Australian Mines and Metals Association

[2017] FWC 18

[2017] FWC 18

FAIR WORK COMMISSION

DECISION

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

Australian Mines and Metals Association
(B2014/788)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 3 JANUARY 2017

Application for a bargaining order – application by MUA pursuant to s.603 to revoke Order of Commissioner Cloghan.

[1] On 14 November 2016 the Maritime Union of Australia (the MUA) applied to vary a Bargaining Order (PR587094) issued by Cloghan, C on 31 October 2016. The variation application was made pursuant to s.603 of the Fair Work Act 2009 (the FW Act) and sought that the Bargaining Order be revoked. I note that the Commissioner retired on 31 October 2016.

[2] This variation application was the subject of a hearing on 17 November 2016 and subsequent written submissions. Notwithstanding that I have noted that the parties have reached an agreed position in relation to the matter, I have set out my conclusions about the variation application in this decision.

[3] The Bargaining Order issue on 31 October 2016 followed an extremely lengthy consideration. The Order which the MUA seek to be revoked was issued pursuant to a decision 1 issued by Cloghan, C on 31 October 2016. That decision dealt with simultaneous applications for bargaining orders made by Australian Mines and Metals Association (AMMA) as the bargaining representative for four employers, including Offshore Marine Services Pty Ltd. In his decision, the Commissioner noted that he had been advised that one employer, Tidewater Marine Services Pty Ltd had ceased operating in Australia and had discontinued its application.

[4] In summarising the long history of this matter, I have directed primary attention to Offshore Marine Services, rather than the remaining two employers. That history provides some salutary messages relative to the conduct of parties in bargaining and to proceedings in the Fair Work Commission (the FWC).

[5] There does not appear to be any dispute that, in December 2012, Offshore Marine Services and the MUA commenced bargaining. The Bargaining Order applications were made in May 2014. The applications were the subject of proceedings in the FWC in July and August 2014.

[6] In the course of 2014, Offshore Marine Services appears to have been incorporated into Skilled Offshore Pty Ltd (a subsidiary of the Skilled Group Ltd). It appears that the Offshore Marine Services name was changed accordingly, in June 2014. It does not appear that any advice of these changes was provided to the Commissioner.

[7] An interim decision was issued by the Commissioner on 21 July 2015. 2 That decision largely reflected the Orders sought by AMMA on behalf of its member employers.

[8] The matter was the subject of a Federal Court of Australia decision 3 on 3 July 2015. I note that this decision referred to Skilled Offshore Pty Ltd.

[9] The application was then the subject of further proceedings in the FWC.

[10] In October 2015 Program Maintenance Services acquired Skilled Offshore Pty Ltd. Again, it does not appear that this development was raised in the proceedings before the Commissioner.

[11] The Commissioner issued a second Interim Decision 4 on 8 December 2015. That second Interim Decision recorded representations from AMMA in the following terms:

“[7] The Applicant acknowledges that there has been a considerable lapse of time since the above conduct took place, however, submit that the MUA’s conduct cannot be overlooked because of time passed. Further, to overlook such conduct would be contrary to the enabling provisions of the FW Act to make orders to facilitate good faith bargaining.

[8] The Applicant asserts that the orders sought are absolutely necessary to redress the impact of the MUA’s misrepresentation and re-establish its position in bargaining as a result of the MUA’s failing to adhere to its good faith bargaining (GFB) obligations. In support of its assertion, the Applicant cites TWU v Veolia Transport Queensland Pty Ltd [2011] FWA 8317.”

[12] The Commissioner also noted that he had not been made aware of progress toward an agreement over the previous three months. 5 The Commissioner stated:

“[36] The context and particular circumstances of these applications is unusual in a number of respects. Ultimately, the Commission will have to determine whether the provisions of s.230(1) of the FW Act have been met. However, I consider it necessary, in view of the submissions by both parties and the lapse of time, to examine what has happened since the Interim Decision. An examination of the conduct of the parties will indicate and satisfy me conclusively, whether or not, the MUA have met the GFB requirements, and if not, whether it is reasonable, in all the circumstances, to make the order(s) sought by the Applicant.

[37] For the above reasons, a conference of the parties will be held, in the first instance, on 11 January 2016. My Associate will contact the parties in this respect.”

[13] In early 2016 operations previously undertaken by Skilled Offshore and Programmed Maintenance Services were transferred so as to be undertaken as Programmed Marine. Further, the MUA has advised that in March 2016, the last remaining Skilled Offshore contracts were novated to Programmed Marine, and employees were transferred to Programmed Marine.

[14] Little of significance then happened until October 2015 when Skilled Offshore personnel, who were not transferred to Programmed Marine, commenced being made redundant. This redundancy process was completed by the end of June 2016.

[15] On 13 October 2016 Programmed Marine sought approval of the Programmed Marine Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Maritime Offshore Oil and Gas Industry) Enterprise Agreement 2016 (the Programmed Marine Agreement). That Agreement was approved on 12 December 2016.

[16] For the sake of completeness, I note that the Commissioner’s decision of 31 October 2016 also provided for Orders in similar terms which are applicable to Mermaid Marine Vessel Operations Pty Ltd and Swire Pacific Ship Management (Australia) Pty Ltd. As I have noted, a separate Order with respect to Tidewater Marine Australia Pty Ltd reflected the closure of that operation.

The Commissioner’s Order

[17] The Commissioner’s Order required the MUA to correct information sent to employees covered by the Offshore Marine Services Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010, in the following respects:

● on 20 February 2014 the MUA informed the relevant employees that AMMA and offshore vessel operators had withdrawn a 16.5% wage offer. The fact is that the MUA had rejected the offer on 16 January 2014;

● on 10 March 2014, the MUA informed the relevant employees that AMMA was “running fast and loose with the truth…and then withdrawing [wage offer] when the MUA finally accepted that offer”. The fact is that the MUA had rejected the 16.5% wage offer on 16 January 2014, and secondly, the MUA purported acceptance of the offer was conditional;

● in February 2014, the MUA accused Offshore Marine Services Pty Ltd (OMS) of seeking to deny the relevant employees of a replacement agreement until June 2015. There is no evidence of OMS attempting to deny employees of a replacement enterprise agreement. In fact, OMS were seeking a replacement agreement as early as possible;

● in March 2014, in a publication to the relevant employees, the MUA accused vessel operators including OMS, of refusing to meet to bargain for a replacement enterprise agreement. OMS had not refused to meet with the MUA;

● on 27 April 2014, the MUA informed the relevant employees by email, under the title “Foreign Labour Clause not resolved”, that the said clause had not been resolved with OMS. The fact is that the MUA and OMS had reached agreement on the proposed clause. Further, the location of the said clause was not a matter of substantial controversy between the parties; and

● on 27 April 2014, the MUA emailed the relevant employees that “offshore employers appear to flag offer of non-union agreement”. This email communication had no basis in fact.” 6

[18] Secondly, the Order directed the MUA:

● to refrain, when communicating with relevant employees and the media, from misrepresenting the position of OMS as to the Union’s claims, its status or progress of bargaining for a replacement enterprise agreement to the Agreement; and

● to refrain from making it a condition that the bargaining group, or bargaining for a replacement enterprise agreement, include a third party.” 7

[19] Thirdly, the Order directed the MUA to forward to the relevant employees, a copy of the Order and a copy of correspondence to AMMA relative to the earlier requirements.

[20] Finally, the Order required the MUA to provide evidence of compliance with this Order to the FWC and to AMMA, by 17 November 2016.

The Variation Request

[21] The MUA assert that the information correction requirement in the Order has no utility in the present circumstances. Further, that as Offshore Marine Services now no longer employs any “relevant employees”, so that it is not possible to provide advice to those persons. The MUA assert that, because of the changed corporate structures and the application for approval of the Programmed Marine Agreement, the direction, in the Order relating to the MUA’s future conduct, now has no utility.

[22] AMMA has not objected to this course of action but, as an alternative, suggests that a further Order could be issued by consent so as to confirm that the Order issued by the Commissioner, 8 no longer has any purpose or effect.

[23] The MUA has confirmed that it was prepared to agree to that alternative approach.

Conclusions

[24] The circumstances of this matter arise for a number of reasons.

[25] Firstly, the very long time period between the application for bargaining orders and the ultimate conclusion of the matter so as to demonstrate the risks of delaying consideration of Bargaining Order applications.

[26] Secondly, throughout the matter, the MUA appears to have adopted an intransigent approach to the issues in dispute rather than committing itself to the prompt conclusion of the negotiation process. This reflects a position which the MUA should reflect upon for the future.

[27] Thirdly, I am unable to see any appropriate reason for the apparent failure on the part of AMMA to provide timely advice to the Commissioner with respect to the corporate and employment changes within Offshore Marine Services. That issue appears to go directly to the credibility of AMMA as a bargaining representative seeking the assistance of the FWC. The obligation to inform the parties, and, to the extent that the FWC is involved, of changes to relevant organisational structures is an issue which should be addressed by AMMA in any future matter.

[28] Section 603 states:

“603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2‑3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);

(c) a decision under Part 2‑5 (which deals with workplace determinations);

(d) a decision under Part 2‑6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”

[29] Because the effect of the position now adopted by both parties is to agree that the Order issued by the Commissioner cannot now be complied with and has no utility because of a shared failure to provide advice to the Commissioner about these corporate changes, I have agreed that it would be appropriate to vary the Decision of 31 October 2016 so as to exclude the Order 9 in question from paragraph 122 of that decision. This would have the effect of revoking that Order. I note that there is no suggestion that the Commissioner’s conclusions relative to the conduct of the MUA was incorrect. Accordingly, this revocation decision must not be taken as altering that aspect of the Commissioner’s Decision.

[30] An Order (PR589049) revoking the Order (PR587094) of 31 October 2016 will be issued.

 1   [2016] FWC 738

 2   [2015] FWC 773

 3 [2015] FCA 677

 4   [2015] FWC 8479

 5   [2015] FWC 8479, para [26]

 6   PR587094, para [1], dot points

 7   PR587094, para [2], dot points

 8   PR587094

 9   PR587094

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