Maritime Union of Australia, The v Fremantle Port Authority
[2009] FWA 1129
•18 NOVEMBER 2009
[2009] FWA 1129 |
|
DECISION |
Fair Work Act 2009
s.437 – Application for a protected action ballot order
v
Fremantle Port Authority
(B2009/26)
COMMISSIONER WILLIAMS | PERTH, 18 NOVEMBER 2009 |
Proposed protected action ballot by employees of Fremantle Port Authority.
[1] The Maritime Union of Australia (MUA) has applied to Fair Work Australia (FWA) for an order for a protected action ballot to be conducted.
[2] The ballot is to determine whether employees of the Fremantle Port Authority (FPA) wish to engage in particular protected industrial action for a proposed enterprise agreement. The application is made under s.437 of the Fair Work Act 2009 (the Act).
[3] FWA’s role in determining applications for a protected action ballot order is set out in Section 443 of the Act.
“s. 443 When FWA must make a protected action ballot order
(1) 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.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”
[4] Further s. 441 (2) states:
“ (2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.”
[5] Section 440 requires that within 24 hours of making an application, the applicant must give a copy to the employer and the Australian Electoral Commission or person who the applicant wishes to be the ballot agent. There is no dispute that the MUA has complied with section 440.
[6] In this case FWA is required to make a protected action ballot order if this application has complied with paragraph 443(1)(a) and it is satisfied that that the conditions in paragraph 443(1)(b) have been met.
Background
[7] This is the second application by the MUA for a protected action ballot of these employees. The first application was dealt with in a decision issued by myself on 3 November 2009 1.That decision found that the MUA had not satisfied the jurisdictional requirements and the application was dismissed. The reasons for this were set out in that decision at paragraphs [47] and [48] as follows:
“[47] Considering the evidence and case law above I find that the labour flexibility claim made by the MUA is not a matter pertaining to the relationship between the FPA and the FPA’s employees whom would be covered by an agreement. This claim is not about permitted matters as defined in s. 172 of the Act.
[48]Consequently I find that the MUA is not genuinely trying to reach an agreement. As a result the jurisdictional pre-requisite in s. 443(1)(b) for making the protected action ballot order sought by the MUA is not satisfied and on this ground the application must be dismissed.”
[8] That decision also considered other grounds on which the FPA had objected to the application namely that:
- The application is not properly made because the questions proposed do not adequately specify the nature of the proposed industrial action and so do not comply with s. 437(3)(b).
- The MUA are pursuing claims regarding back pay and the retrospective operation of the proposed agreement which are claims that cannot be included in an agreement and so they have not been and are not genuinely trying to reach an agreement.
[9] Both of those grounds of objection were rejected.
[10] In response to the current application the FPA object to the application on the following grounds:
- The timing of this application lodged on 4 November 2009, the day immediately following the decision in the first application, demonstrates the MUA has not been and is not genuinely trying to reach an agreement.
- The back pay claim is a claim for a non-permitted matter and so the MUA has not been and is not genuinely trying to reach an agreement.
- The application is not properly made because the questions proposed do not adequately specify the nature of the proposed industrial action and so do not comply with s. 437(3)(b).
- The application is an abuse of process.
[11] The FPA have also applied under s. 443(5) for the period of written notice referred to in s. 414(2)(a) to be longer than three working days and preferably be seven working days.
[12] Evidence was given for the MUA by Mr Tracey, the Assistant Branch Secretary of the MUA, and for the FPA by Mr Gray, the Harbour Master. Mr Gray’s evidence was limited to explaining the impact on the FPA and third parties of industrial action and the desirability of greater notice of industrial action being given. In addition the parties agreed that the evidence given, the exhibits tendered and the submissions made by the parties in the first application should be taken in to consideration in this application and I did agree to this approach.
Recent developments
[13] The first application was heard on 26 and 27 October 2009. Following this there were a series of emails exchanged between Mr Tracey and Mr Wade from the FPA 2. The chronology of events including these emails relevantly is as follows:
1. An email from Mr Tracey to Mr Wade Wednesday 28 October 2009, 5:30 pm.
Subject: Re draft copy of the modified proposed agreement
“Steve
There appears to be some confusion arising out of the case that has been run on the last 2 days and I would like to make the position of the MUA clear.
Regarding the flexibility of labour agreement that both you and I agreed needed to be changed before being inserted into the agreement. Can we work on a draft clause that omits anything that could be deemed non-permitted matters and clearly removes any reference to restrictions on the use of contractors. I believe we could we do so when considering your response to the status quo clause and draft individual flexibility clause I sent through earlier this month.
Regarding the back pay claim. I wish to state that we maintain a claim for monies to be paid when the agreement is signed that is calculated with reference to the monies that would have been paid had we got an agreement when this current agreement expired. That is we use the applicable increases in wages and allowances and then use that to calculate what we would have earned had the increase been applied from the date of expiry of the agreement. This back pay claim will come in as a sign on bonus and we state that we understand that the agreement itself is not retrospective.
Could you also respond to the counter offers I made in the recent meeting with yourself and could we meet soon to discuss. Early next week would be good.
Regards.” (sic)
2. An email from Mr Wade to Mr Tracey Thursday 29 October 2009, 1:12 pm
Subject: Re draft copy of the modified proposed agreement
………
.……..
“I don't see much value in meeting just yet until the tribunal is able to offer some certainty as to the current state of the matters between us. Fremantle Port is now, however, examining a number of matters associated with this agreement making process and will advise you of any relevant outcomes.”
3. The decision of FWA in B2009/10869 was faxed to the parties the afternoon of Tuesday 3 November 2009.
4. An email from Mr Tracey to Mr Wade Tuesday 3 November 2009, 9:04 pm
Subject: Re draft copy of the modified proposed agreement
“Steve
Having read your response to my e-mail and taking into account your previous stated stance on the issue of the labour flexibility clause I wish to indicate that the MUA, having regard for the position of the FPA and also the fact that the previous claim could be considered to contain non-permitted matters, will withdraw this claim. As per the position of the FPA we will seek to address any matters that arise through the consultation committee as we currently do.
Could you please indicate when your next available to meet so we can progress the finalisation of this agreement. A response to the issues put to you at our most recent meetings would also be appreciated.”
5. This application B2009/26 lodged on the morning of Wednesday 4 November 2009.
6. MUA Update 3 3provided to affected employees by the MUA Wednesday 4 November 2009.
7. An email from Mr Wade to Mr Tracey Thursday 5 November 2009, 3:30 pm
“Will,
I have been out of e-mail and mobile contact for Tuesday and Wednesday and have just read your e-mail, and the others.
Thank you for the confirmation regarding the removal of the flexibility of labour clause from the claim.
On the other matter of our understanding prior to last week's tribunal regarding the backdating of the new agreement to April that we thought you were seeking, and taking into account the findings of the Commissioner this week, I assume that you will not be seeking any backdating of the Agreement.
Considering the various matters that have now occurred including your recent application to FWA I will get back to you next week regarding meetings.”
8. An email from Mr Wade to Mr Tracey Tuesday 10 November 2009, 12:37 pm, explaining that the FPA wished to meet to discuss the agreement but first sought clarification on some issues mentioned in MUA Update 3.
9. Hearing of this application Thursday 12 November 2009. (The applicants representatives were not available for a listing on Friday 6 November and requested the matter be listed the following week.)
Consideration
Genuinely trying to reach an agreement – the timing of this application.
[14] The FPA rely on and repeat submissions made in the first application regarding their view that the MUA was obliged to respond to a draft agreement put forward by the FPA and had not in its view done so, and so was not at the time the first application was made and still is not genuinely trying to reach an agreement. 4
[15] The Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 5
considered the correct approach to determine whether an applicant has been and is genuinely trying to reach an agreement and explained that :
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s. 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s. 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[16] In my view, it is not the correct approach to only consider the applicant’s actions at a narrow point in time, effectively in isolation, and ignore all that has gone before and after, as the respondent urges the tribunal to do with this submission. As the Full Bench explained, all the relevant circumstances of the particular negotiations must be assessed. Given the history of negotiations and the circumstances I do not accept the MUA was obliged to respond as the FPA submits it was at any particular time to any particular FPA documents. In my view there is no substance to this argument by the FPA.
[17] In addition the FPA argue that the fact that this application was lodged the day after the decision in the first application, which decided that the MUA had not been genuinely trying to reach agreement, should lead to the conclusion that at the time of lodging this application the MUA again were not genuinely trying to reach an agreement.
[18] In considering this submission I note again the correct approach as found by the Full Bench above involves a finding of fact by reference to all the circumstances of the negotiations.
[19] The FPA highlights the particular circumstance that this application was filed the day after the first decision was issued. I agree this is a relevant circumstance to be considered.
[20] However this is not to be considered in isolation. I observe that the decision on the first application that the MUA had not been genuinely trying to reach an agreement was solely because on one particular claim they had been pursuing being a non-permitted matter.
[21] There was no evidence in the first application nor has there been any evidence brought in this application supporting a conclusion that more generally the MUA have not been and are not genuinely trying to reach an agreement.
[22] It is also relevant that on the 28 October 2009 Mr Tracey on behalf of the MUA had explained the MUA position as follows:
“Can we work on a draft clause that omits anything that could be deemed non-permitted matters and clearly removes any reference to restrictions on the use of contractors.”
[23] The evidence is that on 28 October 2009 a full week before this application was lodged, it was clear that the MUA did not wish to seek any restrictions on the FPA's use of contractors and more broadly were not claiming anything regarding contractors that might be viewed as a non-permitted matter. Whilst the tribunal decision came out after this date the MUA had already shifted ground in its negotiations with the FPA and expressly was not pursuing non-permitted matters with respect to contractors.
[24] This of course predates the MUA's decision to totally withdraw any claim to do with labour flexibility which was communicated to the FPA by Mr Tracey the same day that the decision on the first application was issued being 3 November 2009.
[25] It is also clear from the email interactions between Mr Tracey and Mr Wade that the MUA was seeking to progress negotiations from 28 October 2009 onwards including seeking an early meeting with the FPA.
[26] In the right circumstances it may be arguable that following a decision that an applicant has not been genuinely trying to reach an agreement an extended period of time would need to pass before a second application could be lodged for the tribunal to be satisfied that the applicant has been and is then genuinely trying to reach an agreement. Such circumstances might be where the applicant initially failed the ‘genuinely try test’ because its behaviour over time, for example refusing to meet, refusing to detail its claims or refusing to respond to the other party was the basis for finding that the applicant was not genuinely trying to reach an agreement. It may then be reasonable to argue that an extended period of time needs to pass so that it can be seen whether or not that applicant has remedied its deficient negotiating behaviours. That of course is not the situation here.
[27] Here the MUA, by expressly revising its claim regarding contractors on 28 October 2009, was as of this date genuinely trying to reach agreement. This is not a situation where more time needs to pass to assess whether the MUA is genuinely trying to reach an agreement. It is also relevant that the decision of the tribunal on the first application issued on 3 November 2009 made findings only about the negotiations up to and including the last day of that hearing, 27 October 2009.
[28] Having considered all of the relevant circumstances which include the full history of the negotiations between the parties over an extended period of time, the earlier decision of FWA on the first application by the MUA, the actions of the MUA since 27 October 2009 including the communications between the MUA and the FPA and finally considering the lodgement of this application on 4 November 2009, I have decided that the applicant has been and is genuinely trying to reach an agreement.
Genuinely trying to reach an agreement – the back pay claim.
[29] The FPA rely on and repeat the submissions made in the first application regarding their view that the back pay claim is for a non-permitted matter and therefore the MUA are not genuinely trying to reach an agreement.
[30] It is submitted the payment is not for work done rather it can be characterised as being in consideration for making the agreement and so it is not a matter pertaining to the employment relationship.
[31] The evidence is that on 28 October 2009 Mr Tracey put the MUA’s position on the back pay claim to the FPA in the following terms:
“Regarding the back pay claim. I wish to state that we maintain a claim for money is to be paid when the agreement is signed that is calculated with reference to the monies that would have been paid had we got an agreement when this current agreement expired. That is we use the applicable increases in wages and allowances and then use that to calculate what we would have earned had the increase been applied from the date of expiry of the agreement. This back pay claim will come in as a sign on bonus and we state that we understand that the agreement itself is not retrospective.”
[32] In the decision on the first application I decided that this claim was a claim for money not for the retrospective operation of the agreement and I did not accept the argument of the FPA that the substance of the claim is such that I should find the claim is not a permitted matter within the meaning of s.172.
[33] The 28 October 2009 email from Mr Tracey confirms that the MUA are claiming an amount of money. Whilst no amount has been specified the calculation as Mr Tracey explained is based on the quantum of pay increase in any new agreement and the time taken, since the nominal expiry date of the current agreement has passed, to negotiate a new agreement.
[34] The negotiation by an employer and that employer’s employees of a new agreement under the Act does in my view itself pertain to the relationship between the employer and that employer’s employees. That being the case a claim where the subject matter is about the negotiations will be a permitted matter. In my view a claim for money that is based on the time taken to negotiate a new agreement and the quantum of increases in a new agreement is also therefore about a matter pertaining to the employment relationship and so is a permitted matter.
[35] The claim for back pay does not lead to a conclusion that the MUA is not genuinely trying to reach an agreement.
The questions – s. 437(b).
[36] The questions this application proposes to be put to the employees are the same as those that were considered in the first application.
[37] Each of the four questions includes a preamble asking employees whether they authorise industrial action for the purposes of advancing claims in the negotiation of an agreement. Each question then ends as follows:
“1. an unlimited number of stoppages of work of 4 hours duration?
2. an unlimited number of stoppages of work of 12 hours duration?
3. an unlimited number of stoppages of work of 24 hours duration?
4. an unlimited number of stoppages of work of 48 hours duration?”
[38] The FPA repeat their objection to these questions made in the first application. The FPA at the hearing of this current application provided a written outline of further submissions on this issue.
[39] The FPA submit in the decision on the first application that the tribunal did not expressly address whether it was necessary for employees to be informed about whether one form of proposed industrial action would be consecutive or not, or both consecutive and intermittent, with the same form or different forms of the proposed industrial action. The FPA maintains that to comply with s. 437 (3) (b) the questions to be put to the employees must deal with this matter.
[40] The FPA argue that the questions proposed simply describe a form of industrial action, namely stoppages of work rather than the “nature” of the proposed industrial action which is what is required by s. 437 (3) (b).
[41] I have considered these additional submissions and am not persuaded that it is necessary for employees to be informed as to whether the different periods of stoppages of work would be consecutive or not, or indeed whether they would be both consecutive and intermittent.
[42] The questions do allow employees to understand that they are being asked to consider agreeing to stoppages of work ofvarying durations. That in my view is sufficient to satisfy the requirements of the s. 437 (3) (b).
[43] The FPA also object to the use of the word unlimited in the questions as was the case in the first application. I remain of the view that there is no reason to depart from the earlier decisions of the tribunal on the issue of such wording and I am satisfied that the questions in this application meet the requirements of s. 437 and s. 443 of the Act.
Abuse of process
[44] The FPA submit that making this second application for a ballot order is an abuse of process. The FPA argue that there is an inference that can be drawn here that the primary motivation for this application is to take industrial action and not actually industrial action in connection with trying to reach an agreement. The FPA argue that this inference can be drawn because of the precipitous nature, in the circumstances, of this application.
[45] The FPA referred to a recent decision of the High Court in Jeffrey & Katauskas Pty Limited v SST Consultancy Pty Ltd & Ors 6, and drew attention to the majority of their Honours French CJ, Gummow, Hayne and Hannan JJ in particular at paragraph 28 as follows:
“The term "abuse of process", as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed[43]. In Walton v Gardiner[44] the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police[45] that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be "manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people". This does not mean that abuse of process is a term at large or without meaning[46]. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment"[47].”
[46] In this case the Act establishes a process that allows employees to choose whether or not they will authorise protected industrial action for a proposed enterprise agreement. The first application under the Act for these employees failed. In the wake of the proceedings and decision on its first application the MUA changed its position by dropping the labour flexibility claim that caused its first application to be dismissed. Unsurprisingly in my view the MUA has again made application as is provided for under the Act for a protected action ballot order. The Act sets particular statutory prerequisites to the granting of such applications. There is nothing in the Act to support a view that an applicant whom has been unsuccessful in meeting these prerequisites in one application is prevented from making another later application as has occurred here.
[47] I have found that the MUA has been and is genuinely trying to reach an agreement. This application is not manifestly unfair to the FPA and does not bring the administration of justice into disrepute. There is no basis to conclude the MUA action in making this fresh application is an abuse of process.
Notice of industrial action – extraordinary circumstances.
[48] The FPA made an application during the hearing of this matter for the written notice period that is required to be provided to the FPA before protected action is taken to be increased from the statutory requirement of 3 working days to 7 working days. Section 443(5) provides discretion for the tribunal to require such a longer period of notice as follows:
“s. 443 When FWA must make a protected action ballot order
(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”
[49] Evidence was provided by the FPA's harbour master Mr Gray who explained the consequences of protected industrial action occurring for the FPA itself and for third parties including the ships en route to Fremantle, the shipping agents involved with those vessels and their customers with incoming or outgoing cargo for these vessels. Mr Gray explained the obvious benefits for all of those affected in being given more notice of that industrial action occurring. Such extended notice would allow in some instances ships en route to Fremantle to divert to other ports and for customers to tranship their cargo to other ports rather than have it languishing on the docks at Fremantle.
[50] The FPA argue that this evidence demonstrates that there are exceptional circumstances justifying a longer period of written notice being required.
[51] What is meant by exceptional circumstances was considered in a decision of Vice President Lawler when considering a similar provision of the previous legislation in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Australian Postal Corporation 7 at paragraph [10],
“…..In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
[52] In cross-examination Mr Gray acknowledged that the circumstances he had explained exist in Fremantle were similar to that in other Australian ports.
[53] There is no doubt from the evidence that if protected industrial action occurs this will cause disruption and economic damage to the FPA, some shipping companies and the customers of some of those shipping companies. There is no evidence that the circumstances at this time mean the amount of economic damage or the extent of the disruption would be exceptional compared to other times. There is no evidence that the circumstances are different for the FPA compared to similar port authorities around the country. There is no evidence that the extent of economic damage that would be caused by protected industrial action to any of those affected would be extreme or disproportional. Consequently the circumstances here are not in my view out of the ordinary course, unusual, special or uncommon.
[54] With respect to the proposed industrial action that is the subject of the protected action ballot there are no exceptional circumstances justifying the period of written notice being extended.
[55] Given my findings above I am satisfied that this application meets the requirements of s.443(1) and so a protected action ballot order must be made. An appropriate order will now be issued.
COMMISSIONER
Appearances:
Mr. L Edmonds of Unity Legal for Maritime Union of Australia
Mr. T Caspersz of Jackson McDonald Lawyers for Fremantle Port Authority
Hearing details:
Perth:
2009
November 12.
1 PR990399
2 Exhibit MUA1 and Exhibit FPA1
3 Exhibit FPA1
4 Transcript B2009/10869 paragraphs 783, 838 and 943
5 (C2009/10480)
6 (2009) HCA 43
7 (BP2007/3201) PR979157
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