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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 18
Decision Date: 3 JANUARY 2017

CaseChat Overview and Summary

In the case of Australian Mines and Metals Association, the Australian Maritime Officers' Union (MUA) applied for a bargaining order against the respondent companies, seeking to mandate negotiations for a collective agreement. The dispute arose from the failure to reach an agreement under the Fair Work Act 2009 (Cth). The Fair Work Commission (FWC) was the court involved, with the matter being heard by Commissioner Cloghan and subsequently reviewed on application by the Association.

The central legal issue before the court was whether the conditions set forth in section 603 of the Fair Work Act warranted the revocation of the original order made by Commissioner Cloghan, which had required the respondent companies to engage in negotiations with the MUA. Specifically, the court needed to determine if the MUA had made a genuine effort to negotiate in good faith, as required by the Act, and whether the respondent companies had acted unreasonably in refusing to negotiate.

In its reasoning, the court examined the evidence presented regarding the efforts of the MUA to engage in negotiations and the reasons provided by the respondent companies for their refusal. The court concluded that the MUA had not made a genuine effort to negotiate in good faith and that the respondent companies' refusal to negotiate was not unreasonable under the circumstances. Therefore, the court found that the conditions for a bargaining order were not met, and the application by the MUA was dismissed. The court's decision to revoke the original order made by Commissioner Cloghan was upheld.

Orders