Australian Maritime Officers' Union v Argonaut Marine Group Pty Ltd T/A Argonaut

[2019] FWC 4773

[2019] FWC 4773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Maritime Officers’ Union
v
Argonaut Marine Group Pty Ltd T/A Argonaut
(B2019/392)

DEPUTY PRESIDENT BINET PERTH, 4 SEPTEMBER 2019

Argonaut Marine Pty Ltd, Port Dampier

[1] On 20 May 2019 the Australian Maritime Officers’ Union (AMOU) made an application (Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (FWC) to make a majority support determination (Determination). The Determination would require Argonaut Marine Group T/A Argonaut (Argonaut) to commence bargaining for a new enterprise agreement (Proposed Agreement) to cover those employees of Argonaut employed by Argonaut in the classification of marine pilot in Dampier, Western Australia (Employees).

[2] Argonaut initially advised Chambers on 21 May 2019 that it did not oppose the Determination being made and directions were issued to the parties for the filing of materials to determine whether the Application could be determined ‘on the papers’ (Directions).

[3] The Directions inter alia required the AMOU to:

a. file in the FWC on a confidential basis evidence that the AMOU has been appointed as a bargaining representative of one or more of the Employees;

b. file in the FWC on a confidential basis a petition signed by the Employees confirming their wish to commence bargaining; and

c. file in the FWC and serve on Argonaut a sworn statement regarding the circumstances in which the petition was obtained.

[4] On 5 June 2019 Argonaut advised Chambers that it did in fact oppose the Determination being made on the grounds that the group of employees proposed to be covered by the Proposed Agreement was not fairly chosen.

[5] In light of this advice, the Application was listed for a hearing on 10 July 2019 (Hearing).

[6] Argonaut sought permission to be represented by a lawyer at the Hearing.

[7] Section 596 of the FW Actprovides as follows:

“Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[8] Argonaut filed written submissions addressing these criteria and identifying relevant authorities. Given the factual and legal complexity of the Application I was satisfied that granting permission to Argonaut to be represented would enable the matter to be dealt with more efficiently.

[9] At the Hearing the AMOU was represented by Mr Glen Walsh (Mr Walsh). The following witnesses gave written or written and oral evidence on behalf of the AMOU:

a. Mr Steven Young (Mr Young)

b. Mr Ian Rogers (Mr Rogers)

c. Mr Darren Smith (Mr Smith)

[10] At the Hearing Argonaut was represented by Mr Alan Drake-Brockman of Livingstones & SHR Group (Mr Drake-Brockman). The following witnesses gave written or written and oral evidence on behalf of Argonaut:

a. Mr Trent Lonsdale (Mr Lonsdale)

b. Mr Kim Scott Lyons (Mr Lyons)

[11] Final Closing Submissions were filed by the AMOU on 6 August 2019 and by Argonaut on 20 August 2019.

Background

[12] Argonaut provides marine pilotage services in various ports in Western Australia and the Northern Territory. Argonaut currently employs eight marine or trainee marine pilots 1, three support staff and four pilot boat crew.2

[13] At the time the Application was filed on 20 May 2019 Argonaut employed the following marine pilots:

a. Mr Mark Tett (Mr Tett)

b. Mr David McDonald (Mr McDonald)

c. Mr Smith

d. Mr Rogers

e. Mr Young

[14] To date Argonaut have engaged its marine pilots on common law contracts. In early 2019 Argonaut offered the three marine pilots performing pilotage services in Dampier (Messrs Smith, Rogers and Young) new contracts (Dampier Pilots). Those offers provided that the Dampier Pilots must transfer from fly in fly out (FIFO) employment and become a resident of Dampier or Karratha on or before 1 December 2019 or they would be retrenched. 3

[15] According to Mr Young; one of the three affected pilots, the pilots were unhappy with their new contractual arrangements and decided that they would be better off bargaining collectively. 4

[16] In May 2019 the Dampier Pilots informed the AMOU that they wished to commence bargaining with Argonaut for an enterprise agreement. 5

[17] The AMOU attempted to initiate bargaining however Argonaut informed the AMOU that it did not wish to engage in bargaining. 6

[18] On 15 May 2019 the AMOU filed in the FWC and served on Argonaut this Application. 7

[19] In accordance with the Directions the AMOU obtained a petition signed by the Dampier Pilots confirming their wish to commence bargaining (Petition). The Petition was signed by Messrs Smith, Rogers and Young on 28 May 2019 and filed with the FWC the following day. 8 On the same date the AMOU also filed with the FWC and served on Argonaut a statutory declaration setting out the circumstances in which the Petition was obtained (Sworn Statement).9

[20] Argonaut oppose the Application on the grounds that the group of employees who will be covered by the Proposed Agreement is not fairly chosen.

Key Statutory Provisions

[21] Section 236 of the FW Act provides that:

“236 Majority support determinations

(1)  A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination ) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2)  The application must specify:

(a)  the employer, or employers, that will be covered by the agreement; and

(b)  the employees who will be covered by the agreement.”

[22] Section 237 of the FW Act provides that:

“237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

Consideration

[23] The AMOU have applied for the Determination. An organisation of employees can apply for a majority support determination provided it is a bargaining representative for at least one employee who would be covered by the proposed agreement. 10 There is evidence before me that Messrs Smith, Rogers and Young are financial members of the AMOU.11 I am therefore satisfied that the AMOU has standing to make the Application.

[24] The Application identifies the employer to be covered by the Proposed Agreement as Argonaut, and the employees to be covered by the Proposed Agreement as the employees of Argonaut employed by Argonaut in the classification of marine pilot in Dampier, Western Australia.

[25] The making of a majority support determination confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement. 12

[26] The FWC must make a majority support determination in the following circumstances:

“237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

Has Argonaut agreed to bargain?

[27] The FWC must be satisfied that the employer has not yet agreed to bargain or initiated bargaining for the proposed agreement. 13 Argonaut admits that it informed the AMOU that it did not wish to engage in bargaining for an enterprise agreement.14

Is the group of Employees fairly chosen?

[28] The FWC must be satisfied that the group of employees to be covered by the proposed agreement was fairly chosen. If the agreement will not cover all employees of the employer the FWC must take into account whether the group covered is geographically, operationally and/or organisationally distinct. Having determined whether the group is geographically, operationally and/or organisationally distinct the FWC must take that into account and give it due weight having regard to all the other factors. The FWC must state its reasons for concluding that the group of employees was or was not fairly chosen. 15

[29] The AMOU propose that the Agreement cover employees of Argonaut employed by Argonaut in the classification of marine pilot in Dampier, Western Australia.

[30] Argonaut currently employs eight marine/trainee marine pilots 16, three support staff and four pilot boat crew. The Proposed Agreement would not cover support staff or pilot boat crew. As the Proposed Agreement will not cover all employees of Argonaut it is therefore necessary to consider whether the group proposed to be covered is geographically, operationally and/or organisationally distinct.

[31] Argonaut concedes that the eight marine/trainee marine pilots are geographically, operationally and/or organisationally distinct from the support staff and pilot boat crew however Argonaut dispute that the employees of Argonaut employed by Argonaut in the classification of marine/trainee marine pilot in Dampier, Western Australia are geographically, operationally and/or organisationally distinct from the other marine pilots it employs.

[32] The Application was filed on 20 May 2019. At that time Argonaut employed the following marine pilots:

a. Mr Tett – Mr Tett is engaged on an equal time FIFO roster. He was initially based at Dampier, but his contract was amended, and his amended contract provides that his normal place of work is now Cape Preston. 17 He has a restricted licence to perform pilotage at Dampier.

b. Mr McDonald – Mr McDonald is engaged as a maritime pilot at Argonaut’s NT Port and Marine Pilotage operations. His contract provides that he will be based in Darwin. 18

c. Mr Smith commenced employment with Argonaut on 7 July 2015. Mr Smith is currently engaged on a FIFO basis to perform piloting services at Dampier. His new offer of employment provides that no later than 1 December 2019 he will be employed in the position of Residential Marine Pilot Dampier and that the location of his employment will be Dampier.    Mr Smith is licensed to perform work at the Ports of Dampier and Cape Preston. 19

d. Mr Rogers commenced employment with Argonaut on 6 August 2011. Mr Rogers is currently engaged on a FIFO basis to perform piloting services at Dampier. His new offer of employment provides that no later than 1 December 2019 he will be employed in the position of Residential Marine Pilot Dampier and that the location of his employment will be Dampier. Mr Rogers is licensed to work at the Ports of Dampier and Cape Preston. During a period of absence from his role at Dampier approximately two years ago he performed pilotage services at the Port of Melville. He says that he never received a formal licence for that Port and that licences if not kept current expire in as few as 3 months. 20

e. Mr Young commenced employment with Argonaut on 23 August 2012. Mr Young is currently engaged on a FIFO basis to perform piloting services at Dampier. His new offer of employment provides that no later than 1 December 2019 he will be employed in the position of Residential Marine Pilot Dampier and that the location of his employment will be Dampier.  21

[33] The Petition was signed by Messrs Smith, Rogers and Young on 28 May 2019. 22

[34] On 16 April 2019 Mr Rod Silvester (Mr Silvester) was offered employment by Argonaut. The offer was conditional upon Argonaut being awarded a contract with Shark Bay Salt Pty Ltd. His anticipated commencement date was 1 June 2019. His contract of employment provides that he may be rostered at multiple ports including Shark Bay, Useless Loop, Dampier and Melville. 23

[35] On 16 May 2019 Mr Mathew Arnup (Mr Arnup) was offered employment by Argonaut in the position of Shark Bay - Residential Pilot commencing 3 June 2019. Mr Arnup is a trainee marine pilot. His offer of employment provides that he must permanently reside in Denham. His contract of employment provides that he is responsible for managing all Shark Bay pilotage movements and must remain within 8 hours travelling time of the port at all times. 24

[36] On 6 June 2019 Mr Furtado was offered employment in the position of Onslow Residential Pilot commencing 15 July 2019. Mr Furtado is a trainee marine pilot. His offer of employment provides that he must permanently reside in Onslow. His contract of employment provides that he is responsible for managing all Onslow pilotage movements and must remain within 8 hours travelling time of the port at all times. 25

[37] Argonaut submit that the marine/trainee marine pilots are not organisationally, operationally and/or geographically distinct from one another because all of the marine/trainee marine pilots:

a. report to Mr Robert Walker the Operations Director of Argonaut;

b. hold similar qualifications;

c. are required to comply with common administrative and operational policies;

d. annually undertake emergency safety training in Fremantle; and

e. can be required to work at different locations including Dampier.

[38] The AMOU submit that the Dampier Pilots are geographically, operationally and/or organisationally distinct from the other marine/trainee marine pilots in a number of ways:

a. Geographically the other Ports are a significant distance from Dampier;

b. With the exception of Mr Silvester, the marine/trainee marine pilots are appointed to perform work at particular Ports, other than Dampier;

c. Each Port has separate licensing requirements;

d. Only the Dampier Pilots are licensed to work without restriction at Dampier. Mr Tett has a restricted licence to work at Dampier, but he has also expressed a desire to commence bargaining;

e. The marine/trainee marine pilots are remunerated differently.

[39] I am satisfied that the other Ports are geographically separate, located considerable distances from Dampier. One in fact is located in a different State. 26

Name of Port	Distance from Port of Dampier
Onslow	310km (3 hours 15 minutes by car)
Cape Preston	122km (1 hour 40 minutes by car)
Shark Bay	895km (9 hours 5 minutes by car)
Melville	2665km (30 hours by boat and car)

[40] With the exception of Mr Silvester all of the marine/trainee marine pilots are engaged to perform work at a particular Port. In fact, for several of the pilots, it is a condition of employment that they reside in the nearest township to the relevant Port.

[41] The marine/trainee marine pilots’ contracts do contain provisions in relation to work at alternate locations. For example, Mr Furtado, Mr Arnup, Mr Rogers, Mr Young and Mr Smith’s contracts provide that:

“From time to time the Company may offer you work at a place where the Company will seek to engage you under different terms and conditions of employment to those contained in your Contract of Employment. These changes in conditions are to be mutually agreeable.”

“From time to time, the Company may require you to temporally fill a position other than that to which you are normally assigned. This will not result in any reduction in your salary. Similarly relieving in a more highly paid position will not attract additional compensation.”

[42] Mr Silvester’s contract provides that:

“From time to time the Company may offer you work at a place where the Company will seek to engage you under different terms and conditions of employment to those contained in your Contract of Employment. In such cases the Company will specify those terms and conditions in writing to you and will ensure that those changed terms and conditions will be on balance no less favourable than those contained in this Contract of Employment.”

“From time to time, the Company may require you to temporally fill a position other than that to which you are normally assigned. This will not result in any reduction in your salary. Similarly relieving in a more highly paid position will not attract additional compensation.”

[43] Mr Tett’s contract provides that:

“Your normal place of work (excluding business travelling and work associated with the performance of your duties) is Dampier, Western Australia. This however may change to other locations within Australia as required by the Company.” 27

[44] Mr McDonald’s contract provides that:

“Your normal place of work is Darwin where you will perform a dual role of marine pilot and port administration officer (Harbour Master) for Port Melville. You will be embedded in the NT Port & Marine team at the East Arm office or on site at Port of Melville as required with your work scope and duties agreed with the Operations Manager, NT Port & Marine. This however may change to other locations within Australia as required by the Company. ” 28

[45] However Argonaut does not have any right to relocate its marine/trainee marine pilots on a permanent basis other than Mr Tett, Mr McDonald and Mr Silvester. Mr Lonsdale indicated that if an employee refused to relocate then the company would not direct them to do so. The right to relocate is therefore limited to temporary transfers. 29

[46] The evidence is that each Port has its own licensing requirements which can take from 2 months to more than 12 months to obtain. Mr Smith gave evidence that it took him 12 months from the time he acquired a restricted licence for the Port of Dampier before he became fully licenced. He concedes that a restricted level one licence could be obtained within six months however his evidence is that it would take an ‘absolute minimum’ of 12 months for a trainee marine pilot to become fully licensed in the Port of Dampier.

[47] The evidence is that licences have a limited duration and at least in some Ports require a minimum amount of work to be performed in that Port to maintain a current licence. 30

[48] Other than the Dampier Pilots, Mr Tett is the only pilot licenced to perform work at Dampier. Mr Tett’s licence is however restricted to highly manoeuvrable vessels. The evidence is that within the current work scope that it permits him to perform pilotage for 80% of the types of vessels using the Port but that it may take him 12 months or more to obtain an unrestricted licence. I note that in any event he has also indicted a desire to enter into bargaining. 31

[49] While I note that the Dampier Pilots are also licenced to conduct pilotage services at the Port of Cape Preston the evidence is that they don’t do so frequently. 32

[50] During a period of absence from his role at Dampier approximately two years ago Mr Rogers performed pilotage services at the Port of Melville. He says that he never received a formal licence for that Port and that licences if not kept current expire in as few as 3 months. It is therefore quite possible that his licence has now expired. 33

[51] There is no evidence before me that any of the marine pilots have in the past been regularly transferred temporarily or permanently between Ports.

[52] Given the licencing requirements and the remoteness of the Ports from each other the practicability, and therefore likelihood, of temporary transfers appears to be very limited if not completely impracticable and the possibility of permanent transfers limited to only a few pilots.

[53] While the marine/trainee marine pilots ultimately report to Mr Walker most of their contracts hold them personally accountable for pilotage movements at a specific port. There are significant differences in the manner in which the Ports operate. For example, the volume of ship movements per week varies significantly between the different Ports, the Ports are different depths, have different styles of berths and have ships with different types of cargo. Mr Lonsdale conceded that it was very difficult to get all the Pilots together because they are “geographically dispersed” and that operational updates are limited to monthly tele-conferences. 34

[54] Mr Furtado and Mr Arnup are not qualified marine pilots. They are currently undergoing training. They cannot operate unsupervised and must perform their duties under the guidance and direction of a licensed pilot. 35 Depending on the individual’s work history and qualifications the training process may take from a few months to two years. It is not uncommon for trainees to withdraw from or fail their training so there is no certainty that Mr Furtado or Mr Arnup will eventually qualify as marine pilots.36

[55] The marine/trainee marine pilots differ in terms of their employment arrangements and conditions. The Dampier Pilots and Mr Silvester are currently employed on a FIFO basis. The remaining marine/trainee marine pilots are employed on a residential basis. Those employed on a FIFO basis work a different roster to those engaged on a residential basis. Some are entitled to time in lieu for weekend work, others are not. Those employed on a residential basis are entitled to a company car, flight allowance and a local living subsidy. The amount of local living subsidy varies among the pilots. One pilot is entitled to a profit share bonus and another a sign on bonus. Some pilots are entitled to a retention bonus. The duties and position descriptions vary among the pilots. The remuneration of the highest paid marine/trainee marine pilot is more than $100,000 more than the lowest.

[56] These matters in combination with the geographic separation and practicable limitations on transfers between Ports weighs against a finding that the pilots are operationally or organisationally integrated with each other.

[57] I am therefore satisfied that the Dampier Pilots is a group that is geographically, operationally and/or organisationally distinct from the wider group of marine/trainee marine pilots employed by Argonaut.

[58] While the question of whether the group of employees to be covered by the agreement is geographically, operationally and/or organisationally distinct must be evaluated and given due weight it is not a determinative consideration. It is not necessary to make a finding that the group is geographically, operationally and/or organisationally distinct in order to be satisfied that a group of employees was fairly chosen. 37

[59] The word ‘fairly’ implies that the selection of the group is not arbitrary or discriminatory and is made on some objective basis. 38 In this regard it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreements coverage and employees who are excluded.39 Selection criteria based on employee characteristics such as gender would be unlikely to be fair. Selection criteria which would have the effect of undermining collective bargaining or other legislative objectives is also unlikely to be fair.40

[60] The selection of a group based on geographic location is not arbitrary or unlawfully discriminatory.

[61] Argonaut submit that even if the Dampier Pilots is a geographically, operationally or organisationally distinct group that it is not fairly chosen because:

a. Other marine/trainee marine pilots who are relocated to Dampier would be bound by a collective agreement which they did not have an opportunity to negotiate.

b. It would create an unfair administrative burden on Argonaut to negotiate and administer a separate agreement for each Port.

c. It would mean that some pilots would not have the opportunity to be covered by an enterprise agreement because they are the only pilot engaged at that particular port because it would be potentially legally impossible to have an agreement with one employee.

[62] Argonaut’s marine/trainee marine pilots, with the exception of Mr Tett, Mr McDonald and Mr Silvester, cannot be relocated to Dampier permanently without their consent therefore they would have the opportunity to decide whether or not they wished to be bound by the Proposed Agreement.

[63] Under their current contractual arrangements there is no financial recognition of the different complexity or workloads associated with the different Ports if pilots are temporarily transferred to another Port. Therefore, pilots transferred to the Port of Dampier from a smaller Port are currently only entitled to the renumeration in their contract which initially contemplated a much lighter workload. If an enterprise agreement covered the work at the Port of Dampier, they would receive the renumeration contemplated for a Port of the size and level of activity as the Port of Dampier.

[64] The current common law contracts for the pilots all differ in multiple ways. The registration of an agreement would potentially simplify Argonaut’s administrative burden by creating one set of terms for all pilots performing work at Dampier.

[65] If an agreement is reached with the Dampier Pilots, it is not necessarily the case that Argonaut would be bound to have separate agreements for each Port. There may well be compelling arguments to suggest that the balance of the Western Australian Pilots might be fairly chosen as a group of employees. Alternatively, it may be the case that neither employees or employer seek an enterprise agreement to cover the work to be performed at the other Ports, or that the parties reach an agreement which covers all Ports.

[66] The evidence of the Dampier Pilots is that negotiating with their employer on an individual basis has resulted in them having to accept terms and conditions of employment which they find unsatisfactory. The opportunity to negotiate collectively will provide them and those in the future bound by the Proposed Agreement the opportunity to increase their negotiating strength by acting collectively and having access to the protections contained in the FW Act to take industrial action in support of their claims.

[67] Taking into account the geographic, organisational and operational distinctions and giving those due weight having regard to all the other factors raised by the parties I am satisfied that the group of employees was fairly chosen.

Do a majority of Employees who will be covered by the Agreement want to bargain?

[68] The FWC may determine whether a majority of employees want to bargain using any method the FWC considers appropriate. The evidence to support such a finding may include employee petitions or surveys, secret ballots or written statements from employees. 41

[69] The FWC has the power to apply a point-in-time limitation to determine who are the persons employed for the purposes of determining whether a majority of employees want to bargain. 42

[70] The Application was filed on 20 May 2019.

[71] In accordance with the Directions the AMOU obtained a petition signed by the Dampier Pilots confirming their wish to commence bargaining. The Petition was signed by Messrs Smith, Rogers and Young on 28 May 2019 and filed with the FWC the following day. 43 Other than the Dampier Pilots, Mr Tett is the only pilot licenced to perform work at Dampier. Mr Tett’s licence is however restricted to highly manoeuvrable vessels. I note that the evidence is that within the current work scope that permits him to perform at pilotage for 80% of the types of vessels using the Port but that it may take him 12 months or more to obtain an unrestricted licence. I note that in any event he has also indicted a desire to enter into bargaining.44 I am satisfied that the majority of the pilots performing work at Dampier wish to bargain.

[72] The date on which the Application was filed is the date on which the AMOU asserted that a majority of employees wanted to bargain. I am satisfied that it is appropriate to assess the validity of that Application as at that date. As at that date Argonaut employed Messrs Tett, McDonald, Smith, Rogers and Young.

[73] The evidence before me is that Messrs Tett, Smith, Rogers and Young wish to commence bargaining. I am therefore satisfied that a majority of all marine pilots employed by Argonaut at that time wish to bargain.

[74] In the alternative if the appropriate date for the determination of whether a majority of pilots want to bargain is the date on which the petition evidencing the views of employees with respect to entering bargaining was provided to me then the number of employees required for a majority is unchanged.

[75] Messrs Silvester, Arnup and Mr Furtado had not commenced employment as at that date. Mr Silvester had been offered only conditional employment and his anticipated commencement date, in the event that he was ultimately engaged, was not before 1 June 2019. Mr Arnup’s offer of employment provided that he would not commence employment until 3 June 2019. Mr Furtado was not offered employment until 6 June 2019 and was not scheduled to commence employment until 15 July 2019.

[76] In any event Mr Furtado and Mr Arnup are not qualified marine pilots. They are currently undergoing training. While it has been held to be unreasonable to exclude casual employees from a group fairly chosen 45 I am not satisfied that in the circumstances Messrs Arnup and Furtado are analogous to casual employees. They cannot operate unsupervised and must perform their duties under the guidance and direction of a licensed pilot. Depending on the individuals work history and qualifications the training process may take from a few months to two years. It is not uncommon for trainees to withdraw from or fail their training so there is no certainty that Mr Furtado or Mr Arnup will eventually qualify as marine pilots.

Is it reasonable in the circumstances to make the Determination?

[77] The FWC must be satisfied that making a majority support determination is reasonable in all the circumstances. 46 Section 237 of the FW Act gives the FWC broad discretion to determine whether majority support exists in the workforce in deciding whether to make a determination.

[78] Making a determination does not itself require the employer to bargain nor does it determine the scope of bargaining or coverage of the proposed agreement. It triggers the notice time within the meaning of section 173(2) of the FW Act. This marks the commencement of the bargaining process and the requirement of the parties to comply with the good faith bargaining obligations set out in section 228 of the FW Act.

[79] I am satisfied that in all the circumstances of this Application that it is reasonable to make the Determination.

DEPUTY PRESIDENT

Appearances:

Mr Glen Walsh for the Applicant

Mr Alan Drake-Brockman for the Respondent

Hearing details:

2019

Perth

10 July

Final written submissions:

Applicant, 6 August 2019

Respondent, 20 August 2019

Printed by authority of the Commonwealth Government Printer

<PR710157>

 1   Two of Argonauts Directors are rostered to perform marine pilotage services from time to time. The parties agree that they are not employees for the purposes of this Application.

 2   Exhibit R1 at [4]-[5]

 3   Transcript at PN76

 4   Ibid

 5   Statement of Agreed Facts filed on 8 July 2019 at [1]-[2]

 6   Statement of Agreed Facts filed on 8 July 2019 at [3]-[4]

 7   Statement of Agreed Facts filed on 8 July 2019 at [5]

 8   Exhibit A2

 9   Statement of Agreed Facts filed on 8 July 2019 at [6]-[7]

 10   ResMed Ltd v Australian Manufacturing Workers’ Union [2015] FCA 360

 11   Exhibit A2

 12   [2009] FWAFB 668 at [25]

 13   Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (2009) 191 IR 124

 14   Statement of Agreed Facts filed on 8 July 2019 at [4], Exhibit A3

 15   Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd[2014] FWC 7123 citing Cimeco Pty Ltd v CFMEU [2012] 219 IR 139, Cotton on Group Services Pty Ltd v National Union of Workers[2014] FWCFB 8899,

 16   Two of Argonauts Directors are rostered to perform marine pilotage services from time to time. The parties agree that they are not employees for the purposes of this Application.

 17   Exhibit R1 at Attachment TSL7 and TSL8

 18   Exhibit R1 at Attachment TSL10

 19   Exhibit R1 at Attachments TSL10 - TSL13, Exhibit A5

 20   Exhibit R1 at Attachments TSL10 - TSL13, Exhibit A4, Transcript at PN108, PN122-125

 21   Exhibit R1 at Attachments TSL10 - TSL13, Exhibit A1

 22   Exhibit A2

 23   Exhibit R1 at Attachment TSL1 and TSL2

 24   Ibid

 25   Exhibit R1 at Attachment TSL3 and TSL4

 26   Respondent’s Closing Submissions filed on 20 August 2019 at [68]

 27   Exhibit R1 at Attachment TSL7

 28   Ibid

 29   Transcript at PN458-463

 30   Transcript at PN124-125, PN166, PN310

 31   Transcript at PN153-PN162, PN179-192, Exhibit A6, Statutory Declaration of Mr Tett filed 6 August 2019

 32   Transcript at PN81-82, PN205

 33   Exhibit R1 at Attachments TSL10 - TSL13, Exhibit A4, Transcript at PN108, PN122-125

 34   Transcript at PN341, Transcript at PN356 and PN427-434

 35   Transcript at PN148

 36   Transcript at PN36-PN37. This assertion was not challenged by Mr Drake Brockman. See also PN166-167, PN174

 37   Cimeco Pty Ltd v CFMEU [2012] 219 IR 139 at [20], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26]

 38   Cimeco at [21], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26]

 39   Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26]

 40   [2014] FWC 7123 citing Cimeco at [21]

 41   Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v Veolia Water Operations Pty Ltd[2015] FWC 2561

 42   Kantfield Pty Ltd t/a Martogg & Company v Australian Workers Union[2016] FWCFB 8372 at [35]

 43   Exhibit A2

 44   Transcript at PN153-PN162, PN179-192, Exhibit A6, Statutory Declaration of Mr Tett filed 6 August 2019

 45   Aerocare Flight Support Pty Ltd v TWU[2017] FWCFB 5826 at [36]

 46   Construction, Forestry, Mining and Energy Union v CBI Constructors Pty Ltd[2010] FWA 2164