Maritime Union of Australia v Maersk Crewing Australia Pty Ltd

[2017] FWC 5369

[2017] FWC 5369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Maritime Union of Australia
v
Maersk Crewing Australia Pty Ltd
(B2017/969)

DEPUTY PRESIDENT BULL PERTH, 17 OCTOBER 2017

Proposed protected action ballot of employees of Maersk Crewing Australia Pty Ltd.

[1] On 13 October 2017, an application pursuant to s.437 of the Fair Work Act 2009 (theFWAct) was filed by the Maritime Union of Australia (MUA) for a protected action ballot order in relation to certain employees employed by Maersk Crewing Australia Pty Ltd (Maersk/respondent).

[2] The employees to be balloted are members of the MUA employed by the respondent and to whom the Maersk Crewing Australia Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Greenfields Agreement 2010 (the Agreement) applies.

[3] In support of its application, the F34B Statutory Declaration made and signed by Mr Danny Cain an Official with the MUA, advised that the Agreement’s nominal expiry was 31 July 2013.

[4] Maersk’s representative, the Australian Mines and Metals Association (AMMA) advised by email that the respondent did not oppose or consent to the MUA application.

[5] Mr Cain has stated that the MUA are genuinely trying to reach agreement with Maersk over a replacement agreement, and set out details of meetings and correspondence between the MUA and Maersk in his statutory declaration including:

• In early to mid-2013, the MUA and Maersk held four separate meetings to endeavour to reach agreement on a new enterprise agreement. Maersk appointed AMMA as its bargaining representative and ‘there has since been dozens of bargaining meetings and conferences held by the Fair Work Commission to assist the parties to reach agreement’;



• MUA organizer George Gakis emailed Maersk on two occasions in April 2015 to request direct meetings between MUA and Maersk, however these requests were declined;



• Maersk subsequently reissued the Notice of Employee Representational Rights on 15 October 2015, writing to the MUA the following day to advise it intended to request employees to vote on a replacement agreement in November 2015, however the proposed agreement was not approved by employees;



• Further discussions took place in November 2015 regarding ways to move forward with negotiations and the MUA provided a proposed agreement to Maersk on 3 December 2015;



• Discussions between the MUA and Maersk also took place on 30 June 2017 regarding a proposed agreement;



• The MUA provided a draft proposed agreement for discussion on 13 September 2017 and met with Maersk for discussions;



• Maersk provided a draft agreement in reply on 21 September 2017, and the parties met for discussions on 27 September 2017;



• The MUA filed an application for a protected action ballot order on 6 October 2017, however it agreed to withdraw the application and to have further discussions with Maersk;



• Further extensive discussions between the MUA and Maersk occurred, extending for more than 10 hours.

[6] Despite the negotiations between the parties, no agreement has been reached.

The legislation

[7] Under s.437 of the FW Act, a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to the Commission for an Order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in particular protected industrial action for the agreement.

[8] The specific terms of s.443 are extracted below:

“443 When FWC must make a protected action ballot order

(1) FWC 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) FWC 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) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).”

(My underline)

[9] The legislation as expressed at s.443(1) requires that the Commission must make a protected action ballot order if satisfied the applicant has been, and is, genuinely trying to reach an agreement with the employer.

[10] A Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 1 refrained from adopting a formulaic approach when applying the statutory test under s.443(1)(b) stating :

“[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. 2 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. ....”

[11] In the Federal Full Court decision of J.J. Richards & Sons Pty Ltd v Fair Work Australia 3 Flick J stated:

“[58] It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:

● an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and

● the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application.”

[12] For the purposes of s.443(1)(b) of the Act, and having regard to the legal authorities referred to above and applying their principles to the facts and circumstances of the MUA application as stated in Mr Cain’s statutory declaration, I am satisfied that the MUA has been and is, genuinely trying to reach an agreement with the respondent. There was nothing put to question the bona fides of the MUA’s claim to be genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[13] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and an order [PR596876] based on the draft provided by the MUA is issued in conjunction with this decision.

[14] The Order will provide that certain essential work be exempt from any industrial action that may be taken:

● Watch keeping at sea;

● Fire drills;

● Port security watches;

● Safety drills ;

● Provision of meals and mess room services;

● Movement of perishable stores;

● All dealings with emergency equipment in any manner; and

● Any and all safety and emergency related issues.

[15] The Order will also provide by consent of the parties and in accordance with s.443(5) of the FW Act, that a period of 7 days’ notice to take any proposed protected industrial action will be required. The Commission is satisfied that there are exceptional circumstances justifying the required period of notice being greater than 3 days as is ordinarily required under s.414(2) of the FW Act. Such an extension of the notice period is consistent with decisions of the Commission in similar circumstances. 4

DEPUTY PRESIDENT

 1   [2009] FWAFB 368

 2   Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Print T1982; Re Media, Entertainment and Arts Alliance PR928033]

 3 [2012] FCAFC 53

 4   See Maritime Union of Australia v Farstad Shipping (Indian Pacific) Pty Ltd[2014] FWC 4546

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<Price code A, PR596868>