Australian Mines and Metals Association v Maritime Union of Australia

The Australian Mines and Metals Association (AMMA), as bargaining representative for several vessel operators, sought bargaining orders against the Maritime Union of Australia (MUA) for alleged breaches of good faith bargaining obligations under the Fair Work Act 2009 (FW Act). The specific allegations included the MUA's misrepresentation of the vessel operators' wage offer and position on the "foreign labour" clause, as well as its failure to adhere to good faith bargaining obligations. The Fair Work Commission was required to determine whether it would be reasonable to make the bargaining orders, considering the lapse of time since the alleged breaches, the recent developments in the bargaining landscape, and the potential impact of the orders on the resumption of negotiations.

The Commission noted that while the MUA had conceded to several adverse findings, it was not satisfied that it would be reasonable to make the bargaining orders in all the circumstances. The Commission emphasised the importance of considering the context and particular circumstances of each case, including the time elapsed since the alleged breaches and the progress made in negotiations. The Commission also acknowledged the potential for the orders to inflame the situation rather than improve it. Additionally, the Commission was not convinced by the MUA's argument that the alleged breaches were not serious enough to warrant a finding against it. The Commission decided to arrange a conference with the parties to examine the conduct of both parties since the Interim Decision and to determine whether the provisions of s.230(1) of the FW Act had been met.

The Fair Work Commission decided not to make the bargaining orders at that time, but instead to arrange a conference with the parties to examine the conduct of both parties since the Interim Decision. The Commission considered it necessary to examine what had happened since the Interim Decision and to determine whether the provisions of s.230(1) of the FW Act had been met. The Commission also decided to have a further hearing, if necessary, into the allegation of the MUA engaging in surface bargaining for the "Unresolved Complaints". The Commission recognised the unusual context and particular circumstances of these applications and believed that an examination of the conduct of the parties would indicate and satisfy the Commission conclusively whether or not the MUA had met the good faith bargaining requirements, and if not, whether it was reasonable, in all the circumstances, to make the order(s) sought by the Applicant.