[2015] FWC 773

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Australian Mines and Metal Association
v
Maritime Union of Australia
(B2014/786 & Ors)

COMMISSIONER CLOGHAN

PERTH, 21 JULY 2015

Applications for bargaining orders.

[1] The Australian Mines and Metals Association (AMMA) as bargaining representative for:

Mermaid Marine Vessel Operations Pty Ltd (Mermaid Marine) (B2014/786);

Swire Pacific Ship Management (Australia) Pty Ltd (Swire) (B2014/787);

Offshore Marine Services Pty Ltd (OMS) (B2014/788); and

Tidewater Marine Australia Pty Ltd (Tidewater) (B2014/795)

has made application to the Fair Work Commission (Commission) pursuant to s.229 of the Fair Work Act 2009 (FW Act) seeking bargaining orders against the Maritime Union of Australia (MUA). Mermaid Marine, Swire, OMS and Tidewater will be referred to collectively as the Vessel Operators. The MUA is the bargaining representative for employees seeking replacement enterprise agreements for the following agreements:

Mermaid Marine Vessel Operations Pty Ltd Integrating Racings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (B2014/786);

Swire Pacific Management (Australia) Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (B2014/787);

Offshore Marine Services Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (B2014/788); and

Tidewater Marine Australia Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (B2014/795).

Collectively these agreements will be referred to as the offshore oil and gas enterprise agreements.

[2] Collectively, applications B2014/786,787, 788 and 795 will be referred to as the Good Faith Bargaining Order applications (GFBO Applications).

[3] The orders sought by AMMA in the GFBO Applications are common and an example is as follows:

“1. The Maritime Union of Australia (MUA) shall:

(a) by close of business on [date], provide a written document to the Australian Mines and metals association (AMMA), asbargaining representative of Mermaid Marine Vessel Operations Pty Ltd (Company), which specifically retracts, corrects and apologises for each misinformation published to employees of the Company who are members of the MUA (MUA Constituents) including the MUA’s media release of 21 February 2014, Doug Heath’s communicate to Vessel Operator employees on 11 April 2014, Chris Cain’s communications to MUA members on 16 and 17 April 2014 and Will Tracey’s communicate to members on 27 April 2014 (collectively referred to as Original Communications); and
(b) by close of business on [date], forward by email to all MUA Constituents and recipients of the Original Communications; by notice on site notice boards; and by posting on the MUA’s Facebook and Twitter pages, a copy of the notice at (1)(a), in the terms approved by AMMA;
(c) by close of business on [date], provide evidence to the Fair Work commission and AMMA of compliance with Orders (1)(a) and (b).

2. The MUA and the Company shall, within 48 hours of each future negotiating meeting and conference, prepare a joint written communication to be sent to all Company employees, including MUA Constituents, who will be covered by the proposed agreement to replace the Mermaid Marine Vessel Operations Pty Ltd Integrated ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (Proposed Agreement) advising them of the outcome/s of the meeting or conference. Such communication shall include, but not be limited to, an update on which MUA claims have been agreed to or withdrawn.

3. In the event that the MUA and Company are unable to agree on the joint written communication within 48 hours as provided in Order 2 hereof, the MUA and the Company shall: (a) each prepare their own written communication on the outcome/s of the meeting or conference and (b) the MUA shall provide a copy of both communications to its members within 24 hours of receiving the Company’s communication.

4. The MUA, its officers, employees, agents and delegates shall not engage in, or be in any way involved in unduly influencing, including making any statement or demand, which has, or could reasonably be expected to have, the effect of discouraging Company employees from voting in favour of any Proposed Agreement or causing Company employees to vote against any proposed enterprise agreement in a manner contrary to the Fair Work Act and/or by virtue of that person’s membership of the MUA.

5. The MUA must, by no later than close of business on [date], provide confirmation in writing to AMMA of the MUA’s binding commitment to:

(a) an exhaustive list of all of the claims the MUA wishes to pursue against the Company in relation to the Proposed Agreement; and
(b) an exhaustive list of all claims which have previously been made against the Company but will henceforth no longer be pursued by the MUA.

6. The MUA shall, by close of business on [date], provide confirmation in writing to AMMA of:

(a) The MUA’s detailed reasons for the precise scope of the Proposed Agreement that the MUA is now seeking with the Company;
(b) Any purported justification for the MUA’s current scope claim including with reference to how the negotiations would proceed more fairly or efficiently if such scope was agreed and any evidence in support;
(c) if applicable, the specific details of any Gorgon RCA Allowances or Gorgon downstream specific claims the MUA is now seeking to include in or have resolved in order to reach an agreement with the Company; and
(d) the precise wording and placement in the Proposed Agreement with the Company of the clause on job security to which it is willing to agree.

7. The MUA and AMMA on behalf of the Company must also commit to and attend the Fair Work Commission negotiating conferences and report-back conferences before Commissioner Cloghan as set out in the [attached schedule] which shall be industry-wide rather than Company-specific conferences.

8. The MUA and the Company shall at each such meeting and conference referred to in Order 7 be represented by a person or persons with sufficient delegated decision making authority to meaningfully negotiate with the other bargaining representatives.

9. The MUA shall, by close of business on [date], provide a written undertaking to the Fair Work Commission that it will not seek to include in the Proposed Agreement with the Company:

(a) any term that would have the effect of requiring the Company to directly or indirectly discriminate against a person on the basis of their sex, age, race or nationality in breach of any anti-discrimination law;
(b) any term that pertains only to the relationship between the MUA, its members and/or potential members;
(c) any term that would have the effect of placing a restriction or prohibition on the Company’s use of contractors; and
(d) any term that would have the effect of rendering lawful what would otherwise be unprotected industrial action.

10. This matter will be listed for a report-back hearing at [time] on [date].”

[4] The GFBO Applications are the first of three matters which require my determination. The second matter is an application by AMMA that, until the determination of the GFBO Applications are made, the MUA must not:

“(i) give any notice under section 414 of the Fair Work Act 2009 (Cth) (the Act) to any of the companies represented by the Applicant in the GFBO Applications;

(ii) make an application for a protected action ballot order under section 437 of the Act seeking to ballot any employee of any of the companies represented by the Applicant in the GFBO Applications; and

(iii) seek an order extending the time during which protected industrial action authorised by a protected action ballot may be taken pursuant to section 459(3) of the Act affecting any employee of the companies represented by the Applicant in the GFBO Applications.”

[5] AMMA subsequently sought to amend its application by adding (iv) as follows:

“(iv) take any steps to progress the Maritime Union of Australia’s application for a protected action ballot order in matter B2014/158 without leave of the Commission, or any industrial action as described in the letter dated 18 July 2014 from the Maritime Union of Australia to Swire Pacific Ship Management (Australia Pty Ltd) entitled ‘Formal Notice of Intention to take Employee Claim Action’.”

[6] I shall refer to this application as the Interim Orders application.

[7] Separately, the Commission, with the consent of AMMA and the MUA, issued Interim Orders on 9 July 2014 and Correction Orders on 10 July 2014 with respect to each application:

PR552801 and PR553011 Correction Order (B2014/786);

PR552938 and PR553013 Correction Order (B2014/787);

PR552944 and PR553016 Correction Order (B2014/788); and

PR552946 (B2014/795).

[8] The Interim Orders of 9 July 2014, with the correction, are common to all Vessel Operators and an example is as follows:

“A. On 16 May 2014, the Australian Mines and Metals Association (AMMA) as bargaining representative for Mermaid Marine Vessels Operations Pty Ltd made application to the Fair Work Commission (Commission) seeking bargaining orders against the Maritime Union of Australia (MUA).

B. The parties agree and consent, pending final determination of application B2014/786, that with respect to bargaining subject to this application and pursuant to s.589(2) of the Fair Work Act 2009 (FW Act), the Commission orders that:

[1] The MUA must, by no later than close of business on 21 July 2014, clarify, identify and prioritise its claims by providing confirmation in writing to the AMMA, as bargaining representative of Mermaid Marine Vessel Operations Pty Ltd (Company), of the MUA’s binding commitment to a consolidated and exhaustive list setting out:

(a) the claims the MUA wishes to pursue against the Company in relation to the proposed agreement to replace the Mermaid Marine Vessel Operations Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (Proposed Agreement);

(b) which claim(s) or parts thereof are pursued only in relation to the Company and not in relation to any other employer in the offshore maritime industry. In doing so, the MUA must highlight the precise part(s) of the claim(s) which are unique to the Company;

(i) to the best of the MUA’s knowledge and belief, agreed in principle by the MUA and the Company;

(ii) to the best of the MUA’s knowledge and belief, not agreed in principle by the MUA and the Company; and

(d) a ranking of each of the MUA’s claims as of high, medium or low importance to the MUA.

In providing the list referred to in this Order 1, the MUA will provide an undertaking to the Company that it will not pursue any claims in bargaining for the Proposed Agreement other than those identified pursuant to Order 1(a).

[2] The MUA must, by no later than close of business on 25 July 2014 provide confirmation in writing to AMMA of the MUA’s justification for each matter listed pursuant to sub-order 1(c)(ii) with reference to any evidence on which the MUA relies in support and having regard to the objects of the FW Act.

[3] With reference to the clarification provided at Orders 1 and 2, the MUA, for the term of this Order, shall commit to honour all positions that are agreed in principle as at the date of this Order and the undertaking provided pursuant to Order 1 other than to the extent that the MUA provides written justification as to any proposed variation to a position that has been agreed in principle or the undertaking provided pursuant to Order 1, including with specific detail as to how such variation would enable the parties to move closer towards reaching an agreement on the terms of the Proposed Agreement.

[4] With reference to the clarification provided by the MUA pursuant to Orders 1 and 2, the Company shall respond by no later than close of business on 8 August 2014, subject to receipt of the MUA’s respective lists and other information in compliance with Orders 1 and 2, by confirming in writing:

(a) whether the Company agrees with or disputes the matters contained therein;

(b) whether the Company requires any further clarification or information from the MUA to understand or interpret the matters contained therein; and

(c) in respect of the matters identified by the MUA pursuant to order 1(c)(ii), if the Company disputes the matters identified, the justification for the Company disputing those matters, having regard to the objects of the FW Act.

[5] The MUA shall, by close of business on 25 July 2014, provide confirmation in writing to AMMA of:

(a) the MUA’s detailed reasons for the precise scope of the proposed agreement that the MUA is now seeking with the Company;

(b) any purported justification for the MUA’s current scope claim including with reference to how the negotiations would proceed more fairly or efficiently if such scope was agreed and any evidence in support;

(c) if applicable, the specific detail of any Gorgon RCA Allowances or Gorgon downstream specific claims the MUA is now seeking to include in or have resolved in order to reach an agreement with the Company; and

(d) the precise wording and placement in the proposed agreement with the Company of the clause on job security to which it is willing to agree.

[6] The MUA and AMMA on behalf of the Company must also commit to and attend a schedule of Commission negotiating conferences and report-back conferences before Commissioner Cloghan on no less than 5 separate occasions over a period of no more than two weeks commencing 12 August 2014, on dates as follows between the MUA and AMMA, which shall be industry-wide rather than Company-specific conferences.

● 12 August 2014 - 8:30 am to 4:30 pm
● 13 August 2014 - 8:30 am to 11:30 am
● 18 August 2014 - 8:30 am to 11:30 am
● 20 August 2014 - 8:30 am to 4:30 pm
● 21 August 2014 - 8:30 am to 4:30 pm

[7] The MUA and the Company shall at each such meeting and conference referred to in Order 6 be represented by a person or persons with sufficient delegated decision making authority to meaningfully negotiate with the other bargaining representatives.

[8] The MUA shall, by close of business on 21 July 2014, provide a written undertaking to the Commission that it will not seek to include in the proposed agreement with the Company:

(b) any term that pertains only to the relationship between the MUA, its members and/or potential members and that the MUA does not reasonably believe is a permitted matter;

(d) any term that would have the effect of rendering lawful what would otherwise be unprotected industrial action.

[9] The MUA shall not during the term of this Order pursue any claim that is substantially to the same effect as any claim which has, at some stage prior to this Order, been withdrawn in response to a concern raised by or on behalf of the Company that the claim is, or may be, a matter that is not permitted or is an unlawful term within the meaning of the FW Act.

[10] This matter will be listed for a report-back hearing on 12 August 2014 or parties at liberty to apply.

[11] This order is operative from 9 July 2014.”

[9] I shall refer collectively to these Interim Orders and Corrections Orders as Interim Orders of 9 July 2014.

[10] The third matter which requires my determination is an application by the MUA that the Interim Orders of 9 July 2014 be amended to change the dates for compliance at Orders [1] and [8] from 21 July 2014 to 25 July 2014. I shall refer to this matter as Variation to Interim Orders of 9 July 2014.

[11] In the proceedings, AMMA was represented by Mr A Power of Counsel and evidence given on behalf of AMMA by:

Mr C Muir, Managing Director, Tidewater;

Mr C Patman, Industrial Relations Consultant to Tidewater;

Mr B O’Brien, Employee Relations Manager, Mermaid Marine;

Mr M Wakelin, General Manager, Industrial Relations and Employee Relations, OMS;

Mr M Hearnden, Manager, Swire.

[12] The MUA was represented by Ms K Vernon of Counsel. Evidence on behalf of the MUA was given by Mr W Tracey, Assistant Secretary, Western Australian Branch.

[13] This is my interim decision and reasons for decision with respect to each of the three (3) applications.

RELEVANT BACKGROUND

[14] The parties agreed to 162 statements of facts 1. The relevant facts are:

the offshore oil and gas enterprise agreements have a nominal expiry date of 30 or 31 July 2013;

the Vessel Operators are vessel operators in the maritime offshore oil and gas industry in Australia;

each of the Vessel Operators has appointed AMMA as its bargaining representative for replacement enterprise agreements;

bargaining for replacement offshore oil and gas enterprise agreements commenced in December 2012 or January 2013;

since August 2013, the Vessel Operators and the MUA have participated in industry level negotiations in the Commission in addition to individual enterprise negotiations;

on 7 November 2013, AMMA on behalf of the Vessel Operators, put a draft agreement with two wage offers to the MUA which are referred to as “Option A” and “Option B”;

“Option B” initially expired on 25 November 2013. The offer was extended further to 11 December 2013, and subsequently, to 17 January 2014;

on 22 November 2013, the MUA indicated, for the first time, that the MUA wished to exclude the Gorgon Project from negotiations for replacement offshore oil and gas enterprise agreements;

on 16 January 2014, the MUA formally rejected “Option B” and provided a counter offer to AMMA;

on 26 March 2014, the MUA requested that industry level negotiations in the Commission be postponed until a meeting had taken place between senior executives of AMMA, vessel operators, the MUA National Secretary, and MUA Western Australian Branch representatives. The meeting took place on 4 April 2014. A further meeting took place on 8 April 2014 with a smaller group of representatives;

on 17 April 2014, AMMA forwarded to the MUA correspondence outlining its concerns with respect to bargaining. This correspondence is referred to as the First Concerns Letter. Further correspondence from AMMA to the MUA on 23 April 2014, also relates to bargaining concerns and is referred to as the Second Concerns Letter; and

the GFBO Applications were made on either 16 or 20 May 2014.

[15] This background is a fraction of what has occurred during the 18 months leading to the above three (3) matters. The industrial landscape of bargaining for replacement offshore oil and gas enterprise agreements, has been marked by extensive discussions, a significant number of proceedings in the Commission and acrimonious public comment.

RELEVANT LEGISLATIVE FRAMEWORK

[16] The object of the FW Act is contained in s.3 and the relevant provisions are:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) ...

(b) ...

(d) ...

(e) ...

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) ...”

[17] Part 2-4 of the FW Act deals with enterprise agreements. The objects of Part 2-4 of the FW Act, can be found in s.171 as follows:

“171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) makingbargaining orders; and

(ii) ...

(iii) ...”

[18] The requirement that bargaining representatives must comply with good faith bargaining requirements, is found at s.228 of the FW Act as follows:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

JURISDICTION OF THE COMMISSION TO DEAL WITH THE GFBO APPLICATIONS

[19] The prerequisite for making the GFBO Applications pursuant to s.229(4) of the FW Act was met by the First and Second Concerns Letters correspondence from the Vessel Operators to the MUA. AMMA considers that the MUA has not responded appropriately to its concerns. The MUA did not contend that the prerequisite to making the GFBO Applications had not been met, rather it opposed the applications on their merit.

AMMA SUBMISSION

[20] Cutting a long story short, AMMA submit that it is desirable to determine its GFBO Applications rather than the Commission to repeatedly deal with applications made pursuant to s.437 of the FW Act and notices issued pursuant to s.414 of the FW Act.

[21] AMMA submits that the substantive applications for GFB orders “raise a strongly arguable case that the MUA is not complying with the requirements of the Act (FW Act) in the conduct of the bargaining to which the industrial action apparently relates” 2.

[22] AMMA further submits that if it succeeds in establishing that the MUA has contravened the requirements in s.228 of the FW Act, “then a powerful inference can be drawn that the MUA is not genuinely trying to reach an agreement, and therefore is not in a position [to] take protected industrial action or obtain a protected action order under the Act” 3.

[23] Finally, AMMA states that the balance of convenience favours the granting of its Interim Orders applications. The granting of the Interim Orders should not unduly prejudice the MUA, and that “restricting the MUA from taking steps to organise or take protected industrial action during the period in which the Commission determines whether the MUA has met the bargaining requirements under the Act, is not inconsistent with the scheme of bargaining under the Act” 4.

MUA SUBMISSION

[24] Similarly, coming straight to the point, the MUA submission is that AMMA’s “true agenda in seeking the Interim Orders is clearly to curtail the Respondent’s [MUA] statutory entitlements, and insulate itself from protected industrial action. That [the Interim Orders applications] would impact on the bargaining dynamics and irrevocably alter the balance of the negotiations in favour of the Applicant [AMMA] by depriving the Respondent of its rights in the bargaining process” 5.

[25] The MUA submits that AMMA’s desirability to maintain the bargaining status quo is inconsistent with the scheme of the FW Act as set out in subsection 3(f).

[26] The MUA asserts that interim orders should have the effect of preserving the status quo “between the parties only, and should not alter the balance of the negotiations or impact on the bargaining dynamics” and rely upon NUW v CHEP[2009] FWA 202 at paragraph [48].

[27] The MUA contends also that “Interim Orders are not incidental to the bargaining process, and the making of such orders is ordinarily not required to preserve the integrity of the bargaining process and rely on Endeavour Coal Pty Ltd v APESMA [2012] FCA 764 at paragraph [70].

[28] The MUA submits that the Interim Orders of 9 July 2014 as set out in paragraph [8] are sufficient to maintain the status quo.

[29] The MUA observe that AMMA’s Interim Orders application bear no relation to the GFB orders sought in the substantive application, and cannot be granted as final relief pursuant to the GFBO Applications, in accordance with s.230 of the FW Act.

[30] Finally, the MUA assert that there is no evidence that the Vessel Operators would be disadvantaged in having to continue the bargaining process. The position of the parties in negotiations would remain the same - the MUA could issue notices pursuant to s.414 of the FW Act and AMMA would oppose any proposed industrial action by making application pursuant to s.418 of the FW Act.

GFBO APPLICATIONS

[31] A summary of AMMA’s grounds for making the GFBO Applications are as follows:

“5.1 The MUA is misrepresenting bargaining outcomes and process, in breach of s228(1)(e) of the [Fair Work] Act. In particular:

(a) The MUA has misrepresented the status of wage offers;
(b) The MUA has misrepresented the status of the foreign labour claim;
(c) The MUA has misrepresented the degree of movement or progress in the bargaining;
(d) The MUA has misrepresented the Vessel Operators’ conduct in the bargaining; and
(e) The MUA has sought to improperly influence the exercise of workplace rights.

5.2 The MUA is ‘gaming’ the scope issue and/or making agreement conditional on an extraneous issue in breach of s228(1)(e) of the [Fair Work] Act including by making the negotiation process for, and the resolution of terms and conditions of employment to be included in, the proposed agreements conditional on:

(a) Resolution of an MUA-declared “deadlock” concerning terms and conditions of employment of workers employed under the Gorgon Downstream Agreements; and
(b) Discussions with (and ultimately the views of) a third party.

5.3 The MUA is pursuing unlawful and/or non-permitted content in breach of s228(1)(e) of the [Fair Work] Act. In particular, the following provisions of the 15 January 2014 version of the MUA draft agreement are offensive:

(a) Clause 7 - Delegates Charter;
(b) Clause 9 - Consultative Committee;
(c) Clause 10 - Consultation;
(d) Clause 11 - Dispute Settlement Procedure;
(e) Clause 13 - Types of Employment;
(f) Clause 14 - Recruitment and Selection’
(g) Clause 15 - Disciplinary Process; and
(h) Clause 17 - Redundancy.

5.4 The MUA is ‘surface’ bargaining and seeking to frustrate and/or delay the bargaining process in breach of its obligations at s228(1)(c), (d) and (e) of the [Fair Work] Act. In particular:

(a) The MUA has reneged on its commitment to narrow or moderate its claims;
(b) The MUA has reneged on in principle agreements reached;
(c) The MUA has failed to give genuine consideration or responses to Vessel Operator proposals; and
(d) The MUA has frustrated the bargaining process by tactically causing delay including by its recent failures to attend and/or notify of intended non-attendance before the Fair work Commission (FWC) and by making its continued participation in the FWC negotiation process contingent on the matters described at 5.2 of this Application.”

GFBO APPLICATIONS: EVIDENCE

[32] The Commission received evidence from five (5) witnesses on behalf of AMMA and Mr Tracey for the MUA. In addition, the Commission received a large number of documents provided by both AMMA and the MUA.

[33] AMMA submit that the evidence should be considered in its totality.

[34] Section 228 of the FW Act requires a bargaining representative for a proposed enterprise agreement to meet good faith bargaining requirements. Section 228 of the FW Act does not provide for a bargaining representative to meet some, but not all, of its requirements. Compliance with the GFB requirements is direct and in the plural.

[35] Put differently, a bargaining representative is only bargaining in good faith if it is meeting all the conditions in paragraph 228(1)(a)-(f). This is consistent with paragraphs 950 and 951 of the Fair Work Bill 2008 Explanatory Memorandum, which reads:

“950 If a bargaining representative is not meeting the good faith bargaining requirements, another bargaining representative may seek an order from FWA to enforce compliance with the requirements...

951 The good faith bargaining requirements are generally self explanatory. The last requirement, “refraining from capricious or unfair conduct...” is intended to cover a broad range of conduct...”

[36] While s.228 of the FW Act lists the requirements that should be adhered to by bargaining representatives, it is not a matter which is easily verifiable. The GFB requirements may be “generally self-explanatory” but demonstrating non-compliance of a requirement, by a bargaining representative, is not verifiable in any conclusive way. For example, the MUA has not stated that it is not complying with the GFB requirements. Accordingly, it is necessary to examine the evidence and determine whether that evidence provides good reasons for coming to the conclusion that, on the balance of probabilities, the MUA was not bargaining in good faith. In short, can I reliably come to the conclusion that there is a sufficient relationship between the evidence, or actions of the MUA, and the conclusion or inference to be drawn, that the MUA was not complying with a GFB requirement, and consequently, not bargaining in good faith?

[37] Because of the all inclusive nature of s.228 of the FW Act, I intend to consider the evidence in its totality as submitted by AMMA.

[38] I now turn to each ground asserted by AMMA set out in paragraph [31]. For convenience, I have referred to the grounds under the following headings:

Misrepresentation;

Gaming the scope clause;

MUA pursuit of unlawful and/or non-permitted matters; and

Surface bargaining.

MISREPRESENTATION

[39] AMMA asserts that the MUA has misrepresented bargaining in the following areas.

Wage Offers

[40] There is no dispute between the parties that AMMA, on behalf of the Vessel Operators, put to the MUA a draft replacement enterprise agreement accompanied by two wage offers. I consider it necessary to set out in clear and unequivocal terms the offers made and given to the MUA.

“Option A

4 year EA from FWC approval

2.3% from FWC approval + 2.3% p/a thereafter

For the EA as provided on Friday 1 November (save for minor tidying up)

No timeframe on expiration of Option A”

“Option B

4 year EA from FWC approval

4.5% from FWC approval + 4% p/a thereafter

For the EA as provided on Friday 1 November (save for minor tidying up)

But:

If the MUA demand claims go back into the EA - then - the offer reverts to Option A; and

Option B terminates upon (i) rejection or (ii) 25/11/2013”

[41] The timeline for Option B was extended to 17 January 2014.

[42] On 16 January 2014, Mr Tracey advised Mr White of AMMA, that the MUA formally rejected the draft agreement and Option B offer 6. That should have been the end of AMMA’s Option B, including the wage offer.

[43] Notwithstanding this factual situation, the MUA forwarded an email on 20 February 2014 to its relevant members stating, in part:

“...Now that we have met that offer of 16.5% AMMA and the offshore employers are now unbelievably saying that the offer is no longer on the table...” 7

[44] Further, on 21 February 2014, the MUA issued a media statement which notified a journalist, that it was “forced into industrial action” against Tidewater involving a 48 hour stoppage of work, because “Tidewater had withdrawn the wage offer”.

[45] Firstly, the wage offer by Tidewater, and the other Vessel Operators, had ceased to exist on 16 January 2014 due to its rejection by the MUA. Secondly, “Option B” was not just a wage offer – it was tied to an acceptance of AMMA’s draft enterprise agreement of 1 November 2014 (with the provision for minor “tidying-up” amendments).

[46] Thirdly, the MUA on 10 March 2014, sent an email which, when referring to another matter, states:

“...Unfortunately this is another example of AMMA running fast and loose with the truth in respect of these ongoing negotiations for a new agreement in the offshore oil and gas industry. Just as they have done recently by putting and promoting in the media a wage offer and then withdrawing it when the MUA finally accepted that offer”. 8

[47] On 21 May 2014, a media release stated that the MUA had been forced into industrial action and attributing the following to Mr Tracey:

“We did the right thing by accepting the wage offer on the table and then they [AMMA] went and ripped it up.” 9

[48] Two days later, Mr Tracey is again quoted in Workplace Express making similar comments that Tidewater had withdrawn a wage offer which the MUA had accepted. 10

[49] Mr Tracey’s response to the above communication, and apparent inconsistency, is that “things had moved on” 11. However, Mr Tracey did not shy away from the facts, as illustrated in the following exchange in cross examination:

“One of the reasons for that was because that wage offer was contingent on the terms of a proposed agreement?---Yes.

That is, it was conditional?---Yes.

There was also a limited time for the acceptance of that offer, wasn't there?
---Certainly the terms in which it was put, yes.” 12

“So as at 16 January 2014, the conditional offer - that is, the option B conditional offer - was no longer on the table, was it?---Certainly, things had moved on by that stage to try and deal with, essentially, the document that was preventing us from picking up their option B offer.

I'll ask the same question again: by 16 January 2014, the option B conditional offer was no longer on the table, was it?---Option B as it stood, no.

This email of 20 February 2014 does not make any mention of that, does it?---No.” 13

“In this media release, there is no mention by you of the fact that the option B offer was conditional and limited as to time, is there?---Well, to be fair, things had moved significantly since the option B offer was there.” 14

“Is there any mention in this media release of the fact that the option B offer was conditional and limited as to time?---Well, there wouldn't be because we had moved on significantly since that time.” 15 (my emphasis)

[50] The MUA may have convinced itself that bargaining had “moved on”, but for the purposes of “Option B” wage offer, it had ceased to exist on 16 January 2014. “Option B” was conditional in both time and content. The MUA had unequivocally rejected the Vessel Operators’ Option B proposal.

[51] There is nothing remarkable in one party rejecting a proposal and continuing negotiations in enterprise bargaining; this is what the MUA and the Vessel Operators did. What is remarkable is for the MUA to reject a proposal which contained two elements (wages and draft conditions) and subsequently claim that the Vessel Operators had taken one element (wages) “off the table”, when the Union had agreed to accept that component of the proposal. Option B was conditional on the MUA accepting both components - wages and conditions. The MUA informed the Vessel Operators that it would not accept Option B in its entirety because of the content of the draft conditions - that was its prerogative. However, the MUA could not hold the Vessel Operators to the wages component - it had lapsed when the MUA rejected the entirety of Option B. This misrepresentation was all the more disturbing, as it became the public reason for the MUA proposing to take industrial action.

[52] I am satisfied on the evidence that the actions taken by the MUA was not a case of a misunderstanding; Mr Tracey is not an inexperienced union official. I am satisfied that the MUA strayed from reality and gave a false impression both to its members and the media as to the status of the Vessel Operators’ wage offer in Option B.

“Foreign labour” claim

[53] As part of Options A and B, the Vessel Operators provided to the MUA a draft replacement enterprise agreement dated 1 November 2013. The draft replacement enterprise agreement provided at subclauses 6A-3 to 6A-6, the Vessel Operators’ response to the MUA’s “foreign labour” claim. 16 While I have used the term “foreign labour”, it is not a nomenclature the Commission is endorsing in this Interim Decision.

[54] The proposed subclauses relating to foreign labour had been the subject of discussion in bargaining from August 2013 at an industry level in the Commission. For the MUA, it was a key claim.

[55] Mr Tracey’s oral evidence was as follows:

“The union's position on the subclauses, that is the wording of the subclauses, was that at that time it was acceptable?---Yes, we've reached consensus on it, yes.” 17

[56] By 15 January 2014, the MUA took the view that the “location of clause [was] not agreed” and proposed that subclauses 6A-3 to 6A-6 be moved to Clause 14 Recruitment and Selection 18. The wording of subclauses 6A-3 to 6A-6 did not change.

[57] On 9 April 2014, the MUA re-affirmed that it had reached agreement with AMMA on the wording of the “foreign labour” claim:

“(indistinct) indeed, when you attended an industry bargaining meeting, at which Mr Patman was present, on 9 April 2014, you re-affirmed that the wording of those sub-clauses was agreed by the union, did you not?---The wording? Yes.” 19.

[58] However, on 27 April 2014, the MUA sent an email to its relevant members which has the heading “Foreign Labour Clause not resolved” and states:

“...We want to create an obligation that has real teeth and substance. The employers say they are committed but refuse to do anything other than just say they intend and hope to support Australian jobs. Refusal to our clause means that they are actually opposed to committing to them in any real sense. They even refuse to allow a commitment to Australian jobs go under a heading of Job Security”. 20

[59] The email of 27 April 2014 referred to in paragraph [58] was forwarded, by another office holder of the MUA, with the words:

“It is essential that members read Will’s [Mr Tracey] comments about the foreign labour issue - as Will has set out in his report “foreign labour issue is not resolved”.” 21

[60] It is a fact that the Vessel Operators and the MUA had agreed to the wording of the MUA’s foreign labour claim. The only issue of dispute was where the term was to be located in the proposed replacement enterprise agreements.

[61] The MUA may have wanted a clause with more “teeth and substance”, however, the Union was aware that, in pursuing such a term, it may contain unlawful or non-permitted provisions. The MUA portrayed the Vessel Operators refusal to agree to its clause with “teeth and substance”, as its reason for not pursuing a term with “teeth and substance”, rather than the statutory difficulties with such a term.

[62] If the MUA pursued a claim which, in its view, had “teeth and substance”, it may have been unable to take protected industrial action as the content of such a clause may have been unlawful or non-permitted.

[63] On the evidence, I am satisfied that the MUA misrepresented the Vessel Operators’ position with respect to the “foreign labour” clause. The wording of the proposed clause had been agreed in October 2014. The location of the clause, or whether it had a separate heading, was not a matter of substantial controversy.

[64] Whatever the motive of the MUA was, I am satisfied that it misrepresented the Vessel Operators’ position in bargaining. I consider that the MUA projected to its members an image that did not truly reflect the factual position regarding the extent of which agreement had been reached, in relation to the foreign labour clause.

Movement or progress in bargaining

[65] AMMA submitted a number of instances in which it alleges the MUA had misrepresented either the progress, or conduct, of bargaining for the replacement enterprise agreements. Where these instances have been considered previously, I do not intend to repeat the detail, but set out the conclusions which I have already reached.

[66] I am satisfied that the MUA misrepresented the Vessel Operators’ position of allegedly withdrawing the “Option B” wage offer component.

[67] On the evidence, I am not satisfied that, when read in its entirety, the email of Mr Heath of 24 February 2014, falsely communicated to MUA members employed by Mermaid Marine, that it was seeking to deny employees the chance to have a replacement agreement until June 2015.

[68] Overall, on the evidence, I am satisfied that Mr Tracey misrepresented the situation that, “employers have been refusing to meet” in its newsletter of March 2014.

[69] I tend to agree with the AMMA, that the MUA was not treating its communication with members, during bargaining with proper care and attention on a number of occasions. I also agree that when the MUA accused AMMA of playing “fast and loose with the truth”, it was the MUA that was, in certain circumstances, playing “fast and loose with the truth”.

[70] I am not satisfied that the instances of where the MUA informed the Commission that significant progress or movement had been made in bargaining, that it was a misrepresenting progress of bargaining. The Commission has the ability to discern when progress in bargaining is being made, and when positioning is being engaged in.

[71] I am satisfied, on the evidence, that Mr Weber did not disclose “confidential and without prejudice” information, during bargaining. Further, it was wrong of the MUA to represent Mr Weber’s positon as stalling or procrastinating on a replacement enterprise agreement for over 16 months.

[72] As a whole, I am satisfied that, on a number of occasions, the MUA misrepresented the progress and status of bargaining.

conduct of the Employer in bargaining

[73] A close analysis of this category of misrepresentation, relates to a “catch all” of issues contained under other headings. The Applicant identifies again such matters as the “wages offer”, “foreign labour claim”, “Vessel Operator/employee communications”, “Vessel Operators refusing to meet”, “progress on bargaining” and Mr Weber’s actions. The matters have already been examined under the rubric of misrepresentation.

[74] The MUA and its officers are entitled to be difference of opinion and this occurs in the ordinary course of bargaining. However, there were instances, in the overall course of bargaining, that the MUA moved from opinion or analysis, to a judgement and representation of the conduct of AMMA, or the Vessel Operators.

[75] The gist of AMMA and the Vessel Operators’ submissions are that the MUA’s judgements and representations were not based on fact and misrepresented the actual state of affairs of bargaining at that time.

[76] I am satisfied that when the totality of the evidence is considered in relation to the individual complaints cited, some statements by the MUA were not based on a concrete reality. However, it should not be forgotten that the parties have embarked on a significant bargaining exercise. In the course of bargaining, bargaining representatives will deal with literally hundreds of issues; it is inevitable that some representatives will get it wrong on some occasions. Notwithstanding this potential for error, the MUA, beyond the confines of the bargaining table, expressed publicly, and to its members, judgements concerning AMMA and the Vessel Operators’ conduct, which were not representative of the facts – they were, on a number of occasions, a misrepresentation of the facts.

The MUA has sought to improperly influence the exercise of workplace rights of its members

[77] AMMA submit that the MUA, in communication with some of its members, had sought to improperly influence those members in the exercise of their respective workplace rights. In doing so, AMMA contend that the MUA has engaged in capricious or unfair conduct that undermines freedom of association and collective bargaining. AMMA rely on two specific pieces of communication from the MUA.

[78] The first communication is from Mr D Health, Assistant Secretary of the Western Australian Branch which reads:

“Only 1% of members (ie; 1 member) opposed any form of Protected Action. The individual who opposed all forms of Protected Action is the same bloke who regularly sends Mermaid management emails lagging on his comrades. He is the same bloke who also emails the bosses telling them that seafarers are overpaid. I don’t see this bloke handing back his pay cheque each week, however.

The outcome endorsing Protected Action is a fantastic outcome for the MUA membership and is a credit to all members (bar one).” 22 (my emphasis).

[79] The communication is Mr Heath’s commentary on the outcome of a protected action ballot. The voters “have spoken” and Mr Heath’s thoughts are really irrelevant.

[80] The only relevant narrative of interest is that an office holder of the Union would take upon himself to “bag” a MUA member. Further, Mr Heath appears to know how a particular member voted in what is supposedly a secret ballot process. With respect to the latter matter, it may have been pure speculation on behalf of Mr Heath.

[81] While I tend to agree with AMMA that the email is inappropriate, I am unable to conclude that the MUA has “misrepresented the rights of its members to freely, and confidentially, vote as they see fit in a protected action ballot and...undermine freedom of association and collective bargaining”. 23 The MUA member exercised his workplace right as he saw fit and Mr Heath’s views occurred after the event.

[82] In my view, AMMA has given too much credibility to Mr Heath’s florid post ballot communication.

[83] However, the second communication from Mr Tracey falls into a different category. On 27 April 2014, Mr Tracey forwarded to MUA members of the Vessel Operators the following:

“…Some of the offshore companies have decided to directly contact MUA members working for them and in our experience when companies do this in the manner they have, it usually means that they are flagging that they are about to offer a NON UNION Agreement to their employees…

…Past experience reinforces that the direct contact, the emails themselves and some of their content may mean that some employers may be about to offer non-union agreements…

It is absolutely critical that all members remain vigilant if an offer of a non-union agreement comes out in the immediate future…

As soon as they hit the table [alleged non-union agreement] we will need immediate contact from delegates and members with a copy of the non-union agreement MUA members will be expected to vote on. This is not about panicking and definitely not about taking substandard offers because we have to get it right. This EA has never been about money but instead about job security, qualifications, protecting the jobs of MUA members and fixing up anomalies in the current agreement that have been giving everyone the shits day in and day out.” 24

[84] Firstly, there is no impediment to employers directly communicating with their employees during collective bargaining.

[85] Second, it is quite apparent that Mr Tracey is using a “straw man” argument. Mr Tracey’s argument is that because an employer is directly communicating with its employees, “it usually [means] that they are about to offer a non-union agreement to their employees”. Having set up the argument - that employer/employee communication usually means a non-union agreement - the MUA proceed to advise its members not to panic and accept “substandard offers”. The argument was self-serving and had no basis in the employer/employee communication.

[86] Mr Tracey misrepresented the Vessel Operators’ position regarding communication with its employees, and then proceeded to discredit that alleged position.

[87] The Commission experiences competing views of employee organisations in bargaining for replacement enterprise agreements. Some unions argue that, as a bargaining representative, it is their obligation to advise their members how to vote on a proposed enterprise agreement. Other unions take the view that, while the union may have reached agreement with the employer, it is a matter for the employees to cast their vote, and the union does not advise its members one way or another, on how to vote.

[88] Objectively, it is plain that Mr Tracey is attempting to influence MUA members regarding an alleged non-union agreement. The question is whether he is improperly influencing MUA members in the exercise of their workplace rights.

[89] I am not inclined to agree with AMMA that Mr Tracey improperly influenced employees in the exercise of their workplace rights. At the time of the email of 27 April 2014, the employees were not exercising any workplace rights. The email was setting out the MUA’s position, as a bargaining representative, should those employees, in the future, have to exercise a workplace right when voting, on what the MUA describe as a “non-union” agreement.

[90] However, I am satisfied that the MUA did misrepresent the Vessel Operators’ position regarding an alleged “non-union agreement”.

GAMING THE SCOPE CLAUSE

[91] Bargaining for replacement offshore oil and gas enterprise agreements commenced in December 2012 or January 2013.

[92] In November 2013, the MUA advised the Vessel Operators specifically, and generally, that the work to which Gorgon downstream agreements apply, are to be excluded from the scope of bargaining for the proposed replacement offshore oil and gas enterprise agreements.

[93] AMMA submits that the narrowing of the scope clause is “posturing” by the MUA. According to AMMA, posturing by the MUA demonstrates that the Union is not refraining from capricious or unfair conduct, and as such, undermines collective bargaining.

[94] The change in the MUA’s scope clause was made nearly a year after bargaining commenced. The change in the scope clause made by the MUA was, according to AMMA, for the purposes of avoiding the consequences of s.438(1) of the FW Act.

[95] The scope issue, albeit pursuant to the provisions of s.437 of the FW Act, has been the subject of Decisions of the Full Bench of the Commission in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia [2014] FWCFB 1317 (Mermaid Marine)and The Maritime Union of Australia v Swire Pacific Management (Australia) Pty Ltd (Swire).

[96] In Swire, the Full Bench found that:

the mere fact that the MUA had changed its position on the scope clause [even though it may have been agreed in principle before] is not, of itself, indicative of the MUA not genuinely trying to reach agreement [69];

there is no provision in the FW Act precluding the MUA from changing its position on the scope of bargaining. Further, there is nothing to preclude the MUA in changing its position on scope for strategic reasons, such as accessing protected industrial action. A change on scope is not demonstrative of a sound basis to conclude that the MUA is not genuinely trying to reach agreement, without probative evidence [73]; and

a change in position on scope is reflective of the dynamics of bargaining [74].

[97] AMMA has made a number of assertions as to why the MUA has narrowed the scope clause in bargaining to replace the offshore oil and gas agreements. AMMA asserts that the primary reason is the ability of the MUA to ultimately access protected industrial action.

[98] AMMA may well be correct that the MUA is posturing and the real reasons for narrowing the scope clause, is to enable the Union to take protected industrial action. A bargaining representative can, and very often, changes its position in the course of bargaining. However, I apprehend AMMA’s “gripe” regarding the change in scope, is not with the MUA’s objective, but with the implausible post reasons given by the MUA.

[99] Mermaid Marine and Swire left open the opportunity for probative evidence to reach a different conclusion that the MUA was not genuinely trying to reach agreement. However, I am not satisfied that the evidence in this application conclusively demonstrates that the MUA is exhibiting capricious or unfair conduct, which undermines collective bargaining. Put simply, while I am not entirely persuaded by the MUA’s evidence of why it narrowed the scope clause, I am not prepared to conclusively draw an adverse inference relating to the GFB requirements in the FW Act as sought by AMMA.

[100] I now turn to AMMA’s assertion that the MUA is, and has always been, bargaining concurrently for terms and conditions of employment for employees, covered by the offshore oil and gas agreements and the offshore work on the downstream part of the Gorgon Project.

[101] The “foundation” to this assertion relies upon the initial proposed scope clause for the offshore oil and gas enterprise agreement only which included overlapping coverage.

[102] AMMA asserts that, if there is evidence of a party to bargaining having an “extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act”, it is difficult to conceive that that party is genuinely trying to reach agreement. In support of this contention, AMMA refers to the majority of the Full Bench in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963, at paragraph [63].

[103] The “test” in J.J. Richards of “genuinely trying to reach agreement” is not the same as in the GFBO Application. However, AMMA urges the Commission to find a positive relationship with the “test” of bargaining in good faith. I am inclined to agree. Clearly, while the concepts of genuinely trying to reach agreement and bargaining in good faith are different, it is difficult to reconcile that a party which is not meeting the mandatory requirements to bargaining in good faith, is also genuinely trying to reach agreement.

[104] AMMA asserts that the MUA’s real intentions were made clear, “when the Respondent made reaching agreement on a proposed replacement offshore oil and gas enterprise agreement conditional, and contingent, upon discussions with third parties external to the bargaining representatives regarding the conditions of employment for Gorgon downstream workers” 25. Making such an agreement is, according to AMMA, unfair conduct which undermines collective bargaining.

[105] The parties agree that the MUA requested industry level negotiations in the Commission be postponed until a meeting took place between senior executives of AMMA, Vessel Operators and MUA representatives. The initial meeting took place on 4 April 2014. A further meeting took place on 8 April 2014, with a smaller group.

[106] On 11 April 2014, both Mr Weber of Mermaid Marine and Mr Muir of Tidewater sought clarification of the MUA’s scope position. 26

[107] Mr Cain, the WA Branch Secretary of the MUA, responded on 15 April 2014 under the heading of “the MUA’s scope claim” as follows:

“As you are aware, one of the key claims that is preventing an industry settlement (as is preferred by the employers) is its claim to exclude the downstream component of the Gorgon project from the scope of the offshore agreement.
…
As discussed at the meetings, the MUA remains of the view that the only solution to its scope claim is to exclude the downstream component of the Gorgon project from the scope of the offshore agreement, but as indicated we are willing to give genuine consideration to any alternative solution that the employers may develop in consultation with the necessary stakeholders…
…
Without the referral of the outstanding matters to that forum of key decision makers being the smaller group and Chevron (where discussions relate to the scope claim), we are concerned that the prospect of successful negotiations are significantly diminished and question the utility of further industry negotiations.” 27

[108] On 17 April 2014, AMMA stated in response:

“Firstly, the MUA has asserted that it will not continue negotiations unless and until the smaller group of Vessel Operator CEOs could hold discussions with Chevron to explore resolution of the Gorgon/scope issue. Further, that only once those discussions have occurred, will the MUA be in a position to refer a reduced list of outstanding matters to the FWC-chaired negotiations.

The Vessel Operators have made good their understanding to commence discussions with Chevron and KJV about your claim for employees engaged on the downstream part of the Gorgon Project. The Vessel Operators reiterate that they did not and will not agree to defer or delay the negotiation process while discussions on that issue are had.” 28

[109] The MUA’s response of 2 May 2014, addressed the scope issue in the following way:

“The MUA has not said that it will not continue negotiations unless and until the smaller group of Vessel Operators CEOs hold discussions with Chevron to explore resolution of the MUA’s scope claim. Nor has the MUA indicated that it has some predetermined reduced list of outstanding claims to produce on that occurring…

This proposed way forward, which we understand to be mutually agreed and which was documented in minutes of the 3 April 2014 meeting prepared by AMMA, did not make the continuation of bargaining conditional on discussions or resolutions with a third party. Discussions with Chevron were only suggested to response to a comment from one of the Vessel Operator CEOs that he thought he could find a resolution to our scope claim…It appeared to be common ground between the parties that the scope claim is a barrier to reaching agreement and the inclusion of Chevron in discussions about the claim appeared to be a logical way forward. We understood therefore that the Vessel Operators wanted to hold those preliminary discussions with Chevron to find out whether they could meet our scope claim and thereby be able to come to the table with something that may assist in progressing discussions. As it appears now that this was not in fact the Vessel Operators proposal and, as was discussed at the FWC conference on 28 April 2014, we are agreeable to continuing negotiations pending a fuller response to our scope claim informed by discussions with Chevron.” 29

[110] Although there is a diversity of evidence, it is common ground that the Vessel Operators had discussions with Chevron. However, the essential element is whether, as asserted by AMMA, that objectively the MUA would not continue bargaining on the offshore oil and gas enterprise agreements without the presence and input of a third party - Chevron.

[111] It is true that Mr Cain did not give evidence in proceedings but the contemporaneous documentary evidence of Mr Cain is that the MUA would give consideration to “any alternative solution that the employers may develop”. Mr Cain also states that, “without reference to a smaller group of representatives and Chevron…we are concerned that the prospect of successful negotiations are significantly dismissed”. Objectively, I am unable to come to the conclusion that the MUA made it unambiguously clear that it would not continue bargaining until Chevron and KJV were involved in bargaining.

[112] In the circumstances, it is entirely possible that the MUA saw that discussions with Chevron and/or KJV as a “solution” to the scope issue. However, on 2 May 2014, the MUA indicated to AMMA that it was prepared to continue discussions “pending a fuller response to our scope claim informed by [AMMA’s] discussions with Chevron”.

[113] The dilemma faced by the Commission regarding the competing view of the MUA’s real intention is succinctly summarised in its outline of closing submissions when it states at paragraph [122]: “A further difficulty with the Respondent’s [MUA] refusal to acknowledge that it is and always has been bargaining concurrently for terms and conditions of employment for employees working for vessel operators…on both offshore work generally and offshore work on the downstream part of the Gorgon project” (my emphasis).

[114] AMMA is right. The MUA has refused to acknowledge that this is what its purpose is.

[115] In the absence of any acknowledgement by the MUA, AMMA is seeking, for the Commission to attribute, on the basis of the MUA’s conduct, that it has an extraneous intention, object or purpose, beyond the making of offshore oil and gas enterprise agreements.

[116] I do not consider that AMMA is going off on a frolic in relation to this matter. There are two interpretations of the MUA’s conduct. However, in view of the fact that the GFBO applications were made 14 days after the last correspondence from the MUA on this issue, and the expired time since then, I consider it unnecessary for the Commission to come to a final view on the matter of whether the MUA is meeting the GFB requirements.

MUA PURSUING UNLAWFUL AND/OR NON-PERMITTED MATTERS

[117] AMMA alleges that, at the time the GFB Applicatons were made, the MUA was pursuing unlawful and/or non-permitted content in breach of s.228(1)(e) of the FW Act,. In particular, the following provisions of the 15 January 2014 version of the proposed replacement agreement are either unlawful or non-permitted:

Clause 7 - Delegates Charter

Clause 9 - Consultative Committee

Clause 10 - Consultation

Clause 11 - Dispute Settlement Procedure

Clause 13 - Types of Employment

Clause 14 - Recruitment and Selection

Clause 15 - Disciplinary Process

Clause 17 - Redundancy.

[118] In its First Letter of Concerns, AMMA refer to six (6) particular claims which it contends are unlawful or non-permitted. The MUA responded on 2 May 2014. In summary, the MUA’s response is either it does not accept the claim is either unlawful or non-permitted or seek further particulars. Importantly, the MUA state that it is only advancing claims that are lawful and permitted 30.

[119] AMMA submit that the burden is upon the MUA to demonstrate that it is only pursing lawful and permitted matters. In addition, AMMA submit that it is insufficient for the MUA to state that it is only pursuing lawful and permitted matters and that it will withdraw or revise inadvertent unlawful or non-permitted matters 31.

[120] The Commission has received documentation with allegations regarding either unlawful or non-permitted matters. It also has a response from the MUA that seeks particulars of the allegations.

[121] After the GFBO Applications were filed in the Commission, the MUA provided a further consolidated draft “General Agreements” on 10 June 2014 and 11 June 2014. The General Agreements related to Tidewater and Mermaid Marine 32. Both General Agreements are accompanied by emails stating that the MUA is seeking legal advice on alleged non-permitted or unlawful content as outlined in AMMA’s correspondence of 23 May 2014. Mr Tracey gave evidence that the most fulsome particulars on why AMMA considered some MUA draft clauses were non-permitted or unlawful, were provided as part of the GFBO Applications33.

[122] Mr Tracey gave evidence that the MUA has not deliberately sought to advance claims which are either unlawful or non-permitted.

[123] Mr Tracey’s written evidence was not challenged in cross examination.

[124] In the totality of the evidence, I am reluctant to come to the view that the MUA is pressing to include unlawful or non-permitted matters claims in offshore oil and gas enterprise agreements.

“SURFACE” BARGAINING

[125] AMMA alleges the MUA is “surface” bargaining and seeking to frustrate and/or delay the bargaining process in breach of its obligations at subsections 228(1)(c), (d) and (e) of the FW Act. In particular, that the MUA has:

reneged on its commitment to narrow or moderate its claims;

reneged on “in principle” agreements reached;

failed to give genuine consideration or responses to the Employer and vessel operator proposals; and

frustrated the bargaining process by tactically causing delays and a consequence of recent failures to attend and/or notify of intended non-attendance before the Commission and by making its continued participation in the Commission industry-wide negotiations contingent on resolution of the “deadlock” in the Gorgon Downstream agreements and discussions with (and ultimately reviews of) a third party.

[126] AMMA asserts that an evaluation of aspects of the MUA’s conduct during bargaining demonstrates that it has engaged in “surface bargaining”. Surface bargaining in the sense that the MUA has maintained an outward appearance of a willingness to conclude replacement enterprise agreements, while undertaking a course of conduct inconsistent with that objective.

[127] The course of conduct, it is asserted, is inconsistent with a desire to conclude a replacement agreement included:

key decision makers and negotiators failing to attend or participate in bargaining;

seeking to continually change negotiation forums;

consistently engaging in tactics in an attempt to delay, derail and/or protract negotiations;

reneging on in-principle agreements reached between the parties;

reneging on the commitment made to narrow or “package” its claims; and

failing to give genuine consideration to the proposal put by or on behalf of the Vessel Operators and failing to give proper reasons for its responses.

[128] AMMA relied upon the witness evidence of Messrs O’Brien, Wakelin, Patman and Hearnden and a myriad of documents.

[129] In its closing submission, the MUA characterises AMMA’s allegation as “no more than the Respondent [MUA] has changed its position on a number of claims during the course of bargaining, and the Applicant is frustrated by the lack of progress over the last 18 months” 34. Further, that the FW Act does not eschew any definition of bargaining.

[130] The MUA rely upon AMWU v H J Heinz Company Australia (Echuca Site) (Heinz) [2009] FWA 322, which it says is applicable, although the matter related to an application pursuant to s.437 of the FW Act.

[131] In Heinz, the AMWU served a log of claims on the employer. Less than two (2) months later, Heinz asserted that the AMWU was not genuinely trying to reach agreement. The grounds for such an assertion was essentially because the AMWU had provided draft clauses not contained in the log of claims and it was not giving genuine consideration to the employer’s proposal regarding working hours.

[132] The circumstances in the GFBO Applications are that the parties had been bargaining, at the time, for approximately 18 months and there had been over 100 meetings.

[133] Further, with few exceptions, the witness evidence of Messrs O’Brien, Wakelin and Patman largely remained undisturbed.

[134] Mr Tracey’s written witness evidence is that the MUA undertook to narrow or package its key claims and did not 35. Irrespective of this situation, the MUA contend that “since a bargaining representative cannot be required to make concessions pursuant to s.228(2) of the FW Act, there can be no breach of s.228(1) of the FW Act”. While that may be the case, that does not resolve the issue of the MUA not fulfilling its commitment to the other bargaining representative to narrow or package its key claims.

[135] “Packaging” is a common method by which parties indicate a desire to conclude an agreement. After 18 months of bargaining, it is not uncommon for the parties to put packages to one another in a search for a common solution. If, as the MUA’s closing submission infers, that the Union’s refusal to narrow down or package its claims is for unspecified “strategic reasons”, it does question whether the MUA is genuinely trying to conclude replacement agreements.

[136] I have repeatedly stated to the parties that the Commission is “full of enterprise agreements” – it is not “full of non-agreements”.

[137] The “making” of an enterprise agreement is at the “heart” of Part 2-4 of the FW Act.

[138] At some point, the activities of a party accessing the various provisions of Part 2-4 of the FW Act, must intersect with the making of an enterprise agreement.

[139] While the MUA is correct, the FW Act does not have a definition of bargaining, that is not a satisfactory response to bargaining conduct.

[140] It is inconceivable that Parliament created legislation enabling protected industrial action and other rights as an end in itself. These entitlements are accessible as part of the making an enterprise agreement. After 18 months and having not reached agreement, it could be said that the MUA is very patient. Alternatively, it could easily be said that the MUA has no intention of reaching agreement on replacement enterprise agreements, until a time of its choosing.

[141] After 18 months of bargaining without reaching agreement, AMMA contend that good faith bargaining has been exhausted. The Vessel Operators have reached a state of paralysis in relation to their employees.

[142] The GFBO Application appears to demonstrate that the parties have arrived at the point of incompatibility between hard bargaining and the making of an enterprise agreement.

[143] For reasons set out elsewhere, it is not necessary, at this time, to come to a conclusive view on whether the MUA has been surface bargaining.

INTERIM ORDERS APPLICATION

[144] This is the second matter requiring my determination.

[145] AMMA asserts that the Interim Orders are necessary to maintain the status quo pending the determination of the GFBO application.

[146] AMMA submits that its evidence with respect the GFBO Applications raise a strongly arguable case that the MUA is not complying with the GFB requirements of the FW Act.

[147] Should AMMA, on its evidence, succeed in establishing that the MUA is not complying with the GFB requirements in the FW Act, AMMA submits that “a powerful inference can be drawn that the MUA s not genuinely trying to reach an agreement, and therefore not in a position to take protected industrial action or obtain a protected action ballot order” 36.

[148] In light of the above submissions, AMMA submits that restricting the MUA from taking steps to organise, or take protected industrial action, is not inconsistent with the scheme of bargaining under the FW Act and a “sensible step” in the efficient conduct of proceedings.

[149] In short, AMMA put “arguable case” and “balance of convenience” submissions.

[150] The MUA characterise the Interim Orders as injunctive in their terms.

[151] Similar to its submission with respect to the GFBO Applications, the MUA submit that AMMA’s “true agenda” is to curtail or deprive the MUA of its statutory entitlement relating to protected industrial action as part of the bargaining process.

[152] Notwithstanding the submission by both parties, I am not aware that the MUA, since AMMA’s application for Interim Orders, has made an application of the kind sought in the Interim Orders. If I am wrong in this assumption, I should be corrected.

[153] As a generalisation, I think it can be said that AMMA’s application and reasons for making the application for Interim Order, have a historical explanation. The parties had been in an almost constant bargaining conflict for 12 months. The GFBO and Interim Orders applications were intended as a “circuit breaker” to avoid the constant stream of applications to the Commission related to industrial action.

[154] In a historical context of alleged misrepresentation, improper influence of workplace rights, “gaming”, “surface” bargaining and media brawling, the GFBO and Interim Orders applications were seen as a solution.

[155] Whether the Interim Orders application was a “status quo”, “convenient” or “restrictive” solution, does not matter because it has been overtaken by time. If I am correct that none of the matters cited in the Interim Orders have been pursued by the MUA since AMMA has made the GFBO Applications, there seems no utility in considering the issue further.

[156] It would appear that the MUA did not pursue the matters in the Interim Orders application because of a matter being pursued in the Federal Court of Australia; a matter which relates to the third issue for my determination. I now turn to that matter.

VARIATION TO INTERIM ORDERS OF 9 JULY 2014

[157] On 9 July 2014, the Commission issued Interim Orders of 9 July 2014, with the agreement and consent of AMMA and the MUA, pursuant to s.589(2) of the FW Act.

[158] Correction Orders were issued on 10 July 2014, with respect to applications B2014/786, B2014/787 and B2014/788 but have no relevance to the issue for my determination.

[159] The MUA did not provide to AMMA, its legal representatives or the Vessel Operators, the material required by the due date in compliance with paragraphs (a)-(d) in Orders [1] and [8] as set out earlier in paragraph [8] above.

[160] On 22 July 2014, AMMA raised with the MUA its non-compliance with Interim Orders [1] and [8] made on 9 July 2014.

[161] Subsequently, on the same day (22 July 2014), the MUA provided documentation which AMMA describes as purported compliance with Interim Orders [1] and [8] made on 9 July 2014.

[162] On 25 July 2014, the MUA provided further documentation to AMMA in compliance with Interim Orders [1] and [8] made on 9 July 2014. AMMA describes this documentation as purported compliance with the Interim Orders issued on 9 July 2014.

[163] During the period 9-21 July 2014, the MUA gave formal notice to take employee claim action pursuant to s.414(2) of the FW Act. The employee claim action was to be in the form of two (2) 24 hour stoppages of work (with particular exception) commencing at 12:01 am on 25 and 26 July 2014.

[164] On 22 July 2014, Swire made application C2014/5523 to the Commission for an order pursuant to s.418 of the FW Act, stopping or preventing the alleged unprotected industrial action.

[165] The application was the subject of a hearing on 23 and 24 July 2014.

[166] On 24 July 2014, the MUA withdrew its notice of employee claim action, and consequently, the Commission dismissed the application [2014] FWC 4961.

[167] On 27 July 2014, the MUA made a request to the Commission to retrospectively vary the due date for compliance with Orders [1] and [8] issued by the Commission on 9 July 2014.

[168] In its request to retrospectively amend the date of compliance with Interim Orders [1] and [8] of 9 July 2014, the MUA acknowledge that, by withdrawing its employee claim action in application C2014/5523, Swire’s contention that the MUA had contravened an order made by the Commission, and the consequences of such a contravention, was not finally determined.

[169] On or about 14 August 2014, AMMA and the Vessel Operators filed an application (WAD 257 of 2014) in the Federal Court of Australia (FCA) seeking a declaration from the FCA that the MUA had contravened the Interim Orders of 9 July 2014, and as a consequence, any industrial action organised or taken in support or advancing its claims for the replacement offshore oil and gas enterprise agreements, would not be protected industrial action.

[170] On 3 July 2015, Barker J delivered his judgement in WAD 257 of 2014. At paragraph 176 of the Judgement, Barker J determined not to make the declaration sought by AMMA and the Vessel Operators in WAD 257 of 2014.

[171] Further, at paragraph [187] of Justice Barker’s Judgement, he observes that “senior counsel for the MUA told the Court that [retrospective extension of the compliance period] had been considered but not pursued, accepting that probably such a course is not available…”

[172] Having considered Justice Barker’s Judgement and his Honour’s observation concerning the retrospective application to change the dates for compliance with Orders [1] and [8], there appears to be no utility in considering this matter further.

[173] In not granting the application by the MUA to retrospectively change the dates for compliance with Interim Orders [1] and [8] of 9 July 2014, I make no determination on the jurisdiction of the MUA to make such an application.

CONCLUSION

[174] After 18 months of bargaining, the ordinary person at the “front bar” would have expected significant progress towards, if not agreement, on replacement agreements to the offshore oil and gas enterprise agreement.

[175] AMMA submits that after 18 months of negotiations, there has been little or no real progress.

[176] The MUA acknowledge that the bargaining period has been lengthy and progress has been slow. The MUA state that this is not unusual. Simply put, the MUA has put claims to the Vessel Operators which some have not been accepted, and similarly, the Vessel Operators have made counter proposals which have not been acceptable to the MUA.

[177] The MUA assert neither party is under any obligation to accept any proposals put by the other side. The MUA say that this all accords with the provisions of the FW Act.

[178] Finally, the MUA submit that the conduct complained of has either not occurred, or if it has occurred, it cannot be characterised as capricious or unfair. Further, even if the alleged conduct can be characterised as capricious or unfair, it has not undermined, or is undermining, collective bargaining.

[179] The submissions and evidence in these proceedings have been wide ranging and involve a significant element of perception. I have avoided speculation and arrive at conclusions which I consider to be safe on the facts. I have not attempted to address and resolve every disputed matter which arose in proceedings. I have sought to consider the main issues in contention.

[180] Conflict which was played out in bargaining was subsequently and extensively played out in formal adversarial processes of the Commission, and in the courts.

[181] Industrial disputes are not discrete events. Industrial disputes are a product of history, the pursuit of what parties see as their rights, context, content, economy/market, expectations, disappointments, people and many other factors. Those that arrive at the Commission, usually have survived an eventful journal by sea.

[182] Much of the content in the Interim Orders of 9 July 2014 are similar to that sought by AMMA in its draft orders sought pursuant to s.230 of the FW Act, in the GFBO Applications.

[183] The parties have now been “tied up” in “harbour” for the past 10 months awaiting the judgement in the FCA. During this period, both parties appear to have complied with the Interim Orders made on 9 July 2014.

[184] The MUA’s conduct referred to by AMMA in the GFBO Applications occurred 18 months or longer ago. I am unaware of what bargaining has eventuated (if any) between the parties since compliance with the Interim Orders of 9 July 2014.

[185] The Interim Orders of 9 July 2014 have, hopefully, narrowed down the differences between the parties. Until and unless the matters in bargaining are identified, clarified and prioritised, bargaining will be without a structure to progress. The credibility and viability of collective bargaining depends on a common intention of the parties; for this to happen there has to be a disclosure in detail. It is expected that the Interim Orders of 9 July 2014, and the time since that date, have focussed the parties on the ability to fashion an outcome.

[186] In view of the lapse of time regarding the MUA conduct complained of by AMMA, presumed compliance with the Interim Orders of 9 July 2014 and the hiatus since the FCA application, I have not come to a conclusive view that it would be reasonable in all the circumstances to make orders, in accordance with paragraph 230(1)(c) of the FW Act with respect to the GFBO Applications.

[187] Accordingly, my Associate with contact the parties to arrange a conference to consider how AMMA and the MUA applications should be further progressed in view of this Interim Decision.

COMMISSIONER

Appearances:

A Power, of Counsel for the Applicant.

K Vernon, of Counsel for the Respondent.

Hearing details:

2014:

Perth,

29, 30 and 31 July and 14 August.

Final submissions:

Applicant: 22 August 2014 and 22 September 2014.

Respondent: 8 September 2014.

1 Exhibit A10

2 AMMA submission 2 July 2014 paragraph 5

3 Ibid paragraph 6

4 Ibid paragraph 7

5 MUA submission 14 July 2014 paragraph 16

6 Exhibit A10 (57)

7 Exhibit A6 (11)

8 Exhibit A6 (15)

9 Exhibit A6 (26)

10 Exhibit A6 (100)

11 Transcript PN1545

12 Transcript PN1540-1542

13 Transcript PN1545-1547

14 Transcript PN1565

15 Transcript PN1569

16 Exhibit A6 (34)

17 Transcript PN1677

18 Exhibit A6 (29)

19 Transcript PN1686

20 Exhibit A6 (22)

21 Exhibit A6 (24)

22 Exhibit A6 (13)

23 Closing submission 22 August 2014

24 Exhibit A6 (22)

25 Exhibit A6 (28)

26 Exhibit A6 (46 and 47)

27 Exhibit A6 (49)

28 Exhibit A6 (51)

29 Exhibit A6 (57)

30 Exhibit A6 (57)

31 Exhibit A6 (57)

32 Exhibit A6 (65) and (66)

33 Exhibit R5 (84)

34 MUA’s closing submissions – paragraph 163.

35 Exhibit R5 (87)

36 AMMA outline of submissions – paragraph 6.

Printed by authority of the Commonwealth Government Printer

Australian Mines and Metal Association v Maritime Union of Australia