Australian Mines and Metals Association v Maritime Union of Australia

[2015] FWC 8479

[2015] FWC 8479

FAIR WORK COMMISSION

INTERIM DECISION

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

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

COMMISSIONER CLOGHAN PERTH, 8 DECEMBER 2015

Applications for bargaining orders – Interim Decision.

[1] The Australian Mines and Metals Association (AMMA or Applicant) 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)

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 or Respondent). Mermaid Marine, Swire, OMS and Tidewater will be referred to collectively as the Vessel Operators.

[2] I issued Directions following an Interim Decision [2015] FWC 773 concerning the above applications.

[3] The Directions provided the parties to make further submissions regarding the following paragraphs in the Interim Decision:

“[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.”

[4] The parties have provided five separate submissions which will be referred to as follows:

• Applicant: 18 August 2015 as A1;



• Respondent: 1 September 2015 as R1;



• Applicant: 14 September 2015 as A2;



• Respondent: 18 September 2015 as R2; and



• Applicant: 21 September 2015 as A3.

APPLICANT’S SUBMISSION

[5] The Applicant submits that it is reasonable, in all the circumstances, and appropriate that the Commission make the following orders:

“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 MMA Offshore Limited, Swire Pacific Management (Australia), Skilled Offshore (Australia) Pty Ltd, and Tidewater Marine Australia Pty Ltd (Vessel Operators), which specifically retracts, corrects and apologises for each misinformation published to employees of the Vessel Operators who are members of the MUA (MUA Constituents), including the MUA’s media release of 21 February 2014, Chris Cain’s communications to MUA members on 16 and 17 April 2014 and Will Tracey’s communication 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 Interim Orders issued on 9 July 2015 (sic) (PR552801 and PR553011 in B2014/786; PR552938 and PR553013 in B2014/787; PR552944 and PR553016 in B2014/788; and PR552946 in B2014/795) shall continue to operate until such time as:

(a) an enterprise agreement is reached in relation to each of the respective Vessel Operators; or

(b) the parties to each respective proceeding agree that the Interim Order/s be set aside.

This order is operative from [date].”

[6] The Applicant relies on my findings in the Interim Decision that the MUA, as bargaining representative for the following offshore oil and gas enterprise 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)

misrepresented:

• the status of the Vessel Operators’ wage offer;



• the Vessel Operators’ position with respect to the “foreign labour” clause;



• the Vessel Operators’ movement, progress or conduct in bargaining; and



• the Vessel Operators’ position regarding its communication with its employees and then proceeded to discredit that position.

[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. 1

[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.

[9] In summary, the Applicant submits that the proposed orders in paragraph [5] above are the only appropriate consequence to the MUA’s “repeated and consistent failure to meet the good faith bargaining requirements, and are entirely reasonable in circumstances where the Respondent [MUA] ought to have known or anticipated such consequences would flow from its actions”. 2

[10] The Applicant also submits that it is reasonable to preserve the integrity and purpose of the consent Interim Orders without the necessity of determining what is described as the “Undetermined Complaints”. The Applicant sets out the reasons for such a submission. 3

[11] Alternatively, the Vessel Operators submit that the Commission:

(a) make orders regarding the misrepresentations pending final determination of the Undetermined Complaints; and

(b) in relation to the Undetermined Complaints, the parties agree to leave the Interim Decision “lie on the file” and the matter of a bargaining order, if necessary, be considered at a later time; and

(c) the Commission reserves its final decision until a further hearing and determination of the allegations relating to the Undetermined Complaints.

[12] The alternative submission, according to the Vessel Operators, facilitates consideration of bargaining since the alleged “surface bargaining” or Undetermined Complaints took place.

MUA’S SUBMISSION

[13] The MUA submit that the Commission has no power to make a bargaining order pursuant to s.230(1)(c) of the FW Act, unless and until, it is satisfied that the provisions of s.230(3)(a)(i) has been met.

[14] In the Interim Decision, the MUA concede that I made a number of adverse findings against it. 4 However, the MUA submit that, as I did not come to the conclusive view that it would be reasonable to make the order(s) sought, notwithstanding these adverse findings, I had effectively not made a finding that it would be reasonable, in the circumstances, to make a bargaining order.

[15] The MUA further submit that:

“In the absence of any findings on the Undetermined Complaints, the Commission has no power to make a bargaining order for any purpose, given the Commission could not satisfy the requirements in section 230(3) of the FW Act”. 5

[16] The MUA assert that, in view of the lapse of time, “it can no longer be said that there is any purpose to be served in making a bargaining order” in any terms, “as the parties must now resume bargaining with due regard to the findings contained in the Interim Decision, and any changes in the bargaining landscape that may have occurred in the interim”. 6

[17] Finally, the MUA submit that if the GFBO applications are not dismissed, “it would not be reasonable to the Respondent [MUA], or necessary, to facilitate the resumption of the bargaining process to extend the operation of the Interim Orders of 9 July 2014 as proposed by the Applicant”. 7

CONSIDERATION

[18] After the initial submissions, the parties provided further submissions which I found helpful.

[19] Succinctly, the MUA submit that if the Commission makes a finding that the “Misrepresentations” and/or the “Undetermined Complaints” constitute a failure to meet the GFB requirements, the Commission must still be satisfied that it is reasonable in all the circumstances to make the order(s).

[20] Misrepresentation is not seen as reasonable conduct in negotiations. The MUA have attempted to distinguish industrial bargaining, including for an enterprise agreement, from other types of negotiation. This contextual difference potentially leads to an industrial setting, in which different standards, lead to an “anything goes” approach.

[21] While the Commission acknowledges that in the industrial setting, parties tend to themselves as contestants, rather than collaborators. However, the issue of misrepresentation can, and should be, considered a determinant of whether a party has negotiated in good faith. One instance of misrepresentation may not be a determinant of bad faith bargaining, but that was not the case in these applications.

[22] While I agree with the MUA that I should be cautious “in finding that a misrepresentation made in the course of bargaining constitutes a failure to meet the good faith bargaining requirements” 8, I am not dealing with “a” isolated occurrence, but a number of instances.

[23] I now turn to the alternative submission by the MUA that the misrepresentation occurred some time ago and the “real question for the Commission is whether the making of the bargaining orders is required to assist the Respondent to meet the good faith bargaining requirements”. 9 Further, to make GFB orders “has the potential to inflame the situation rather [than] improve it”.10

[24] Although there is force to the MUA’s argument, I would be more agreeable to such an argument if it was accompanied by a submission that the parties were on the brink of replacement enterprise agreements, or at a sensitive stage in negotiations.

[25] The MUA advise that agreement was reached with “Farstad” on 11 September 2015, and add, “it can reasonably be expected that this development has the potential to break the current deadlock between the parties”. 11

[26] While such language is full of hope, the MUA has not made me aware of what progress has occurred over the past three (3) months in negotiations with the Vessel Operators.

[27] I now turn to the issue of the Undetermined Complaints. For reasons set out in the Interim Decision, it was not necessary for me to come to a conclusive view on whether the MUA engaged in surface bargaining.

[28] The Vessel Operators note that while the MUA initially submitted 12 that the Undetermined Complaints were not subject to any findings in the Interim Decision, now state that my findings, “indicate that the evidence on the allegation of surface bargaining is, at best, equivocal”.13

[29] Having characterised my findings as equivocal, the MUA submit that such evidence does not warrant a “serious” adverse finding against the MUA.

[30] As a further alternative, the MUA submit that the Commission should leave the applications in abeyance, and if events of future conduct by the MUA “reinvigorates the Applicant’s desire/need for bargaining orders to be made; whilst at the same time acknowledging that it is not necessary to make orders at the present time having regard to the time that has elapsed since any breaches, the events that have occurred since then and the recent changes in the industrial bargaining landscape”. 14

[31] The Vessel Operators submit that they are entitled to a finding on each of the various Undetermined Complaints 15 and, in view of the lapse of time, the Commission should provide the parties with a further hearing into those matters, prior to any final determination.

CONCLUSION

[32] The obligation to meet the GFB requirements in the FW Act is mandatory. In the event that the Commission is satisfied that a party is not meeting those GFB requirements, the Commission must further satisfy itself that it is reasonable, in all the circumstances, to make the order(s).

[33] In the Interim Decision, I made a number of findings with respect to the MUA’s misrepresentation of certain matters. However, notwithstanding the submissions of the parties, I have yet to 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.

[34] If the replacement “Farstad” enterprise agreement promised hope of replacement agreements for the Vessel Operators, it would be rash and unwise for me not to consider what has happened since the conclusion of that particular agreement.

[35] With respect to the allegation of the MUA engaging in surface bargaining for the “Unresolved Complaints”, I am inclined to agree with the Vessel Operators that, in view of the lapsed time, the Commission should be apprised of, and if necessary, have a further hearing, into what has occurred since the Interim Decision.

[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.

COMMISSIONER

Final written submissions:

Applicant: 18 August; 14 and 21 September 2015.

Respondent: 1 and 18 September 2015.

 1   A1 paragraph 14

 2   A1 paragraph 18

 3   A1 paragraphs 20 to 22

 4 R1 paragraph 9

 5 R1 paragraph 20

 6 R1 paragraph 21.5

 7   A1 paragraph 23

 8 R2 paragraph 9

 9 R2 paragraph 20

 10 R2 paragraph 21

 11 R2 paragraph 25

 12 R1 paragraph 19

 13 R2 paragraph 17

 14 R2 paragraph 29

 15   A1 paragraph 23

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