Maritime Union of Australia v PB Towage (Australia) Pty Ltd

[2011] FWA 6515

[2011] FWA 6515

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Maritime Union of Australia
v
PB Towage (Australia) Pty Ltd
(B2011/3427)

COMMISSIONER CLOGHAN PERTH, 22 SEPTEMBER 2011

Proposed protected action ballot by employees of PB Towage (Australia) Pty 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 PB Towage (Australia) Pty Ltd (“the Employer”) at its operations at Bunbury 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:

● PB Towage (Australia) Pty Ltd Bunbury Enterprise Agreement 2010 (“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] There are four employees in the Employer’s pilot boat operation at Bunbury. At the initial bargaining meeting in March 2011, Mr Evans attended with the four employees. The MUA stated its claims. The Employer did not list its issues for the replacement agreement but made positive comments on its operations in Bunbury.

[9] Mr Evans gave evidence that discussions have predominantly occurred through email and telephone conferencing. A face-to-face meeting occurred in Sydney, which Mr Evans described, in evidence, as the parties getting very close to agreement. Mr Evans reported back to the employees on the Sydney meeting and the MUA’s final position as put to the Employer. Further discussion has not been able to resolve a proposed replacement Agreement and hence, the MUA has sought a Protected Action Ballot Order. The outstanding issues relate to wages and redundancy payments.

EMPLOYER’S RESPONSE TO BARGAINING

[10] The Employer advised the Tribunal that it does not oppose the application for the Order by the MUA.

CONCLUSIONS

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

[12] 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 PB Towage (Australia) Pty Ltd at its operations in Bunbury, Western Australia; on this basis, I issued Order PR514788 on 19 September 2011.

COMMISSIONER

Appearances:

Mr L Edmonds for the Maritime Union of Australia.

Ms H Eager of Minter Ellison for PB Towage (Australia) Pty Ltd.

Hearing details:

2011:
Perth
19 September

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<Price code A, PR514876>