Farstad Shipping (Indian Pacific) Pty Ltd v Australian Institute of Marine and Power Engineers, The
[2015] FWC 2321
•2 APRIL 2015
| [2015] FWC 2321 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Farstad Shipping (Indian Pacific) Pty Ltd
v
Australian Institute of Marine and Power Engineers, The
(B2014/1697)
COMMISSIONER JOHNS | MELBOURNE, 2 APRIL 2015 |
Australian Institute of Marine & Power Engineers.
Introduction
[1] On 16 December 2014 Farstad Shipping (Indian Pacific) Pty Ltd (Farstad) made an application for bargaining orders pursuant to s. 229 of the Fair Work Act 2009 (FW Act). The respondent is the Australian Institute of Marine and Power Engineers (AIMPE).
[2] The proposed single-enterprise agreement is referred to by the parties as the Farstad Shipping (Indian Pacific) Pty Ltd (XXX Officers) Offshore Oil and Gas Enterprise Agreement 2014 (Proposed Agreement).
[3] Currently the employees who would be covered by the Proposed Agreement are covered by the Farstad Shipping (Indian Pacific) Pty Ltd and Australian Institute of Marine and Power Engineers Enterprise Agreement 2010 (Current Agreement).
[4] In its application to the Fair Work Commission (Commission) Farstad submitted that the AIMPE had not met, and was not meeting the good faith bargaining requirements in two ways:
(a) First, it was said that the AIMPE was engaging in a capricious attempt to change claims and that this was undermining the collective bargaining process (Changing Claims Allegation); and
(b) Secondly, it was said the AIMPE had made deliberate misrepresentations to its members about the status of negotiations (Misrepresentation Allegation).
[5] Farstad are seeking the issuing of bargaining orders in relation to the conduct of the AIMPE during bargaining for the Proposed Agreement. The capacity of the Commission to make the orders sought by Farstad in its application was the subject of discussion on the first day of the hearing. 1 Consequently, Farstad were directed to file and serve amended draft orders.
[6] On 8 January 2015 Farstad filed in the Commission and served on the AIMPE amended orders that it now sought (Exhibit A2). They were as follows:
1. The Australian Institute of Marine and Power Engineers (AIMPE) must honour the progress achieved in negotiations with Farstad Shipping (Indian Pacific) Pty Ltd (Farstad) immediately prior to service of the AIMPE’s Amended Log of Claims dated 19 September 2014 (the Relevant Progress Date). For the purposes of this Order, the “progress achieved” is defined in Attachment 1 to this Order.
2. Order 1 is subject only to the following:
The AIMPE may propose modifications to its claims in Attachment 1 to this Order, only to the extent that:
(a) it considers necessary to ensure its Outstanding Claims do not represent claims that are for an unlawful term and/or are not about a permitted matter, within the meaning of the Fair Work Act; and
(b) is agreed with Farstad; or
(c) the AIMPE provides to Farstad, in writing, reasons and justification for each modification proposed, having regard to the objects of the Fair Work Act and including with specific detail as to how such amendment or modification would enable the parties to move closer towards reaching an agreement.
3. Within 72 hours of this Order being issued, the AIMPE must:
(a) consult with Farstad and obtain Farstad’s agreement regarding the form of a notice that is an accurate summary of Farstad’s 25 September 2014 Offer including to correct the misrepresentations, errors and /or important omissions contained within the AIMPE’s communication to Farstad employees dated 26 September 2014 and the AIMPE’s “On Watch” publications of October and November 2014 (Original Communications) (Correction Notice); and
(b) publish and distribute the Correction Notice at sub-Order 3(a) to all recipients of the Original Communications, via the same mode of communication as the Original Communications were respectively sent.
[7] The progress achieved and defined in Attachment 1 was as follows:
Outstanding claims as at the Relevant Progress Date | ||
Summary claim/s | Detailed claim/s | |
1. Training | Farstad: - 2% total payroll spend as minimum commitment to training for new entrants only. AIMPE: - Farstad contribution of 2% commitment per Farstad offer; plus | |
2. Salary | AIMPE: - Wage relativities in line with MUA and AMOU; Farstad: - 2.75% (year 1); | |
3. Winch driving | AIMPE: - Words AIMPE want were discussed at an early stage. | |
4. Drug and Alcohol Policy - Swab testing, no blanket testing, oppose bag searches | AIMPE - Farstad is able to comply with client d&a policy so long as the client policy meets 3 criteria (random in time, all get tested, no blood testing). | |
5. Loss of certificate insurance to ≥ 60 years | AIMPE: AMSA medical – loss of certificate insurance for over 60 years. | |
All other claims as at the Relevant Progress Date | ||
Various | In principle agreed as per Farstad proposed draft agreement. | |
The hearing
[8] The application was listed for hearing on 7 and 9 January 2015.
[9] At the hearing Farstad was represented by Ms Amanda Mansini. Ms Mansini called Bonne (Bob) Venema, Farstad’s HR Manager Employee Relations (Offshore), to give evidence (Exhibit A3).
[10] At the hearing the AIMPE was represented by Mr Bill McNally. Mr McNally called Andrew Williamson, the AIMPE’s Senior National Organiser in Western Australia, to give evidence (Exhibit R1).
Events post-hearing
[11] In the week following the hearing, the parties exchanged correspondence aimed at resolving the substance of the Misrepresentation Allegation by having the AIMPE publish a correction notice. The Commission, as presently constituted, decided to allow the parties time to resolve the Misrepresentation Allegation before issuing a decision in this matter; because a resolution of the same would necessarily have a bearing on the orders that might be made.
[12] On 15 January 2015 Farstad filed in the Commission and served on the AIMPE its Final Submissions.
[13] Also on 15 January 2015 Farstad wrote to the Commission as advised that,
“it does not press those orders that relate to the [Misrepresentation Allegation] but does seek findings about the bargaining conduct of the Respondent in that regard.”
[14] On 21 January 2015 the AIMPE filed in the Commission and served on Farstad its Final Submissions.
[15] On 23 January 2015 the parties filed in the Commission an agreed chronology of events (Agreed Chronology).
[16] Also on 23 January 2015, Farstad confirmed that it was “prepared to agree to the Correction Notice proposed by AIMPE on 15 January 2015”, but wrote that it,
“was not yet in a position to withdraw its application for order(s) to address [the Misrepresentation Allegation] …. If agreement is able to be reached, we will inform the Commission immediately and accordingly.
In the interests of absolute clarity, as per its Final Submissions, Farstad would still seek findings about the matters [relating to the Misrepresentation Allegation] even if no orders are required due to any agreement about the Correction Notice.”
[17] On 10 February 2015 Farstad advised that it had,
“…received confirmation from the AIMPE that the Correction Notice has been published as agreed. … As such … we confirm Farstad’s position that, in light of this development, bargaining order(s) are no longer required to address [the Misrepresentation Allegation]. However, in the interests of clarity, Farstad confirms that it still seeks …. Findings in relation to [the Misrepresentation Allegation]…”
[18] On 11 February 2015 wrote to the Commission and advised that, in relation to the Misrepresentation Allegation it,
“…wishes to call further evidence from Andrew Williamson if Farstad continues to seek findings based on [the Misrepresentation Allegation].”
[19] On 13 February 2015 Farstad advised that it still presses for findings in relation to [the Misrepresentation Allegation], but that it opposed Mr. Williamson giving further evidence and the reopening of the case in circumstances where the Commission has already reserved its decision.
Disposition of the Misrepresentation Allegation
[20] In circumstances, such as the present, where:
a) in the weeks following hearing the parties have resolved the Misrepresentation Allegation;
b) the need for bargaining orders in respect of the Misrepresentation Allegation has been rendered otiose by virtue of the AIMPE publishing a Correction Notice in agreed terms; and
c) the Applicant has confirmed that it no longer seeks good faith bargaining orders in respect of the Misrepresentation Allegation,
it is apparent that making findings in respect of the Misrepresentation Allegation would be an arid exercise. It is not the function of the Commission to engage in such exercises and the Commission, as presently constituted, declines to do so.
[21] The sole issue remaining in dispute between the parties concerns the Changing Claims Allegation. There is no utility in the Commission concerning itself with anything else and, as such, this decision is confined to the Changing Claims Allegation.
The legislation
[22] The sections of the FW Act relevant to this application and its determination are set out below:
“228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.
229 Applications for bargaining orders
Persons who may apply for a bargaining order
(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.
Multi-enterprise agreements
(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.
Timing of applications
(3) The application may only be made at whichever of the following times applies:
(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:
(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or
(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;
(b) otherwise—at any time.
Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.
Prerequisites for making an application
(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:
(a) has concerns that:
(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and
(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.
Non-compliance with notice requirements may be permitted
(5) the FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.
230 When the FWC may make a bargaining order
Bargaining orders
(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; and
(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) The FWC must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) The FWC must in all cases be satisfied:
(a) that:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) that Farstad has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted Farstad to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”
Background
[23] The parties filed an Agreed Chronology as follows:
a) In March 2013 negotiations for an enterprise agreement to replace the Existing Agreement formally commenced. 2
b) Between March 2013 – 15 October 2014 Farstad and the AIMPE participated in 19 formal negotiation meetings focussed on the matters listed in the AIMPE’s Original Log of Claims (Exhibit A3). 3
c) On 20 August 2014 Mr Venema sent an email to Mr Williamson attaching drafts of the Proposed Agreement, Employee Code of Conduct and Drug and Alcohol Policy (Exhibit A6). 4
d) On 11 September 2014 Commissioner Cloghan handed down a decision in AIMPE v Mermaid Marine Vessel Operations Pty Ltd & Ors [2014] FWC 3786. 5
e) Between 12 to 18 September 2014 the AIMPE prepared a document titled “Farstad Shipping (Indian Pacific) Pty Ltd AIMPE Enterprise Agreement Renewal”, which listed 12 bargaining claims (September Log of Claims) (Exhibit A1). 6
f) On 19 September 2014 there occurred a negotiating meeting (19/9 Meeting) attended by the AIMPE and Farstad. 7
g) At the conclusion of the 19/9 Meeting, the AIMPE provided Farstad with its September Log of Claims. 8
h) On 25 September 2014 Mr Venema sent an email to Mr Williamson attaching Farstad’s Best Offer (Farstad’s Best Offer) (Exhibit A3). 9
i) On 26 September 2014 the AIMPE published a document described as a “summary” of Farstad’s Best Offer. 10
j) On 15 October 2014 a bargaining meeting was held between the AIMPE and Farstad. At the conclusion of the meeting the AIMPE confirmed its rejection of Farstad’s Best Offer and provided Farstad with the September Log of Claims first tabled at the conclusion of the 19/9 Meeting. 11
k) On 16 October 2014 Mr Williamson sent Mr Venema an email attaching the AIMPE’s “summary” of Farstad’s Best Offer. 12
l) On 22 October 2014 Mr Venema sent an email to Mr Williamson in which he stated that Farstad is “committed to provide a proposal to move negotiations about the harmonised agreement beyond our apparent impasse”. He proposed that “a small working group comprised of Farstad, AIMPE and two Farstad Engineers meet to review the draft document provided to AIMPE by email on 25 September 2014”. 13
m) On 28 October 2014 Mr Williamson replied to Mr Venema’s email of 22 October 2014 and indicated that “AIMPE has been consulting our members employed with Farstad with the aim of getting some guidance over further engaging with Farstad over the harmonised document. The feedback we have is to consider that document as rejected and to instead have further negotiations based upon Farstad-AIMPE EA and vary this in a mutually agreed manner.” (Exhibit A9). 14
n) In its October 2014 edition of the AIMPE’s “On Watch” membership Magazine, the AIMPE published a document described as a “summary” of Farstad’s negotiations and a further update on the negotiations. 15
o) On 7 November 2014 Mr Venema sent a bargaining concerns notice to Mr Williamson setting out his concerns about the AIMPE’s September 2014 Log of Claims and requesting action to address those concerns. 16
p) On 17 November 2014 Mr Williamson sent a letter to Mr Venema responding to Mr Venema’s letter of 7 November 2014. 17
q) In its November 2014 issue of the AIMPE’s “On Watch” membership Magazine the AIMPE published a further update on the negotiations. 18
r) On 9 December 2014 Mr Williamson sent an email to Mr Venema requesting a meeting to discuss an attached December Log of Claims (December Log of Claims). The December Log of Claims list 10 bargaining claims. 19
s) No further negotiation meetings have been held since. 20
t) On 16 December 2014 Farstad filed an Application for a bargaining order.
Issue in dispute
[24] Having disposed of the Misrepresentation Allegation the only remaining issue in dispute is the Change of Claims Allegation.
[25] Farstad submits that the conduct of the AIMPE contravened the good faith bargaining requirements of s.228(1) of the FW Act and justifies the making of bargaining orders under s.230 of the FW Act.
[26] Specifically, Farstad submits that,
“In contravention of ss.228(1)(e) and (d) of the FW Act, the AIMPE has engaged in conduct which is frustrating, delaying and undermining the collective bargaining process including by artificially purporting to reset the lengthy bargaining process to date, failing to give genuine consideration to Farstad’s proposal(s) and/or failing to give reasons for AIMPE’s responses to Farstad’s proposals.” 21
Prescribed matters under s.230 of the FW Act
[27] Before the Commission can exercise its discretion to make a bargaining order under s.230 it must be satisfied in all cases of the following matters prescribed in that section.
S.230 (1)(a) - an application has been made
[28] In this matter the Respondent appropriately conceded that s.230(1)(a) of the FW Act has been complied with.
S.230 (1)(b) - the requirements of the section are met in relation to the agreement
[29] This was not an issue in dispute in the proceeding. The Commission, as presently constituted, so finds that the requirements of the section are met in relation to the agreement.
S.230 (2)(a) - the employer or employees have agreed to bargain, or have initiated bargaining, for the agreement
[30] In this matter as is apparent from the common ground between the parties (set out at in [23] above), Farstad has agreed to bargain. The Respondent appropriately conceded that s.230(2)(a) of the FW Act has been complied with.
S.230 (3)(b) - compliance with the requirements of s.229(4)
[31] The Commission must be satisfied that Farstad has complied with the requirements of s.229(4) of the FW Act which deals with notifying the AIMPE of their concerns.
[32] In this case the Respondent appropriately conceded that s.230(3)(b) of the FW Act has been complied with. Attachment BV6 to the witness statement of Mr. Venema (Exhibit A3) (which is an email from him to Mr. Williamson dated 7 November 2014) is the evidence on this point.
S. 230(3)(a)(i) - not meeting the good faith bargaining requirements?
[33] In this application this is the critical provision of the FW Act to be considered.
[34] This section of the FW Act requires that the Commission be satisfied that the AIMPE have not met or are not meeting the good faith bargaining requirements.
[35] The good faith bargaining requirements are prescribed in s.228(1). The relevant requirements Farstad submits the AIMPE have not met, are:
“(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining...”
Has the AIMPE:
● failed to give genuine consideration to the proposals of Farstad;
● failed to give reasons for their responses to those proposals; and or
● engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining?
The evidence
Farstad
[36] Mr. Venema’s evidence traversed the history of the negotiations with the AIMPE consistent with the Agreed Chronology filed by the parties. Further, he gave evidence that, in his opinion,
“From the commencement of the negotiations until the conclusion of the 15 October 2014 negotiating meeting in which the AIMPE table its new claims, Farstad afforded the AIMPE representatives with every opportunity to meet, discuss and conclude the Replacement Agreement…. 22
[37] Further, that he,
“… reviewed both the AIMPE’s October and December 2014 Log of Claims and consider there is no point in having further discussions with the AIMPE about those matters because:
(a) The AIMPE’s new claims canvas the same issues that Farstad has discussed with the AIMPE since March 2013 yet departs from in principle agreements reached during that time and/or represents a reversal of any progress that had previously been made between Farstad and the AIMPE;
(b) The AIMPE’s new claims do not represent concessions or change of position which would enable the parties to advance towards reaching an agreement about the terms of the Replacement Agreement. To the contrary, if Farstad was to entertain discussions about the AIMPE’s October and December 2014 Logs of Claims this would only delay and/or derail the process of concluding a Replacement Agreement; and
(c) Farstad has made its Best Offer and cannot agree to the AIMPE’s new claims.
I consider that discussion about either of the AIMPE’s October or December 2014 Logs of Claims would result in nothing more than a further reiteration of a discussion which has been had now almost nineteen times. A further negotiating meeting to discuss the AIMPE’s new claims would be pointless towards reaching an agreement and would only lead to further delays. 23
AIMPE
[38] Mr. Williamson’s evidence was to the following effect:
a) he “considered that the decision of Commissioner Cloghan of the 11 September 2014 an important development in relation to its possible impact upon future negotiations with Farstad and AIMPE’s capacity to engage in protected industrial action, should the need arise in future.” 24
b) he “considered that AIMPE claims in the Farstad negotiations in respect to Foreign Labour, Training and Salaries may in the future be thought to be similar to those in the capital Operators negotiations and [he] was concerned that … This similarity would mitigate against a more speedy resolution of those issues in the Farstad negotiations. I was already concerned with the delay that has already occurred in the negotiations and a large number of outstanding claims had not been agreed.” 25
c) he removed or abandoned a number of outstanding claims; 26
d) he recognises “that the amendments to the AIMPE claim … were late in the negotiations but they were effected with good faith and designed to ensure that the Farstad negotiations would proceed on a more efficient and speedy basis. [He] did not engage in capricious or unfair conduct nor [has he] frustrated, delayed or undermined the collective bargaining process.” 27
Farstad’s submissions
[39] Farstad submitted that:
21. The tabling of the various versions of the AIMPE’s new logs of claims amounts to a failure to give genuine consideration to Farstad’s proposal(s) in breach of section 228(1)(d) of the FW Act, including because:
a) The new log of claims was handed to Farstad at the conclusion of a meeting in which negotiations had progressed such that Farstad had undertaken to give consideration to the matters discussed and provide an updated proposal, and before Farstad made its offer dated 25 September 2014 (Farstad’s 25 September 2014 Offer). 28 The sequence of events at Attachment 1 – Chronology of Events prepared by Farstad reveals it is simply not possible for the AIMPE to have given any consideration to Farstad’s offer before formulating its new log of claims, which: were prepared in advance of the 19 September 2014 meeting; initially handed to Farstad at the conclusion of the 19 September 2014 meeting; and then given to Farstad in substantially the same form again on 15 October and 9 December 2014; and, further
b) The evidence reveals that no reasons or explanation were given to Farstad at the time the new log of claims was tabled (at the end of the 19 September 2014 meeting, during the 15 October 2014 meeting or by email on 9 December 2014) or since. 29 There is simply no evidence that the AIMPE gave consideration to Farstad’s 25 September 2014 Offer in developing any of the versions of its new log of claims.
22. The evidence does not support the contention that the AIMPE was “responding” to Farstad’s proposal(s) because:
a) Upon first tabling the new log of claims, the AIMPE’s only stated justification was that the new log of claims on 19 September 2014 was intended to “reset the bargaining”, if the effect was not to “focus” Farstad’s attention on reaching an agreement on the AIMPE’s terms. 30 The AIMPE stated it believed this was necessary to avoid any adverse impact of the decision in AIMPE v MermaidMarine Vessel Operation Pty Ltd & Ors [2014] FWC 3786 (Commissioner Cloghan’s Decision) on the Farstad negotiations.31 No other justification was given until the hearing of these proceedings; and, further
b) There was never any discussion about or explanation of the new log of claims at the time it was given to Farstad (at the end of the 19 September 2014 meeting, during the 15 October 2014 meeting or by email on 9 December 2014) and as such there is no record that the new log of claims was a response to any proposal(s).
23. In the alternative, even if any version of the AIMPE’s new log of claims is found to have been in response to a Farstad proposal(s), the absence of reasons of itself amounts to a breach of section 228(1)(d).
24. Farstad further submits that the AIMPE has engaged in capricious or unfair conduct that is frustrating, delaying and undermining the collective bargaining process, in contravention of section 228(1)(e) of the FW Act, including by artificially purporting or seeking to ‘reset’ the bargaining as though the many months of bargaining to date had never happened.
....
28. Farstad submits that the AIMPE’s explanation that it was seeking to “modify” existing claims should not be accepted on the basis that:
a) the provision of the AIMPE’s new claims was not a modification to Farstad’s proposals, rather, it was an expanded list of claims which were new, had never been discussed before and/or represented a reversal of the progress that had been achieved in the bargaining at that time;
b) the modifications made by the AIMPE went beyond what was necessary to achieve its purported purpose of addressing issues arising from Commissioner Cloghan’s Decision (which the AIMPE admitted was limited to claims about foreign labour, wages and training); 32 and
c) evidence given by the AIMPE’s witness relating to the status of claims was vague and inconsistent throughout the course of cross-examination.
The AIMPE’s submissions
[40] The AIMPE submitted that:
1. The evidence clearly establishes that, Andrew Williamson considered the decision of Commissioner Cloghan on 11 September 2014 (AIMPE v Mermaid Marine Vessel Operators Pty Ltd & Ors [2014] FWC 3786) to be an important development in relation to its possible impact upon future negotiations with Farstad and AIMPE's capacity to engage in protected industrial action that may, in the future, be contemplated. (Statement of Williamson Exhibit R4, paragraph 9. Transcript PN 526 - 530, 544- 553 and 957- 998)).
2. In that decision the Commission had found that:
- A claim in respect to Foreign Labour which prohibited the use of foreign labour in support of job security was a non-permitted matter (paragraphs 32-25 and 91 to 113).
- A claim in respect to Training which imposed an obligation upon the employers to provide training for engineers which may or may not be needed by the employer, did not relate to the relationship between employer and employee, and accordingly, the AIMPE was not genuinely trying to reach agreement with the employers (paragraphs 34-35 and 114 to 129).
- A claim in respect to Salaries which was a claim for the maintenance of relativities and not a claim for a nominated amount of increase prevented settlement until a third party outcome was known and prevented the Commission from concluding that the AIMPE was genuinely trying to reach agreement (paragraphs 31 and 77 to 90).
3. Williamson considered the claim in the Farstad negotiations in respect to Foreign Labour, Training and Salaries, may be thought to be similar to those decided upon by Commissioner Cloghan and consequently would mitigate against the achievement of a s 437 protected action ballot order.
4. Williamson decided to amend the AIMPE claim against Farstad in respect to Foreign Labour, Training and Salaries and before the meeting of 19 September created the document which became Exhibit A1.
5. Andrew Williamson and the AIMPE have not failed to bargain in good faith. The amendments were made for a very legitimate reason which was identified in the introduction to Ex A1 and explained to Farstad representatives.. They have not acted unfairly or capriciously, and in any event the conduct has not undermined collective bargaining.
Decision in relation to s. 230(3)(a)(i)
[41] Having considered all of the evidence before the Commission and the submissions made by the parties, Farstad has satisfied the Commission, as presently constituted, that, as required by s. 230(3)(a)(i), the AIMPE’s conduct means they have not or are not meeting the good faith bargaining requirements.
[42] The evidence and chronology of events is clear that:
a) the decision of Commissioner Cloghan was handed down on 11 September 2014;
b) in advance of the scheduled 19/9 Meeting Mr. Williamson prepared a new log of claims. I accept his evidence that he did so genuinely out of a belief that it was necessary to do so to address matters contained in Commissioner Cloghan’s decision (for the purposes of ensuring that his members could engage in protected industrial action in the future).
c) the 19/9 meeting occurred. Farstad at least thought the discussions were productive;
d) towards the end of the 19/9 Meeting Farstad indicated a preparedness to make a Best Offer (which it later did on 25 September);
e) at the conclusion of the 19/9 Meeting the AIMPE handed the new log of claims to Farstad;
f) the new log of claims contained matters discussed during the 19/9 Meeting;
g) the new log of claims was not presented on the basis that it should be considered amended by the progress made during the 19/9 Meeting;
h) the new log of claims was again given to Farstad in substantially the same terms on 15 October 2014 and 9 December 2014.
[43] Even if one could forgive the AIMPE the provision of the new log of claims at the end of the 19/9 Meeting, the restatement of it on 15 October and 9 December 2014 does not evidence that the AIMPE:
a) gave genuine consideration to the proposals of Farstad (in particular the Best Offer); or
b) gave reasons for their new log of claims.
[44] In this regard, on 15 October and 9 December 2014, there was a failure on the AIMPE’s behalf in respect of both elements of s.228(1)(d) of the FW Act.
[45] The reason for the new log of claims is obvious; it was intended to future proof the AIMPE in respect of possible future industrial action. The AIMPE wanted to ensure that it could engage in protected industrial action and not fall fowl the issues determined by Commissioner Cloghan. The new log of claims had little to do with an intention to advance bargaining.
[46] However, the Commission, as presently constituted, is not satisfied that the AIMPE’s conduct was capricious or unfair conduct that undermines freedom of association or collective bargaining. That is a step too far and overstates the conduct of the AIMPE. The purpose of the AIMPE’s conduct was to future proof any future industrial action. It did not have the intention of, and did not in fact, undermine freedom of association or collective bargaining. It annoyed Farstad, that is certain; it caused Farstad frustration, but it did not go so far as to breach s.228(1)(e) of the FW Act.
[47] On the evidence before me I am not satisfied that, as at the end of the 19/9 Meeting or when Farstad made its Best Offer, negotiations were as well advanced as Farstad submitted or believed to be the case. I am not satisfied that there was sufficient agreement in principle about any or a substantial number of issues that had been under discussion. I am not satisfied that the parties had made much progress at all in their negotiations over the previous many months of negotiation. Accordingly, the act of restating the new log of claims on 15 October and 9 December 2014 was not capricious (in the sense that it was not impulsive or unpredictable) nor was it unfair having regard to how little progress had been made in the negotiations. The parties were very much still in the “haggling”, albeit at an advanced stage.
[48] S.230 (1)(c) - the Commission is satisfied that it is reasonable in all the circumstances to make the order
[49] Satisfaction that it is reasonable in all the circumstances to make an order is an issue in dispute in this matter. Having found that the AIMPE breached s.229(1)(d) of the FW Act I must further be satisfied overall that I should remedy that conduct by making an order to do so.
[50] In my opinion the draft Orders sought by Farstad only address a potential finding that the AIMPE breached s.228(1)(e) of the FW Act. As is apparent, I have not so found. In my opinion the draft Orders sought by Farstad do not address a finding, as I have made in this matter, that the AIMPE breached s.228(1)(d) of the FW Act. Accordingly, I am not satisfied that it is reasonable in all the circumstances to make the Orders which have been sought.
[51] Consequently, if Farstad wants to press the making of Orders it is invited to file in the Commission and serve on the AIMPE revised draft Orders that have regard to and address the findings in this decision. The Commission will then program the filing and serving of further submissions in relation to the same.
COMMISSIONER
Appearances:
Amanda Mansini for Farstad Shipping (Indian Pacific) Pty Ltd.
Bill McNally for the Australian Institute of Marine and Power Engineers.
Hearing details:
2015.
Melbourne:
January 7, 9.
Final submissions:
2015.
Farstad, 15 January.
The AIMPE, 21 January.
Further submission about application to reopen the matter
2015
The AIMPE, 11 February.
Farstad, 13 February.
1 Transcript PN26-64.
2 Exhibit A3 at 9, Transcript at PN189.
3 Exhibit A3 at 12 & 16, Transcript at PN285 – PN287.
4 Exhibit A6, Transcript PN1227 – 1228.
5 Exhibit R1 at PN8.
6 Transcript at PN522-524, Exhibit A1.
7 Transcript at PN287.
8 Transcript at PN288, PN312 & PN520, Exhibit A1.
9 Exhibit A3 at 17, 28 , BV3 Transcript PN496.
10 Exhibit A3 at 29 and BV8, Transcript PN114 – PN118, PN127 - 162 & PN775 – 777.
11 Exhibit A3 at 18, Transcript PN1517 & PN1527, Exhibit A1.
12 Exhibit A3 at 29 and BV8.
13 Transcript PN770 – PN777, Exhibit A3 at BV5.
14 Exhibit A9.
15 Exhibit A3 at 34 & BV9, Transcript PN113, PN166.
16 Exhibit A3 at 25, 32 and BV6, Transcript PN167 & PN169.
17 Exhibit A3 at 26 & BV7, Transcript PN172 – PN176 & PN907.
18 Exhibit A3 at 34 & BV9, Transcript PN113 & PN163 - PN166.
19 Exhibit A3 at BV4.
20 Exhibit A3 at 21.
21 Outline of Final Submissions on Behalf of the Applicant, 15 February 2015, para 2(a).
22 Exhibit A3, paras 20.
23 Exhibit A3, paras 23 and 24.
24 Exhibit “R1”, para 9.
25 Exhibit “R1”, para 10.
26 Exhibit “R1”, para 12.
27 Exhibit “R1”, para 13.
28 PN519.
29 PN1175, PN1179, PN1180 and PN1197.
30 Exhibit A3 at paragraph 18; PN534.
31 Witness Statement of Andrew Williamson at paragraphs 9 and 10; PN520 and PN538.
32 Exhibit R1 at 8.
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