Maritime Union of Australia v Toll Mermaid Logistics Broome Pty Ltd

[2015] FWC 687

[2015] FWC 687

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Maritime Union of Australia
v
Toll Mermaid Logistics Broome Pty Ltd
(B2014/1603)

COMMISSIONER CLOGHAN PERTH, 29 JANUARY 2015

Application for a bargaining order.

[1] This is an application by the Maritime Union of Australia (Applicant or MUA) for a bargaining order pursuant to s.229 of the Fair Work Act 2009 (FW Act).

[2] The MUA seek an order requiring Toll Mermaid Logistics Broome Pty Ltd (Employer or Toll Mermaid) to recognise and meet with the MUA as a bargaining representative for the purposes of negotiations for a replacement enterprise agreement to the Toll Mermaid Logistics Brome Enterprise Agreement 2011 (Agreement).

[3] Toll Mermaid opposes the bargaining order sought by the MUA.

[4] The application remained unresolved after a conciliation conference on 26 November 2014.

[5] At the hearing on 23 January 2015, the MUA was represented by Mr L Edmonds, National Legal Officer. Evidence was given on behalf of the Applicant by Mr J Cassar, Organiser, MUA.

[6] Toll Mermaid was represented by Mr A Kennedy of counsel. Evidence was given on behalf of the Employer by Mr P Nieuwkerk, National Business Manager.

[7] At the conclusion of the hearing, I reserved my decision.

RELEVANT BACKGROUND

Employer

[8] Toll Mermaid is a joint venture (50:50) of Toll Holdings and Mermaid Marine Australia Pty Ltd to develop and manage a logistics base in Broome, Western Australia.

[9] The joint venture commenced in October 2006, however, a supply base has been in existence in Broome since January 2000.

[10] The joint venture provides services to offshore and onshore exploration, construction and production activity associated with the Browse Basin, Canning Basin and the Pilbara and Kimberley regions of Western Australia.

Broome Logistics Supply Base (Base)

[11] The Base is comprised on four (4) distinct work sites: supply bases 1, 2, 3 and a casing yard.

[12] Supply bases 1, 2 and 3 are located on Kimberley Port Authority (KPA) land, in an area commonly referred to as the “Broome Port precinct”.

[13] The Broome Port precinct is an area of land owned by KPA and leased to various leaseholders including a fuel company, mud companies, an aquaculture company and a livestock and cattle yard. There is one residential property.

[14] None of the four work sites are located on the wharf “neck” or the wharf itself. None of the work sites are located beyond the port security gate and in, what is referred to, the Maritime Security Zone.

[15] Supply bases 1 and 2 are on land directly leased from KPA.

[16] Supply base 3 is on land subleased through Oilfield Transport Services (OTS) who, it is understood, has a direct lease with the KPA.

[17] The casing yard is leased from the Toll Group.

Employees

[18] There are 23 full-time and 5/6 casual employees whose employment is regulated, in part, by the Agreement.

[19] The classifications in the Agreement are:

• Supply Base Operator;



• Senior Supply Base Operator;



• Supply Base Leading Hand.

[20] The employees are required to work over all four (4) work sites that constitute the Base.

[21] The Agreement nominally expired on 30 June 2014.

[22] No employee organisation sought to be covered by the Agreement pursuant to s.183(1) of the FW Act when it was made by employees, and subsequently, approved by the Commission in December 2011.

[23] In the Agreement, the employees and the Employer agreed that any reference to an Award means the Road Transport and Distribution Award 2010 (RTD Award). Further, the parties to the Agreement agreed that the RTD Award was the relevant instrument for the purposes of the “Better Off Overall Test”.

RELEVANT LEGISLATIVE FRAMEWORK

[24] Sub-section 229(1) of the FW Act sets out who can make an application for a bargaining order and the necessary requirements before making such an application.

“229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

...
Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

...”

[25] A bargaining representative for a proposed enterprise agreement is, relevantly set out in s.176 of the FW Act, as follows:

176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) ...

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) ...

Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation

(2) ...

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

Employee may appoint himself or herself

(4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.”

[26] The Commission can make a bargaining order relevantly pursuant to s.230(1) of the FW Act:

“230 When the FWC may make a bargaining order

Bargaining orders

(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.”

DISPUTE

[27] The dispute, shortly put, is that Toll Mermaid asserts that the MUA has no standing to make the application for a bargaining order as it is not, and cannot be, a bargaining representative for the employee.

[28] The MUA disagree. The MUA asserts that some employees to be covered by the replacement enterprise agreement are members of the MUA. Secondly, the work carried out by the employees covered by the replacement enterprise agreement meet the description of waterside worker in accordance with the registered rules of the MUA. Accordingly, the MUA is the “default” bargaining representative for the relevant employees and has standing to make the application.

DOES THE MUA HAVE MEMBERS AMONG THE EMPLOYEES WHO ARE TO BE COVERED BY THE REPLACEMENT ENTERPRISE AGREEMENT?

[29] To resolve the question of whether the MUA had members among those employees who are to be covered by the replacement enterprise agreement, I received into evidence a statutory declaration pursuant to the Statutory Declaration Act 1959 (Clth) from the Office Administrator of the Western Australian Branch of the MUA. The statutory declaration sets out the details of MUA members who are employed by the Employer pursuant to the Agreement.

[30] Subsequent to the hearing, I received from the Employer a list of those employees who are employed pursuant to the Agreement and copies of the appointment of bargaining representatives pursuant to the issuing of a Notice of Representation Rights (NRR) in accordance with s.174 of the FW Act.

[31] The above data from the MUA and the Employer reveal that, at the time the application was made to the Commission, the MUA did have members in the Employer’s workplace. However, I also have, after the date of the application to the Commission, NRRs in which those employees have self appointed themselves as bargaining representatives.

[32] Further, I have one person who became a member of the MUA after the application was filed in the Commission, but who has not appointed himself or any other person to be a bargaining representative.

[33] In view of the provisions of s.176 of the FW Act, I intend to hold a conference of the parties on how these facts should be considered for the purposes of the application.

COMMISSIONER

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