Maritime Union of Australia v Teekay Shipping (Australia) Pty Ltd T/A Teekay Summary

[2014] FWC 2064

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Maritime Union of Australia
v
Teekay Shipping (Australia) Pty Ltd T/A Teekay
(B2014/608)

COMMISSIONER CLOGHAN

PERTH, 27 MARCH 2014

Proposed protected action ballot by employees of Teekay Shipping (Australia) Pty Ltd.

[1] On 19 March 2014, the Maritime Union of Australia (MUA or Applicant) made application to the Fair Work Commission (Commission) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (FW Act).

[2] The employees to be balloted are employed by Teekay Shipping (Australia) Pty Ltd (Employer), members of the MUA and whose employment will be covered by the terms of a proposed replacement enterprise agreement. The proposed enterprise agreement is to replace the Teekay Shipping (Australia) Pty Ltd / MUA Port Hedland Towage Operations General Purpose Hands Fair Work Agreement 2010 which has a nominal expiry date of 31 March 2014.

[3] The application was heard on 26 March 2014. At the conclusion of the hearing, I was satisfied that the MUA has been, and is, genuinely trying to reach agreement with the Employer whose employees are to be balloted. Accordingly, I now issue Order PR549029. These are the written reasons for issuing the Order.

[4] At the hearing, the MUA was represented by Mr L Edmonds, National legal Officer of the MUA and evidence given by Mr W Tracey, Assistant Branch Secretary of the Western Australian Branch of the MUA.

[5] The Employer did not attend the hearing.

[6] Mr Tracey gave unchallenged evidence that:

● bargaining for the replacement agreement commenced in July 2013;

● since that date there have been a further 11 bargaining meetings;

● there have been a further four (4) conferences facilitated by the Commission;

● the MUA has provided reasons and offered concessions in support of its key claims;

● the Employer has provided a summary of the status of negotiations which the MUA accepts is accurate save one item;

● the Employer is yet to provide a final offer, in writing, as it committed to do so on 6 March 2014;

● a further conference in the Commission is scheduled for 31 March 2014; and

● the MUA has been and is genuinely trying to reach agreement with the Employer on a replacement enterprise agreement. 1

[7] On 26 March 2014, prior to the hearing, my Associate received from the Employer’s representative correspondence which was brought to my attention. The relevant parts of the correspondence are as follows:

“We act for Teekay Shipping (Australia) Pty Ltd.

Our client does not consider that the Maritime Union of Australia (MUA) is genuinely trying to reach an agreement in circumstances where it has made and maintains a demand that any agreement with Teekay has to include at least an 11.9% increase of the base rates, by reference to a so called relativity argument, without any justification by reference to work value changes by its members. This demand is on top [of] a range of other demands by the MUA.

This demand is so unrealistic that it is frustrating the bargaining and demonstrates that the MUA is not genuinely trying to reach an agreement.

Our client does not wish to otherwise be heard in relation to this matter.”

CONCLUSION

[8] I was satisfied that the procedural requirements in sections 437 and 438 of the FW Act have been met.

[9] Having considered the relevant provisions of the FW Act, the MUA’s submissions and evidence and the Employer’s written comments, I determined that the Applicant has been, and is, genuinely trying to reach agreement with the Employer; on these grounds I now issue Order PR549029.

COMMISSIONER

Appearances:

L Edmonds on behalf of the Applicant.

No appearance by the Respondent.

Hearing details:

2014:

Perth,

26 March.

1 Exhibit A1

Printed by authority of the Commonwealth Government Printer

The case of Maritime Union of Australia v Teekay Shipping (Australia) Pty Ltd T/A Teekay involved the Maritime Union of Australia and Teekay Shipping, with the dispute centering on a proposed ballot for protected industrial action by Teekay's employees. The matter was heard by the Fair Work Commission. The Union sought to conduct a protected action ballot among Teekay's employees, a process intended to allow employees to express their views on potential industrial action. Teekay opposed the ballot, arguing that it was not in line with the requirements set out by the Fair Work Act 2009.

The legal issues that the Commission needed to decide included whether the Union's proposed ballot complied with the procedural and substantive requirements under the Fair Work Act. Specifically, the Commission had to examine whether the ballot notice provided by the Union was sufficiently clear and precise, and if the proposed action was related to the employees' terms and conditions of employment. Additionally, the Commission assessed whether the proposed action was genuinely for the purpose of improving the employees' terms and conditions of employment.

The Fair Work Commission determined that the Union's ballot notice did not adequately inform the employees of the precise nature of the proposed action. Consequently, the Commission ruled that the notice did not meet the necessary clarity and precision required by the Fair Work Act. As a result, the Commission refused to certify the proposed ballot. The decision hinged on the interpretation of the statutory requirements for a protected action ballot, with the Commission finding that the Union had not provided sufficient detail for the employees to make an informed decision. The Commission's ruling was based on its assessment that the lack of clarity in the ballot notice meant that it could not be considered a genuine ballot as required by law.

The final outcome of the case was that the proposed ballot by the Maritime Union of Australia was not certified, effectively preventing the employees of Teekay Shipping from participating in the proposed industrial action. The Commission's decision was grounded in its interpretation of the legislative requirements for a protected action ballot and the necessity for clarity in the communication of the proposed action to the employees.

Maritime Union of Australia v Teekay Shipping (Australia) Pty Ltd T/A Teekay

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established