Maritime Union of Australia, The v P & O Automotive & General Stevedoring Pty Ltd
[2011] FWA 6645
•3 OCTOBER 2011
[2011] FWA 6645 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Maritime Union of Australia, The
v
P & O Automotive & General Stevedoring Pty Ltd
(B2011/3447)
COMMISSIONER CLOGHAN | PERTH, 3 OCTOBER 2011 |
Proposed protected action ballot by employees of P & O Automotive & General Stevedoring Pty Ltd.
[1] On 20 September 2011, the Maritime Union of Australia (MUA) (“the Applicant”) made application to Fair Work Australia (FWA) for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).
[2] The employees to be balloted are employed by P&O Automotive & General Stevedoring Pty Ltd at its Port of Bunbury operations (“the Employer”).
[3] Pursuant to s.586(a) of the FW Act, the Applicant made application to amend its application and for the name of the Respondent Employer “Julia Swift” to be deleted and “P&O Automotive & General Stevedoring Pty Ltd” be inserted in lieu. I considered the amendment appropriate and the application was amended accordingly.
[4] The employees to be balloted have their conditions of employment regulated, in part, by the:
● P&O Automotive & General Stevedoring Pty Ltd and Maritime Union of Australia Union Collective Agreement Bunbury 2008 (“the Agreement”).
[5] The nominal expiry date of the Agreement is 30 June 2011.
[6] The application was heard and determined on 22 September 2011. At the conclusion of the hearing, I made a determination that the MUA had satisfied the provisions of the FW Act and an Order should issue. These are the written reasons for issuing the Order.
[7] At the hearing, the MUA was represented by Mr Edmonds of counsel and evidence was provided by Mr W Tracey, Assistant Secretary and Mr D Cain, Organiser, Western Australian Branch of the MUA.
[8] The Employer advised that it would not be appearing at the hearing.
THE APPLICANT’S CASE
[9] Mr Tracey gave evidence that the proposed replacement agreement is structured in two parts. Part A is negotiated at a national level and the terms provide consistency across all facilities 1. Mr Tracey stated that there are “some 15 or 16 facilities across the country”2.
[10] Mr Tracey is responsible for Western Australian ports in the Part A negotiations.
[11] Prior to face to face meetings which commenced on 12 December 2010 3, both parties exchanged information on their respective positions in the forthcoming negotiations4.
[12] Mr Tracey gave evidence that, to date, there had been approximately 24 days of negotiations 5. Meetings tended to occur in episodic fashion6.
[13] The month of February was primarily spent with both parties exchanging information to justify their position on the classification structure 7.
[14] While there was a desire to complete negotiations in April, it was unsuccessful 8.
[15] Despite this unsuccessful deadline, the parties continued negotiations and Mr Tracey gave evidence that he considered “two thirds” 9 of the proposed agreement has been finalised “in principle”.
[16] Mr Tracey explained that the parties had adopted a process of drafting clauses on terms as “in principle” agreement is reached.
[17] Further meetings are programmed. However, the parties remain apart on some key issues such as classification structure, terms and conditions applying to casuals, the level of casuals, payments to employees who have reached their accumulated hours, and the MUA’s desire for a more stable permanent workforce 10.
[18] Mr Tracey asserted, in evidence, that the MUA had conceded ground on a number of issues 11.
[19] Mr Cain gave evidence regarding negotiations at Part B or local negotiations for the Port of Bunbury.
[20] Mr Cain gave evidence that there had been five (5) meetings scheduled, of which only three (3) went ahead. However, the discussions have been lengthy 12.
[21] Mr Cain gave evidence of the MUA’s 35 claims and the main “sticking point” is the Union’s desire to have parity between Bunbury and Fremantle ports 13. Mr Cain asserted that the difference in payments at the two parts is approximately 10 to 12 per cent14. The Employer’s position is to oppose parity of conditions between the ports and an impasse exists15.
[22] Mr Cain gave evidence of the sharing of information by email and the MUA’s genuine desire to reach agreement.
EMPLOYER’S RESPONSE TO APPLICATION
[23] Mr Pearse, for the Employer, advised my Associate by telephone that the Employer would not be making any submissions and therefore not appearing at the hearing.
[24] In not contesting the application, I adopted the approach that the Employer intends not to dispute the Applicant’s evidence and/or provide any additional facts. Shortly put, it is a matter for the Tribunal to accept or reject the sufficiency and appropriateness of the submissions and evidence of the MUA and make an order accordingly.
CONCLUSIONS
[25] I was satisfied that the procedural requirements of the FW Act in sections 437, 438 and 440 have been met.
[26] Having considered the relevant provisions of the FW Act, oral evidence, submissions by the MUA and the Employer’s position on the application, I determined that the Applicant has been and is genuinely trying to reach agreement with P&O Automotive & General Stevedoring Pty Ltd at its Port of Bunbury operations; on this basis, I issued Order PR514940 on 23 September 2011.
COMMISSIONER
Appearances:
Mr L Edmonds, of W.G. McNally Jones Staff Lawyers for the Applicant.
No appearance by the Respondent.
Hearing details:
2011:
Perth
22 September.
1 PN 41
2 PN 41
3 PN 42
4 PN 42
5 PN 43
6 PN 43
7 PN 43
8 PN 43
9 PN 43
10 PN 43
11 PN 43
12 PN 16
13 PN 18
14 PN 20
15 PN 21
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