Maritime Union of Australia v Tidewater Marine Australia Pty Ltd

[2014] FWC 1733

[2014] FWC 1733

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Maritime Union of Australia
v
Tidewater Marine Australia Pty Ltd
(B2014/44)

COMMISSIONER CLOGHAN PERTH, 17 MARCH 2014

Proposed protected action ballot by employees of Tidewater Marine Australia Pty Ltd.

INTRODUCTION

[1] This is an application by the Maritime Union of Australia (MUA or Applicant) for a protected action ballot order (PABO) to determine whether employees of Tidewater Marine Australia Pty Ltd (Tidewater or Employer) wish to engage in protected industrial action for the purpose of advancing their claims for a proposed replacement enterprise agreement to the Tidewater Marine Australia Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (Agreement). The Agreement has a nominal expiry date of 31 July 2013.

[2] The application was filed on 5 March 2014 and heard on 11 March 2014.

[3] At the hearing on 11 March 2014, the MUA was represented by Mr L Edmonds, National Legal Officer and evidence given on behalf of the MUA by Mr W Tracey, Assistant Secretary, Western Australian Branch.

[4] The Employer was represented by Mr J Blackburn of Counsel. Evidence was given on behalf of the Employer by Mr C Patman, Consultant to Tidewater and Captain M Sutton, Operations Manager.

[5] This is my decision and reasons for decision.

[6] The application is made pursuant to s.437 of the Fair Work Act 2009 (FW Act).

RELEVANT STATUTORY FRAMEWORK

[7] Part 3-3 of the FW Act is concerned with industrial action. Division 8 of Part 3-3 of the FW Act deals with protected action ballots and at s.436 describes the objects of the Division as follows:

“436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.”

[8] Section 443 of the FW Act relevantly provides when the Commission must make a PABO.

“443 When the FWC must make a protected action ballot order

(1) The 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) the 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.” (my emphasis)

[9] Due to the nature of this application, it is also necessary to consider the good faith bargaining (GFB) requirements in the FW Act as follows:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

APPROACH TO THE CONSTRUCTION OF THE RELEVANT STATUTORY PROVISIONS

[10] With respect to the approach to the construction of the relevant statutory provisions, I adopt the following from the Full Bench in Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia [2014] FWCFB 1317 as follows:

“[21] In considering the relevant statutory provisions at issue in this appeal the starting point is to construe the words of the statute according to their ordinary meaning having regard to the context and legislative purpose.  The words of the statute being construed should be read by reference to the language of the statute as a whole. As Lawler VP and Bissett C observed in JJ Richards and Sons Pty Ltd v Transport Workers’ Union of Australia, after reciting relevant authorities concerning statutory construction:

Drawing these principles together, the task of statutory interpretation is concerned with ascertaining the intention of the legislature as manifested by the text of the legislation. Context (using that word in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy) and the purpose or object underlying the legislation must always be considered. These must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. The text of a provision, read in context and having regard to the object and purpose of the provision, is always the surest guide. 

[22] His Honour Justice Flick in J.J. Richards & Sons Pty Ltd and Another v Fair Work Australia and Another discussed three long established and fundamental principles to statutory construction. In so doing His Honour said:

First, the so-called “golden rule” of the common law as to statutory construction is that “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther”: Grey v Pearson[1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See also: Australian Boot Trade Employés’ Federation v Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311 at 341 to 342 per Higgins J. The “golden rule” is not confined to circumstances where a “mistake” has been made in the wording of an Act; the rule is also applied to avoid construing legislation so as to produce patently unintended or absurd results: Footscray City College v Ruzicka [2007] VSCA 136 at [16], 16 VR 498 at 505 per Chernov JA (Warren CJ and Maxwell P agreeing).

Second, the common law also recognised that “[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey. See also: Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103 per Northrop and Pincus JJ; Minister for Immigration and Citizenship v Hart [2009] FCAFC 112 at [6] per Spender J.

Third, a construction of a statutory provision is to be preferred “that would best achieve the purpose or object of the Act”: Acts Interpretation Act1901 (Cth) s 15AA. The requirement to look to the purpose or object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235. Dawson J there went on to observe that the provision there in question, being a provision comparable to s 15AA, “... requires a court to construe an Act, not to rewrite it, in the light of its purposes”. Similarly, in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 162, Burchett J observed that s 15AA “... is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate ...”. See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at 85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512 at [7], [2001] FCA 512; 112 FCR 589 at 592 to 593 per Sundberg J. “In the end the task of the court is to ascertain and to enforce the actual commands of the legislature”: Re Application of The News Corp Ltd (1987) 15 FCR 227 at 236 per Bowen CJ.” (footnotes omitted).

EMPLOYER’S SUBMISSION

[11] The Employer submits that the Commission should not make the PABO order because the MUA is not and has not been genuinely trying to reach agreement on the proposed replacement enterprise agreement.

[12] The Employer submits that on two particular occasions, the MUA has engaged in misrepresentation or made misleading statements concerning the negotiations for a replacement enterprise agreement. The Employer asserts that on these occasions the MUA conduct was capricious, unfair and undermined collective bargaining 1 contrary to the GFB requirements in s.228 of the FW Act.

RELEVANT FACTUAL BACKGROUND

[13] Negotiations for a replacement enterprise agreement commenced on 25 January 2013. A further 13 negotiation meetings were held between the MUA and the Employer prior to 15 October 2013. In addition, the Commission facilitated eight (8) industry-wide conferences prior to 15 October 2013 to assist in negotiations for replacement enterprise agreements.

[14] On 15 October 2013, the MUA made application (B2013/1329) to the Commission for a PABO in relation to the same employees subject of this application. Following hearings on 18 October and 7 November 2013 and a conference on 21 October 2013, an order for a protected action ballot was made on 7 November 2013.

[15] Notwithstanding the PABO application in B2013/1329, the parties continued to meet in conferences in the Commission. For a meeting in the Commission on 21 October 2013, AMMA, on behalf of the Employer, provided the MUA with a draft agreement which contained an error which led to the first incident in which the Employer submits that the MUA has misrepresented or misled its members regarding negotiations. I shall return to those events in more detail later.

[16] Conferences in the Commission continued and on 7 November 2013, AMMA on behalf of the Employer and other vessel operators tabled a document containing their without prejudice wages offer. The wages offer is commonly referred to as Option A and Option B.

[17] Option A is a wages offer of 2.3% per annum commencing from Commission approval of a replacement agreement and 2.3% per annum for each year thereafter. The replacement agreement would be for four (4) years from the date of approval by the Commission. The conditions of the proposed replacement agreement are those contained in a draft agreement provided to the MUA on 1 November 2013, save for any minor “tidying up”. Option A has no expiry date for acceptance and remains on the table.

[18] Option B is a four (4) year agreement and the conditions are those in the MUA draft agreement provided to the MUA on 1 November 2013 save any minor “tidying up”. Option B provides for a 4.5% wage increase for the first year following approval by the Commission of the replacement enterprise agreements and 4% per year thereafter. The enhanced wages offer in Option B was on the condition that the MUA dropped all its current claims. Option B remained “on the table” until 25 November 2013 in the first instance.

[19] On 2 January 2014, the Australian Electoral Commission declared the results of the ballot conducted pursuant to the PABO issued on 7 November 2013 in B2013/1329. The vote of the employees was in favour of taking particular industrial action to advance their claims relating to the proposed replacement enterprise agreement.

[20] Following further industry-wide negotiations in the Commission on 14, 15 and 17 January 2014, I issued a Statement on 17 January 2014 to the parties which included the following:

“[14] The MUA has rejected Option B.

[22] The MUA is of the view that collective negotiations with the Vessel Operators is not proving fruitful and are now disposed to individual Vessel Operator negotiations.”

[24] Having considered the respective positions, I advise the parties that I will not require them to attend the Commission again until 14 February 2014.” 2

[21] Following the release of the Statement on 17 January 2014, the parties were relieved of their commitment to confidentiality of negotiations in the Commission and media comment. As a consequence, media comments by both parties recommenced.

[22] Pursuant to s.459(3) of the FW Act, the 30 day period for which the employees were able to take protected industrial action in accordance with s.459(1)(d)(i) was extended by a further 30 days on 24 January 2014.

[23] Prior to the recommencement of discussions in the Commission at 2:00 pm on 14 February 2014 (see paragraph [20]), Mr Tracey, on the same day, forwarded to Mr Patman an email at 11:42 am. This email led to the second incident in which the Employer submits that the MUA has misrepresented or misled its members regarding negotiations for a replacement enterprise agreement contrary to the GFB requirements in the FW Act. I shall also deal with those events later in these reasons for decision.

[24] On 21 February 2014, the MUA gave notice to Tidewater, pursuant to s.414(1) of the FW Act, of its intention to take employee claim action commencing on 28 February 2014.

[25] The Employer sought injunctive relief in the Federal Court of Australia asserting that the notice of employee claim action given by the MUA to the Employer on 21 February 2014 was not proper notice pursuant to s.414(1) of the FW Act. Injunctive relief was granted by the Federal Court to the Employer on 27 February 2014 which restrained the employees from taking industrial action commencing on 28 February 2014.

[26] Pursuant to s.459 of the FW Act, the effect of the protected action ballot declared on 2 January 2014 has now ceased. Secondly, the parties have not reached agreement on a replacement enterprise agreement. Accordingly, the MUA have made this application seeking another PABO.

CONSIDERATION

[27] Counsel for the Employer submitted that:

“...in the context of s.443(1)(b), the word ‘genuinely’ betokens a concern with the moral authenticity of the MUA’s attempts to reach agreement, then the MUA has clearly failed the test in this case.” 3 (my emphasis)

[28] In support of this submission the Employer referred to Grocon Pty Ltd PR927672 12 February 2003 where VP Ross (as he then was) relevantly stated:

“[45] In Re AIRC; Ex parte CFMEU the Full Federal Court held that the requirement that an agreement be “genuinely” made “plainly betokens a concern with the moral authenticity and, as it were the moral authority of the agreement. It is perfectly understandable - indeed, one might reasonably think, plainly necessary - this be so.” 4 (my emphasis)

[29] Similarly, in JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963 at paragraph [58] the majority stated:

“[58] The expression “genuinely trying” in s.443(1)(b) is, clearly enough, concerned with the genuineness of the “trying”, to reach the stated goal, namely an enterprise agreement that meets the requirements of the FW Act. It is directed at the authenticity of the applicant’s efforts to reach that goal. The genuineness or authenticity of the applicant’s efforts to reach that goal will turn on its motivation - the intention, object or purpose.” (my emphasis)

[30] Counsel for the Employer also referred to Total Marine Services Pty Limited v Maritime Union of Australia [2009] FWAFB 368 (TMS), where the Full Bench made the following comments in relation to the concept of genuinely trying to reach agreement:

“[31] In our view the concept of genuinely trying to reach agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 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 the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.

...

[33] ...He [Commissioner Thatcher at first instance] considered whether the MUA was bargaining in good faith as a relevant consideration as to whether the MUA was genuinely trying to reach an agreement and again correctly in our view fell short of equating the concepts.” (my emphasis)

[31] The Full Bench in TMS confirmed that GFB and genuinely trying to reach agreement are distinct concepts but did not take issue with the proposition that whether a party is bargaining in good faith is a relevant consideration in determining whether that party is genuinely trying to reach agreement.

[32] In Transport Workers’ Union of Australia v CRT Group Pty Ltd [2009] FWA 425, SDP Hamberger said:

“[26] While there is a relationship between “genuinely trying to reach agreement” and “bargaining in good faith” it would be wrong simply to conflate the two terms. Even if I had found that the TWU was not bargaining in good faith - something I have not done - that would not necessarily mean that the TWU was not genuinely trying to make an agreement. Indeed the explanatory memorandum to the Fair Work Bill 2008 states, when dealing with the “genuinely trying to reach an agreement” expression in 413...;

...The question whether a person is genuinely to reach an agreement requires a subjective assessment of the actual intention of the person and the overall circumstances. It is not limited to an assessment of whether the person is complying with the good faith bargaining requirements.” (my emphasis)

[33] Finally, in Farstad Shipping (Indian Pacific P/L) v MUA [2011] FWAFB 1686 the Full Bench stated at paragraph [11] that the requirement in s.443(1)(b), that an applicant be genuinely trying to reach an agreement, calls for the application of a “relatively broad discretionary standard”.

[34] I now turn to the two particular incidents, in my consideration, which the Employer submits demonstrates that the MUA is not genuinely trying to reach agreement with Tidewater for a replacement enterprise agreement.

CONSIDERATION

Incident 1

[35] The facts of the first incident are that Mr Wakelin, on behalf of AMMA, on 18 October 2013 emailed Mr Tracey, on a without prejudice basis, a draft enterprise agreement for the purposes of discussion in the Commission on 21 October 2013.

[36] On 21 October 2013, Mr Tracey advised Mr Wakelin that he had not received the email and was given a spare hard copy.

[37] The draft enterprise agreement contained “[90%]” in Schedules 2, 3, 5-7, 9 and 10 which deals with rates of pay. Mr Wakelin was embarrassed by the error and immediately retracted the insertion of “[90%]” prior to the commencement of discussions in the Commission. Mr Wakelin advised Mr Tracey that the inserted “[90%]” was a typographical error.

[38] At 9:27 am on 21 October 2013, Ms Cochrane (AMMA), on behalf of Mr Wakelin, forwarded an email to Mr Tracey confirming that the draft enterprise agreement contained a drafting error and attached an amended version of the schedules as they currently existed in the Agreement. In the email, Mr Wakelin confirmed that the intention of the vessel operators was to “retain the correct percentage relativities”. Further, “to be clear - this draft EA is not/was not ever intended to reflect a monetary offer to the MUA - it is/was simply provided (on a without prejudice basis) for the purposes of focussing our discussions in the FWC conferences”. 5

[39] Mr Tracey gave evidence that he did not see Mr Wakelin’s email of 9:27 am and at 11:01 am emailed a large number of Tidewater employees to be covered by the proposed replacement agreement setting out the Employer’s position as follows:

“...This means that after spending 12 months of not tabling any pay offer at all AMMA have responded by tabling a 10% pay cut for a huge swag of our membership...” 6

[40] Further, Mr Heath, who also is an Assistant Secretary of the MUA sent out an email at 11:43 am to a large number of vessels whose crews would be covered by the proposed replacement agreement. Mr Heath’s email is adorned with more criticism of AMMA and the vessel operators for proposing a “10% cut in wages for members” 7.

[41] Late on the same day (21 October 2013), Mr Wakelin wrote to Mr Tracey requesting a correction to the MUA’s representation of AMMA and the vessel operators’ position of reducing the wages of some of the employees to be covered by the proposed replacement agreements.

[42] The MUA did correct the position of AMMA and the vessel operators’ position at approximately 6:00 am on 22 October 2013. However, the manner in which it was done was disrespectful and disobliging; nonetheless, the request by AMMA was acted upon.

[43] In his evidence, Mr Tracey rightly concedes that the “[90%]” in the draft schedules was an error but then continues in cross examination that it was a “try on”  8 by AMMA. Mr Tracey had some difficulty explaining what a “try on” was.

[44] I find that the without prejudice draft agreement contained a simple but important error which was “milked” by the MUA in communication with its members. It is not uncommon for industrial relations practitioners to point out glaring and unintended errors of the other side as a matter of decency and to maintain the ongoing interdependent relationship which goes beyond the immediate dispute. It is also not uncommon for the party making a mistake to acknowledge that they have made an error and that error is not acted upon by the other party - that did not happen in this case.

[45] The Employer, represented by AMMA, was rightly aggrieved by this exploitation of the error by the MUA. However, being aggrieved is not the test, in my view, of whether the MUA were meeting the GFB requirements or genuinely trying to reach agreement with the Employer in relation to a proposed enterprise agreement.

[46] The Employer submitted that Mr Tracey and Mr Heath were “lying”, misrepresenting and misleading their members regarding the Employer’s position and that is contrary to the GFB requirements and indicative of the Union not genuinely trying to reach agreement on a replacement enterprise agreement.

[47] In my view the Employer’s submission is suggesting a standard more akin to a moral principle such as “lying is wrong” or “misrepresentation or misleading statements are wrong”. Contextualising the test for genuinely trying to reach agreement in terms of moral notions of lying, misrepresentation or misleading statements is, in my view, too narrow and focuses upon a moral principle rather than the totality of the MUA’s actions in negotiations.

[48] In my view, it would be unrealistic to have “moral authenticity” or a moral standard for bargaining representatives to be only genuinely trying to reach agreement by never telling a lie or not misleading or representing a position in negotiations. In making this statement, I am not endorsing the view that lying or misrepresentation is justified - bargaining representatives have a general responsibility to tell the truth. However, in industrial disputes where the stakes are important for both sides and emotions can be strained, intentionally or unintentionally, lies, misrepresentation and misleading statements occur.

[49] Just as Oscar Wilde observed “the truth is rarely pure and simple”, lies, misrepresentation and misleading statements are also never pure or simple. In this case, Mr Tracey and Mr Heath took advantage of AMMA’s error and, in my view, misrepresented the Employer’s position. However, within a relatively short period of time, Mr Tracey withdrew that position, albeit begrudgingly.

[50] The Employer submits that the incident by or of itself is demonstrative of the MUA not meeting the good faith bargaining requirements or genuinely trying to reach an agreement pursuant to the FW Act. I consider it is necessary to look at all the other additional evidence to answer the question of whether the Commission can be satisfied that the applicant, in this case, the MUA, is genuinely trying to reach agreement with the Employer of the employees to be balloted.

[51] The evidence is that, with the exception of this incident and the next one which I refer to, the Employer has no evidence to support a finding that the MUA is not meeting the good faith bargaining requirements and is not genuinely trying to reach agreement with the Employer.

Incident 2

[52] On 7 November 2013, AMMA on behalf of the vessel operators, tabled in the Commission, on a without prejudice basis, the wages offers which are referred to as Option A and Option B.

[53] Option A did not and does not have an expiry date.

[54] Option B had an initial expiry date of 25 November 2013 which on the recommendation of the Commission, has been extended on two occasions. In the first instance, Option B was extended to 11 December 2013 and later to 17 January 2014.

[55] On 15 January 2014, the MUA rejected Option B as put by AMMA on behalf of the vessel operators.

[56] On 17 January 2014, I issued a Statement which concluded industry-wide negotiations facilitated by the Commission. I have referred to some of the content of the Statement in paragraph [20]. I requested the parties report back to the Commission on 14 February 2014.

[57] On 14 February 2014 at 11:42 am, Mr Tracey forwarded an email to Mr Patman accepting a wage offer of 16.5% “put by your company to the MUA...the acceptance of this offer is on the basis of our other claims in the proposal of January 16th being met.” 9

[58] Mr Tracey, in evidence in chief, could not produce any documentary evidence where the Employer had put a wage offer of 16.5%. In cross examination, Mr Tracey asserted that the 16.5% wage increase was the position put by AMMA on behalf of vessel operators in its media releases 10.

[59] As a finding of fact, the Commission has no evidence to support the proposition that the Employer made an offer to the MUA of a 16.5% wage increase. The Employer having not made an offer, the MUA was not in a position to accept the purported offer. Further, the purported offer of a 16.5% wage increase referred to by the MUA on 14 February 2014 had been rejected by the MUA on 15 January 2014 and, in any event, expired on 17 January 2014.

[60] As an experienced trade union official, Mr Tracey would know that to suggest that enterprise bargaining occurs through media releases is a fiction. The media is used to shape positions, exert leverage and influence outcomes but it is not the conduit for offers and acceptances.

[61] Further, and finally, Mr Tracey’s purported acceptance was conditional; those conditions were not in the Employer’s expired wages offer.

[62] On 19 February 2014, Mr Patman rejected Mr Tracey’s acceptance of the purported wages offer of 16.5%. This led to a media release in which it claimed that the Employer had “withdrawn the wage offer” and as a consequence the relevant employees “have no choice but to take industrial action” 11.

[63] Mr Patman’s evidence is that:

“The MUA, in its correspondence with members and in statements to the media and to the public, failed to acknowledge:

(a) that, at the time the MUA purported to accept the wage rates in the Option B Offer, the offer had lapsed, despite the time period for its acceptance being extended twice;

(b) that that the Option B Offer was contingent on the MUA accepting the terms and conditions in the Option B Offer; and

(c) that the MUA’s purported acceptance of the wage rates in the Option B Offer was contingent on AMMA and the vessel operators accepting other terms and conditions that did not form part of the Option B Offer.” 12

[64] I am not able to come to a finding contrary to the evidence of Mr Patman.

[65] While it is unfortunate, those that engage with the media appear to think that resolution of complex industrial disputes can best be achieved by simplification into “good union/bad employer” (vice versa), the selective use or omission of facts, and/or the distortion of facts.

[66] This is the second event, according to the Employer, which demonstrates that the MUA has engaged in misrepresenting or misleading statements concerning negotiations and, as a consequence, is not genuinely trying to reach agreement with the Employer, pursuant to s.443(1)(b) of the FW Act for the PABO to be made. Perversely, it could be said that the MUA, by its actions, is genuinely “trying” to reach agreement, although on terms not agreeable to the Employer.

[67] I adopt and endorse the approach taken by the Full Bench in the TMS decision. The requirement of genuinely trying to reach agreement is by reference to all the circumstances of the particular negotiations. An examination of all the circumstances of negotiations between commencement on 25 January 2013 and when this application was made on 5 March 2014, these two incidents are the only episodes which the Employer has referred to to demonstrate that the MUA has not been genuinely trying to reach agreement on a proposed replacement agreement. With regards to the first instance, it was not of the MUA’s making, it merely took advantage of an error by AMMA which it relatively quickly withdrew.

[68] With regard to the second incident, in my view, the MUA fabricated a fiction which Mr Tracey, in evidence, struggled to convince himself that the Union’s media release of 21 February 2014 was based on a solid foundation.

[69] Consistent with the views of the Full Bench in TMS, I consider the Commission, when using its discretionary powers to determine whether it is satisfied that the applicant has been and is genuinely trying to reach agreement, it is necessary to look at the totality of bargaining and not at isolated instances which question the morality of the MUA’s actions.

[70] The totality of the negotiations, by and large, indicate a constructive, cooperative and purposeful bargaining. The two incidents are, without doubt, the exception and not the rule. For this reason, I am unable to agree with the Employer’s Counsel that they represent a “pattern” 13 demonstrating that the MUA is not genuinely trying to reach agreement on replacement agreements.

[71] Communication between the MUA and its members is a legitimate part of bargaining for enterprise agreements. Similarly, it is legitimate for employers to communicate with its employees regarding negotiations for enterprise agreements. In my view, neither forms of communication undermine collective bargaining. However, there may be a point in the communications by both parties where deliberately misrepresenting or making misleading statements about the position of the other party is contrary to the GFB requirements and indicative of not genuinely trying to reach agreement. However, I find that that is not the case in the totality of the circumstances of this application.

[72] In my view, the communication by the MUA in Incident 1 was opportunistic and had little impact on negotiations. The communication by the MUA in Incident 2 was a more manipulative and deliberate action in which the MUA would have and did receive a response from the Employer to correct its interpretation of the status of negotiations. The Employer corrected the record on 7 March 2014 to its employees in a way which was not inflammatory but objective in its response. The Employer’s response appears intended to put behind the parties their “paper hostilities” and return to bargaining with the purpose of negotiating a replacement enterprise agreement in a “realistic and pragmatic manner”  14.

CONCLUSION

[73] Having considered the legislative framework, the approach to statutory interpretation, case law, evidence and submissions, for the reasons above, I am satisfied that the Applicant has been and is genuinely trying to reach agreement with the Employer for a replacement agreement. Consequently, pursuant to s.443(1) of the FW Act, I must make a protected action ballot order. Accordingly, an order is made in terms of agreement between the parties and will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

L Edmonds on behalf of the Applicant.

J Blackburn of Counsel with D Scanlan on behalf of the Respondent.

Hearing details:

2014:

Perth,

11 March.

 1   Transcript PN456

 2   Exhibit R6 CP10

 3   Employer’s Submission paragraph 14

 4 CFMEU v AIRC (1999) 93 FCR 317

 5   Exhibit R6 CP1

 6   Exhibit R1

 7   Exhibit R2

 8   Transcript PN145

 9   Exhibit R6 CP11

 10   Transcript PN202

 11   Exhibit R6 CP13

 12   Exhibit R6

 13   Transcript PN432

 14   Exhibit A2

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