Maritime Union of Australia, The v Farstad Shipping (Indian Pacific) Pty Ltd
[2009] FWA 342
•21 SEPTEMBER 2009
Note: An appeal pursuant to s.604 (C2009/10677) was lodged against this decision and the order arising from this decision [PR989338] - refer to Full Bench decision dated 17 March 2011 [[2011] FWAFB 1686] for result of appeal.
[2009] FWA 342
The attached document replaces the document previously issued with the above code on 21 September 2009.
The document was amended to include the correct appearances at the hearing.
Lisa Stewart
Relief Associate to Commissioner Larkin
Dated: 24 September 2009.
[2009] FWA 342 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Farstad Shipping (Indian Pacific) Pty Ltd
(B2009/10668)
COMMISSIONER LARKIN | SYDNEY, 21 SEPTEMBER 2009 |
Section 437 application for a protected action ballot order – whether applicant genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[1] The Maritime Union of Australia (MUA) have applied to Fair Work Australia (FWA) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (The Act) in relation to its members employed by Farstad Shipping (Indian Pacific) Pty Ltd (Farstad) as cooks, caterers, integrated ratings and seafarers in its offshore oil and gas operations. Farstad oppose the application on the grounds that the MUA are not genuinely trying to reach an agreement.
[2] Section 443(1) provides as follows:
“FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA 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.”
[3] The MUA is the bargaining representative of employees who will be covered by the proposed enterprise agreement, in accordance with the requirements of s.176(1)(b) of the Act 1, and have made application under s.437 of the Act. The MUA have, within 24 hours of making the application, provided a copy of the application to Farstad and the Australian Electoral Commission as required by s.440 of the Act2. The MUA application specified the group of employees to be balloted and the questions to be put to those employees. The current agreement regulating the employment of this group of employees reached its nominal expiry date on 21 March 2009 and the MUA application under s.437 was filed on 16 September 2009 satisfying the requirements of s.438(1) of the Act.
[4] The question to be addressed in this decision is whether FWA is satisfied that the MUA has been, and is, genuinely trying to reach an agreement with Farstad, the employer of the employees who are to be balloted.
[5] The background to the matter can be found in the witness statement of Mr Warren Smith, Assistant National Secretary of the MUA. Mr Smith was not required for the purpose of cross examination. Mr Peter Barrow, General Manager Human Resources for Farstad filed a witness statement and was not required for cross examination. In his statement Mr Barrow agreed with Mr Smith’s chronology of events, however, he disputed certain aspects in relation to purpose and content of discussions.
[6] Mr Smith stated that the MUA served a log of claims on employers in the offshore oil and gas operations, which included Farstad, in November 2008. There were industry meetings in November and December of 2008 and January and July of 2009.
[7] On 10 July 2009 Mr Barrow wrote to the MUA seeking discussions on an enterprise basis in relation to a renewed enterprise agreement. Mr Barrow indicated that Farstad would be available to meet anytime from 21 July 2009. 3
[8] The MUA responded to Mr Barrow’s correspondence on 22 July 2009 as follows:
“Dear Peter.
RE: FARSTAD ENTERPRISE AGREEMENT
Thank you for your correspondence date 15 July 2009. Following the industry meeting in Sydney on 10 July 2009 and your offer contained in the correspondence mentioned above, the Maritime Union of Australia has given consideration to commencement of negotiations with your organisation however our intention is to negotiate as a single Union with your company.
With this in mind, could you please respond to us within fourteen (14) days on the following issues as we wish to negotiate an Agreement that takes into account the individual circumstances of your business:
A. What is the normal expiry date that would best suit your business, taking into account the specific individual needs of your business?
B. What claims do you make in respect of wages and conditions that suit the individual needs of your business and which are to be determined as much as possible with reference to your enterprise as indicated in the industry response to our industry claims.
C. What times then suit your needs in respect to meeting to discuss these specific claims in relation to your business?
In respect to the ongoing negotiations, the Union will be represented by Mr Warren Smith (Sydney Branch Secretary) and Mr David Cushion (Victoria Assistant Branch Secretary).
Yours sincerely
Mick Doleman
Assistant National Secretary.” 4
[9] The parties met on 12 August 2009. Mr Smith stated that the meeting was to discuss the MUA’s claims as they related to Farstad. He stated that the MUA tabled a document “that had been prepared by AMMA during the industry discussions and dated 19 February 2009 which comprised the employers response and the status of the MUA claims made in November 2008”. 5Mr Smith stated that the document was identified as the starting point for the Farstad agreement negotiations. Mr Smith stated; “The MUA also said that it would modify the claim to remove claims that were not relevant to Farstad. A timetable for future meetings was also set down at that meeting. We were to meet again on 1 and 2 September 20096. Mr Barrow, in his statement, disputed the nature of this meeting and said that the meeting was “an introductory meeting in which I gave a presentation to the meeting on the Farstad business. There was no substantive negotiation or exchange of negotiating positions”.7
[10] Mr Smith stated that on 1 September 2009 he emailed to Mr Barrow the MUA log of claims. Mr Barrow agreed that the log was received on 1 September 2009 at 2.48pm. The meeting between the parties scheduled for 1 September 2009 did not occur and they met on 2 September 2009.
[11] At the meeting on 2 September 2009 the parties discussed the MUA log of claims and claims tabled by Farstad. Mr Smith stated that of the Farstad’s five claims “4 were generally agreed to in principle and one was not agreed”. 8Mr Barrow, in his statement, stated that “I agreed to provide the MUA representatives with an annotated version of the MUA log of claims which would record the discussions”.9
[12] There was a further meeting held between the parties on 9 September 2009 whereby Farstad provided to the MUA their formal response to the MUA claims of 2 September 2009 10. Mr Barrow stated:
“At that time, there was no discussion of enterprise agreement content or positions other than to consider the schedule of meetings. I asked Mr Smith whether the MUA would be available to meet during the week of 14-18 September 2009 – Mr Smith said that he was not available. The meeting scheduled for 21 September 2009 was confirmed.
The state of the negotiations as I understand the position is that there are a number of claims, which have had some preliminary discussion, the extent of which is reflected on WS3. However, there has not been sufficient discussion for Farstad to understand which of the 118 claims are the substantive issues that will be central to the making of any agreement, and what would be required to reach agreement on those matters from the MUA’s perspective.” 11
[13] I have considered the material tendered and the submissions made during the hearing of this matter. I am not persuaded that the MUA have not been or are not genuinely trying to reach an agreement with Farstad.
[14] The MUA have not simply served a log of claims on the employer and then applied for a protected action ballot. Meetings have occurred on an industry basis and on an enterprise specific basis over a period of time.
[15] Farstad argue that the negotiations were not sufficiently advanced to really show that the parties have “rolled up their sleeves and started a real exchange of negotiations”. 12 Further, at least from Farstad’s perspective, they still don’t understand what the claims are. The argument was that the parties were at the preliminary point of discussions in the exchange of their respective claims. There had not been, it was submitted, a proper opportunity to understand the specifics of costs, the effect of agreeing to the claims and alternatives on which an agreement could be reached.
[16] The legislation requires that FWA be satisfied that the bargaining representative who has applied for a protected action ballot is and has been genuinely trying to reach an agreement. How that satisfaction is obtained will depend upon the facts and circumstances of the particular case before FWA.
[17] I am not persuaded that Farstad lack understanding of the claims put. Further, Farstad have made counter claims in the parties’ negotiations for an agreement. There have been industry meetings since November 2008, which Mr Barrow in his evidence does not dispute. The MUA’s letter to Mr Barrow of 22 July 2009 13, in my view, clearly indicates a genuine desire to reach an agreement having regard to Farstad’s business needs. The parties have met on 12 August, 2 and 9 September 2009. A further meeting is scheduled for 21 September 2009 and, on Mr Barrow’s evidence, that meeting is confirmed. The protection action ballot does not close until 9 November 2009, which, in my view, provides to the parties further opportunities in which to meet and further discuss their respective claims.
[18] I am satisfied that the MUA has been, and is, genuinely trying to reach an agreement with Farstad, the employer of the employees who are to be balloted. I am satisfied that the MUA’s application should be granted and an order made substantially in the terms proposed by the MUA. An order was issued on 21 September 2009.
COMMISSIONER
Appearances:
Mr A. Slevin of Counsel with Ms J. White and Mr W. Smith of the Maritime Union of Australia (Applicant).
Mr T. Lange, Solicitor,Blake Dawson Waldron with Mr P. Barrow and Mr B. Venema of Farstad Shipping (Indian Pacific) Pty Ltd (Respondent).
Hearing details:
2009.
Sydney;
September 18.
1 Exhibit A3.
2 Exhibits A1 and A2.
3 Exhibit A3 at 7 and attachment WS1.
4 Exhibit A3 at attachment WS2.
5 Exhibit A3 at 10.
6 Ibid.
7 Exhibit R1 at 3.
8 Exhibit A3 at 13.
9 Exhibit R1 at 5.
10 Exhibit A3 at 14.
11 Exhibit R1 at 6 and 7.
12 PN93.
13 Exhibit A3 at WS2.
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