Maritime Union of Australia v DP World (Fremantle) Limited

[2011] FWA 6514

[2011] FWA 6514

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Maritime Union of Australia
v
DP World (Fremantle) Limited
(B2011/3426)

COMMISSIONER CLOGHAN PERTH, 22 SEPTEMBER 2011

Proposed protected action ballot by employees of DP World (Fremantle) Ltd.

[1] On 14 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 DP World (Fremantle) Ltd (“the Employer”) at its Fremantle operations in Western Australia and represented by the MUA as bargaining representative.

[3] The Employees to be balloted have their conditions of employment regulated, in part, by the:

● DP World Fremantle Enterprise Agreement 2008 (“the Agreement”).

[4] The nominal expiry date of the Agreement is 30 June 2011.

[5] The applications were heard and determined on 19 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 be issued with reasons to follow. These are the written reasons for issuing the Order.

[6] The Applicant was represented by Mr Edmonds of counsel and evidence given by Mr Adrian Evans, Deputy Secretary, Western Australian Branch of the MUA. The Employer was represented, by telephone, by Ms Harriet Eager of Counsel.

[7] Mr Evans gave uncontested evidence for the MUA as bargaining representative for employees who will be covered by a replacement enterprise agreement for the Agreement.

[8] Mr Evans gave evidence that the proposed replacement agreement is separated into Part A and Part B. The terms of Part A reflects common outcomes at five terminals around the nation. The terms of Part B reflect Fremantle specific outcomes of negotiation at a local level.

[9] Through Mr Evans, the Applicant tendered an Employer’s document entitled “Enterprise Agreement - Employee Update No 5” 1. The document, from the Employer’s perspective, sets out that negotiations have been occurring for five (5) months, the number of meetings, its frustration at the recent national negotiations, confirmation that the MUA is open to options to progress negotiations and the date of the next meeting in early October.

[10] Mr Evans gave a summary of negotiations at the local level. Approximately five (5) meetings have been held. The MUA has articulated its claims. The Employer provided what Mr Evans described as an “interest and issues paper” 2. The Employer has detailed its claims. The MUA claims have been focused on the roster at Fremantle. Both parties have dropped some of their original claims and there has been agreement “in principle” on some claims.

[11] Mr Evans concluded that the term of the agreement had been a “sticking point”, but that has now been resolved. Although there are a number of outstanding issues, wage increases remain a major matter to be resolved.

EMPLOYER’S RESPONSE TO BARGAINING

[12] The Employer advised the Tribunal that it does not oppose the application for the Order as amended by the MUA. However, it placed on record its concerns regarding the negotiations. Further, that while it did not oppose the application on this occasion, the Employer will adopt a case-by-case approach to further applications. Finally, the Employer would consider, if necessary, the provisions of the FW Act relating to the suspension or termination of protected industrial action.

CONCLUSIONS

[13] I am satisfied that the “procedural” requirements of the FW Act in sections 437, 438 and 440 have been met.

[14] Having considered the relevant provisions of the FW Act, oral evidence and submissions by the MUA and the fact that the Employer is not opposing the application, I determined that the Applicant has been, and is genuinely trying to reach agreement with DP World (Fremantle) Ltd; on this basis, I issued Order PR514787 on 19 September 2011.

COMMISSIONER

Appearances:

Mr L Edmonds for the Maritime Union of Australia.

Ms H Eager of Minter Ellison for DP World (Fremantle) Ltd.

Hearing details:

2011:
Perth
19 September

 1   Exhibit A1

 2   PN 36

Printed by authority of the Commonwealth Government Printer

<Price code A, PR514875>