Maritime Union of Australia, Western Australian Branch v Mermaid Marine Vessel Operations Pty Ltd
[2012] FWA 6442
•31 JULY 2012
[2012] FWA 6442 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Maritime Union of Australia, Western Australian Branch
v
Mermaid Marine Vessel Operations Pty Ltd
(B2012/938)
COMMISSIONER CLOGHAN | PERTH, 31 JULY 2012 |
Proposed protected action ballot by employees of Mermaid Marine Vessel Operations Pty Ltd.
[1] On 20 July 2012, 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 employees employed by Mermaid Marine Vessel Operations Pty Ltd (“the Employer”) and are represented by the MUA in bargaining for a replacement agreement to the Mermaid Marine Vessel Operations Pty Ltd, Maritime Union of Australia, Dampier Inshore Agreement 2005 (“the Agreement”).
[3] The nominal expiry date of the Agreement is 6 April 2009.
[4] The application was heard on 25 July 2012. 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 issued Order PR527103. These are the written reasons for issuing the Order.
[5] At the hearing, the MUA was represented by Mr L Edmonds and evidence was given by Mr Doug Heath, Organiser, West Australian Branch of the MUA. The Employer was represented by Mr D Scanlan and evidence given on its behalf by Mr Michael Gillett, General Manager Human Resources.
APPLICANT’S EVIDENCE AND SUBMISSIONS
[6] Mr Edmonds sought that the transcript and written witness statement from Mr Heath in a similar application (B2012/40), be incorporated into evidence. There being no objection from the Employer, and as the material was relevant to this application, I agreed to Mr Edmonds’ request.
[7] During unspecified times in 2010, representatives from the MUA and the Employer met and discussed the content of a replacement enterprise agreement to the Agreement.
[8] By February 2011, the MUA and the Employer had reached an in principle agreement on the key matters relating to the replacement agreement. The outstanding issue was a claim by the MUA for what was described as a “Gorgon Allowance”. In June 2011, the Employer advised the MUA that it could not agree to the MUA’s claim for a Gorgon Allowance 1.
[9] Between June and November 2011, the parties continued to communicate, however, they maintained their respective positions concerning the Gorgon Allowance. In early November 2011, the Employer emailed the MUA and sought its response to a “Retention Allowance” in lieu of the Gorgon Allowance 2.
[10] By mid November 2011, the Employer advised the MUA that it was unable to agree to the claim of a Gorgon Allowance or any similar allowance.
[11] On 16 February 2012, the MUA made application to FWA for a protected action ballot order. FWA was satisfied that the MUA had been, and was, genuinely trying to reach agreement and consequently Williams C issued an order on 21 February 2012.
[12] The Australian Electoral Commission declared the results of the ballot on 8 March 2012. A majority of voters in the ballot did not vote and consequently the provisions of s.459 of the FW Act were not met.
[13] Since the declaration of the ballot, Mr Heath and Mr Gillett have been in communication regarding the outstanding key issue of the Gorgon Allowance. While the communication could have been more comprehensive in both form and content, a stalemate appears to exist on the outstanding issue of the Gorgon Allowance.
[14] The employees, through the MUA, are seeking for the Employer to pay the Gorgon Allowance to its inshore crew as it does to its offshore crew.
[15] The MUA is seeking parity of the Gorgon Allowance to the Employer’s inshore and offshore crew and not an administrative payment currently being paid to employees which was characterised as a “form” 3 of the allowance.
[16] The parties have in existence a draft replacement agreement and it only remains for it to be tidied up and the claimed Gorgon Allowance issue to be resolved.
[17] The MUA remains available to meet with the Employer.
EMPLOYER’S EVIDENCE AND SUBMISSIONS
[18] Much of the facts concerning the communication between the Employer and the MUA since the declaration of the ballot are not in dispute. However, the Employer puts a different characterisation to the communication. The Employer portrayed much of the communication of the replacement agreement as peripheral to other matters being discussed. From the evidence, this contention is correct.
[19] For the Employer, the inclusion of a Gorgon Allowance is not a decision it can make unilaterally. The inclusion of the Gorgon Allowance requires approval from its client, the Kellogg Joint Venture Gorgon (KJVG) 4.
[20] Notwithstanding the approval process and discussions with the MUA, the Employer met with the relevant employees on 16 May 2012.
[21] At the meeting with the employees on 16 May 2012, the employees raised examples of other vessels operating within the Port of Dampier limits, who were receiving the Gorgon Allowance. The Employer informed the employees that these vessels were, in addition to undertaking inshore activities, sailing to Barrow Island and elsewhere, and consequently qualified for the Allowance.
[22] At the conclusion of the 16 May 2012 meeting with the employees, the Employer gave a commitment to raise the matter with KJVG which it has done so. At the time of the hearing, KJVG had informally advised the Employer that it would not be approving the payment of the Gorgon Allowance to employees engaged on inshore work only.
[23] The Employer submitted that to pay the Gorgon Allowance would not only incur the displeasure of their client but have commercial repercussions. For these reasons, it has resisted, and continues to resist, the MUA’s claim for the Gorgon Allowance.
CONSIDERATION
[24] I was satisfied at the conclusion of the hearing, in view of the evidence and submissions, that the MUA has been and is genuinely trying to reach agreement on a replacement agreement.
[25] I was also satisfied that the key issue remaining in bargaining for a replacement agreement is the resolution of the MUA’s claim for the Gorgon Allowance.
[26] At the time of the hearing, both parties had set out their boundaries in relation to the Gorgon Allowance. The MUA is seeking parity payment of the Gorgon Allowance for inshore only employees. The Employer has resisted parity payment but has made an alternative (undisclosed amount) offer to employees which was rejected on 16 May 2012.
[27] For the Tribunal, it is not possible to identify where the parties might eventually reach agreement. However, I indicated to both parties that the manner of their communication has almost reached the stage of being profunctory and with no meaningful purpose. While the FW Act does not require bargaining representatives to make concessions or reach agreement - what is commonly referred to as a hard bargaining - that does not excuse the requirement, in my view, for the parties to meet the good faith bargaining requirements which requires purposefully and meaningful communications.
[28] In conclusion, notwithstanding my observation immediately above in paragraph [27] regarding recent communications, I was satisfied that the Applicant has been and is genuinely trying to reach agreement with the Employer for a replacement agreement to the Agreement. Consequently, I must and did make Order PR527103.
COMMISSIONER
Appearances:
Mr L Edmonds, for the MUA.
Mr D Scanlan on behalf of the Employer.
Hearing details:
2012:
Perth
25 July.
1 Exhibit A2
2 Exhibit A2
3 PN 148
4 PN 210
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