Australian Municipal, Administrative, Clerical and Services Union v Harbour City Ferries Pty Ltd

[2014] FWC 786

[2014] FWC 786

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union & Ors
v
Harbour City Ferries Pty Ltd
(B2014/10; B2014/12; B2014/465)

DEPUTY PRESIDENT SAMS SYDNEY, 4 FEBRUARY 2014

Proposed protected action ballot of employees of Harbour City Ferries Pty Ltd

BACKGROUND

[1] These are three applications filed by the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Australian Institute of Marine and Power Engineers (AIMPE) and the Maritime Union of Australia (MUA) (collectively, the ‘Unions’) under s 437 of the Fair Work Act 2009 (the ‘Act’) for a protected action ballot of Harbour City Ferries Pty Ltd (the ‘respondent’) employees, for whom the Unions are bargaining representatives.

[2] The parties have been engaged in negotiations for a proposed enterprise agreement since July 2013. There has been at least nine bargaining meetings since that time. The current enterprise agreement (the Sydney Ferries Salaried and Senior Officers Agreement 2011 [AE885973]) expired on 31 December 2013. At a hearing of the applications on 29 January 2014, I decided, pursuant to s 442 of the Act, to join the applications and deal with them at the same time.

PROCEEDING

[3] Mr I Faulks, with Ms D Price for the respondent, opposed the applications by submitting that a protected action ballot was unnecessary, because although the Unions had unilaterally rejected the respondent’s position on their claims in a letter dated 23 January 2014, the respondent would be advancing further proposals, no later than Friday 31 January 2014. Mr Faulks was confident the new offer would be accepted. He did not otherwise dispute the actual terms of the proposed protected action ballot questions.

[4] The Unions’ advocates (Ms L Hutchins, and Mr P MacPhee for the ASU, Mr J Fallone for AIMPE and Mr P Garrett for the MUA) noted that the respondent had, without the Unions being advised (let alone agreeing to) put a proposed agreement to a ballot of the employees and it was rejected by them in a vote of 31 against and 25 in favour. The employees had then decided to seek a protected action ballot in order to progress the negotiations. Reliance was also had on the affidavits of Mr Peter MacPhee of the ASU and of Mr Paul Garrett of the MUA, both of which set out the history of the recent bargaining process.

[5] Accepting Mr Faulks’ optimism of a satisfactory outcome from a further meeting of the parties within 48 hours, I decided to adjourn the applications until 31 January 2014 in the hope such optimism would be realised. That was not to be.

[6] At a relisting of the applications on 31 January 2014, the Unions pressed for the protected action ballot order, as a meeting held the day before, had not resolved the parties’ main differences. Of seven issues identified in the Union’s letter of 23 January 2014, five had been resolved, but two key matters remained outstanding: the wage increases and enhanced redundancy provisions. Ms J Wright, now appearing for the ASU, advised that a meeting of members that morning had rejected the respondent’s latest offer.

[7] Mr Faulks continued to oppose the applications and submitted the Unions were being unreasonable and were not interested in resolving the negotiations. They appeared intent only on some form of industrial action. He also argued that the questions to be asked concerning bans on communication between employees, raised serious safety issues and should not be included on the ballot paper.

[8] Ms Wright observed that Mr Faulks’ concerns were premature and could be addressed if the ballot was successful and the Unions gave notice, under s 414 of the Act, of what action they intended to take.

[9] At the conclusion of the hearing, I advised the parties that I was satisfied that the requirements of s 414 had been met and I must therefore make the orders as sought. These are my reasons for doing so.

CONCLUSIONS

[10] Section 443 of the Act requires the Commission to make a protected action ballot if two prerequisites are met; namely:

‘(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.’

[11] Pursuant to s 443(1) of the Act, I am satisfied that the applications are competently before the Commission and the applicant Unions have been genuinely trying to reach agreement with Harbour City Ferries Pty Ltd - the employer of the employees who are to be balloted. I do not apprehend the Union’s letter of 23 January 2014 to be a ‘take it or leave it’ offer. It expresses a willingness to continue to negotiate in good faith. This is not a case where there has been a refusal to bargain. In any event, in my experience, it is not unusual for a party, in robust negotiations, to make a ‘final’ offer. Such offers are rarely final in the true sense, merely a negotiating tactic.

[12] In addition, I make the following observations on Mr Faulks’ submissions. The test of whether the bargaining representatives are genuinely trying to reach an agreement with the employer is not that one side must agree to what the other side believes is reasonable. If that were the case, no applications for a protected action ballot would ever be likely to succeed. Rather, Mr Faulks’ submission had all the hallmarks of a complaint that the Unions were not bargaining in good faith. However, I note that no application under s 229 of the Act has been made. Nor has the respondent sought the Commission’s assistance to resolve the dispute under s 240 of the Act. I would add that parties are perfectly entitled to take a ‘hard line’ in their negotiations. But it does not follow that they are not negotiating in good faith.

[13] As to the specific questions to be asked in the ballot, I agree with Ms Wright that Mr Faulks’ concerns are premature. Firstly, the ballot has not even been organised, let alone declared. Assuming employees vote for all, or some of the proposed industrial action, under s 414(1) of the Act, the Unions must still give the employer three days notice of the action proposed to be taken. An opportunity will then exist for the respondent to seek an urgent Commission hearing should it have concerns as to the effect of any proposed action on health and safety.

[14] For the aforementioned reasons, I must make the proposed orders as requested. The orders published with this decision are in terms of Attachment A to Application B2014/10, although the dates have been modified at the request of the Australian Electoral Commission.

DEPUTY PRESIDENT

Appearances:

Ms L Hutchins, Mr P MacPhee and Ms J Wright for the Australian Municipal, Administrative, Clerical and Services Union.

Mr J Fallone of the Australian Institute of Marine and Power Engineers.

Mr P Garrett for the Maritime Union of Australia.

Mr I Faulks and Ms D Price for Harbour City Ferries Pty Ltd

Hearing details:

2014

Sydney:

29, 31 January.

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