission’s jurisdiction to deal with this dispute is derived from the DSP. In paragraphs [17 ] to [32], I have set out my interpretation of the DSP in the context of the AMOU’s status and role.
[42] While the AMOU have sought, and I have agreed, to amend its application pursuant to s. 590 of the FW Act to replace Ms Thompson with the name of the Union, it is useful to consider, in any event, whether the application could have been made in the name(s) of either Messrs Williams, Birss or Jackman.
[43] The Full Bench in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619 (Goonyella) recently examined the status of employees, as it relates to s. 739(6) of the FW Act and a DSP.
[44] The Commission may deal with a dispute only on application by a party to the dispute. For the reasons set out in paragraphs [17 ] to [32 ], the DSP expresses in subclause 12.1 that it is the Employer and employees who are required to undertake all necessary procedural steps, including the making of an application to the Commission.
[45] An “employee” is a current employee not a former employee for the reasons set out by the Full Bench in Goonyella at paragraph [37]. The reasons are as follows. The word “employee” should be given its plain and ordinary meaning. It would be wrong to consider a former employee as an “employee”. Secondly, an “employee”, in this case an “Officer”, means a person “engaged by the Employer”. A former employee ceased to be engaged by the Employer at termination of their employment. Further, the Agreement does not, and cannot, apply to employees who are no longer engaged in employment. Finally, subclause 12.7 of the DSP envisages that the dispute is occurring at a time when the employee is employed, and pending resolution of the dispute, work is to continue as normal.
[46] In addition to the Commission only dealing with a dispute on application of a party to the DSP in accordance with s.739(6) of the FW Act, the Commission is prohibited from exercising any powers limited by the DSP pursuant to s.739(3) of the FW Act. Consequently, the Commission is only able to deal, or arbitrate a dispute, on application by a current employee. Messrs Williams, Birss and Jackman were former employees, at the time the application was made and consequently the Commission is unable to deal with the matter.
Extent of compliance with DSP procedures
[47] Section 186(6) of the FW Act provides that in approving an enterprise agreement, the Commission must be satisfied it contains a DSP. The Commission was so satisfied in approving the Agreement on 20 July 2010.
[48] The DSP in the Agreement is broader than the range of matters described in s.186(6)(a) in the FW Act.
[49] In its application, the AMOU state in response to the question, “What steps have already been taken to resolve the dispute under the dispute resolution procedure?” The AMOU relevantly respond:
“On the 8th March 2016, we suspected that notice in lieu was not going to be paid. We have had numerous emails between the AMOU and Tidewater since then.”
[50] An email referred to in paragraph [49] above relevantly reads
“Following our conversations today, in which you repeatedly alleged that Tidewater had a deal with the maritime unions that payment in lieu of notice period would not apply as the unions had agreed that the notice that Tidewater had given to our Members in November would suffice for some date in the future.
As I stated in our conversation, even if such an undertaken was provided it would be illegal. Furthermore, I have spoken to at least the MUA and they confirm that no such agreement has been reached and they have recently raised the same issue with you.
Please confirm that payment in lieu of termination notice, will be paid for the 4 or 5 weeks [for over 45 year old employees] less the 10 days provide from the day of notice on the 3rd March to the proposed termination date on the 13th March 2016.
If confirmation is not provided in the affirmative by close of business on the 11th March, we will in accordance with clause 12.6 of the Agreement refer the dispute to the Fair Work Commission.”
[51] Notwithstanding whether the matter concerns the relevant period of notice or payment in lieu to former employees, or the alleged “deal” between Tidewater and the maritime unions, it cannot be said that a telephone discussion and an email constitutes satisfaction of resolving matters by “conciliation in good faith” or ensuring the “highest standard of industrial relations reliability”.
[52] The approach taken by the AMOU appears to be - confirm payment in lieu of notice, or we will refer the matter to the Commission.
[53] A simplistic reading of subclause 12.6 of the DSP is that there are no pre-requisites to the matter being referred to the Commission other than the notification provision in subclause 12.2. However, if I take into account the aspiration provisions of “good faith”, and ensuring the “highest standards of industrial relations”, I am satisfied overall that the DSP was intended to be more than “agree to what we want or we will take the matter to the Commission”.
CONCLUSION
[54] For the above reasons, I find that the Commission has no jurisdiction to deal with the application and accordingly, the application must be dismissed. An order to this effect is issued with this Decision.
COMMISSIONER
Appearances:
J Wydell on behalf of the Applicant.
S White on behalf of Tidewater Marine Australia Pty Ltd.
Hearing details:
2016:
Perth,
7 July.
1 [2010] FWAA 5368 para 1
2 AMOU submission 20 June 2016 para 3.5
3 Ibid para 5
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