Maritime Union of AustraliavJKC Australia LNG Pty Ltd
[2015] FWC 4731
•20 OCTOBER 2015
| [2015] FWC 4731 |
| FAIR WORK COMMISSION |
INTERIM DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Maritime Union of Australia
v
JKC Australia LNG Pty Ltd
(RE2015/367)
COMMISSIONER CLOGHAN | PERTH, 20 OCTOBER 2015 |
Alleged dispute concerning INPEX Project at Darwin Harbour.
[1] This is an application by the Maritime Union of Australia (MUA) for the Fair Work Commission (Commission) to deal with a right of entry dispute pursuant to s.505 of the Fair Work Act 2009 (FW Act).
[2] JKC Australia LNG Pty Ltd (JKC or Respondent) is the occupier of premises at Blaydin Point in Darwin Harbour. Blaydin Point is the site of the on-shore component of the Ichthys Liquefied Natural Gas Project (Ichthys LNG Project). JKC is engaged by the INPEX Joint Venture (INPEX JV) which owns the Ichthys LNG Project. JKC has been engaged by the INPEX JV as the engineering, procurement and construction (EPC) contractor for the on-shore construction and processing plant of the LNG.
[3] Mr Mayor is the Branch Secretary of the Northern Territory Branch of the MUA and holds a right of entry permit issued pursuant to s.512 of the FW Act.
[4] On 4 March 2015, Mr Mayor gave notice to the Respondent, pursuant to s.484 of the FW Act, that he intended, on 5 March 2015, to enter the ALE Hydro Deck on the INPEX Project Module Offloading Facility (MOF).
[5] On 5 March 2015, Mr Mayor attended the entrance to the INPEX Project containing the Hydro Deck identified in his 4 March 2015 notice. Mr Mayor was denied entry to the premises by representatives of the Respondent.
[6] On 9 March 2015, this application was filed in the Commission pursuant to s.505 of the FW Act.
[7] At the hearing into the MUA’s application, the MUA was represented by Mr D Quinn of counsel. Evidence was given for the MUA by:
- Mr T Mayor, NT Branch Secretary;
- Mr M Carr, former Branch Secretary of the Southern Queensland Branch of the MUA; and
- Mr J Clarke who was employed as a Trades Assistant, Group D on the ALE Hydro Deck.
[8] The Respondent was represented by Mr F Parry QC, Mr C Murdoch of counsel and Mr M Osborne of counsel. Evidence was given on behalf of the Respondent by Mr B George, Employee Relations Advisor.
[9] The hearing into the MUA application was preceded by “inspections”.
[10] At the hearing, three matters were raised which require my attention. They are:
- whether the MUA is entitled to represent the interests of the employees on the Hydro Deck. The MUA say that it is entitled to represent the interests of the employees on the Hydro Deck. The Respondent disagrees; and
- whether, in dealing with a dispute about the operation of Part 3-4 of Division 5 of the FW Act, the Commission, pursuant to s.505, has the power to make a declaration that the MUA is entitled to represent the interests of employees on the Hydro Deck. The Respondent asserts that the existence or otherwise of the MUA to represent the employees on the Hydro Deck, is distinct from a dispute about the operation of Part 3-4 of Division 5 of the FW Act. The MUA asserts that the Commission has the power to make a declaration that it is entitled to represent the interests of employees on the Hydro Deck; and finally,
- to set out the reasons why I refused the Respondent’s request to have the proceedings on 1 July 2015 adjourned.
[11] This is my interim decision in relation to whether the MUA is entitled to represent the interests of employees on the Hydro Deck, and secondly, to set out the reasons for refusing the Respondent’s application to adjourn proceedings on 1 July 2015.
RELEVANT LEGISLATIVE FRAMEWORK
“505 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:
- (a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).
Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.
Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.
Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.
Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.
- (a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
- (a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
- (i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:
- (a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”
REGISTERED RULES OF THE MUA
[12] The registered rules of the MUA identify at Rule 2(a) that it is registered “in or in connection with the shipping industry”.
[13] The eligibility rules of the MUA are divided into two categories – seafarers and waterside workers. Part “S” deals with seafarers and Part “W” deals with “waterside workers”.
[14] The MUA is relying upon Rule 3(1)(a) which relevantly reads:
“(a) The Union shall be composed of any number of:
(i) [list of seafaring occupations]…employees engaged on working on…barges…”
[15] In the alternative, the MUA is relying upon Rule 3.2(a) which relevantly reads:
“The Union shall also consist of:
(a) any person who intends to follow the occupation of a waterside worker…”
[16] The registered rules do not contain a definition of the occupation of a “waterside worker”.
[17] In order for the Commission to be satisfied that the MUA is entitled to represent the industrial interests of the employees subject to this dispute, I must find that the employees are “seafarers” or following the occupation of a “waterside worker”.
IS THE MUA ENTITLED TO REPRESENT THE INTERESTS OF EMPLOYEES ON THE HYDRO DECK?
[18] Mr Mayor is an officer of the MUA and holder of a permit issued pursuant to Division 6 of Part 3-4 of the FW Act.
[19] As a permit holder, Mr Mayor is entitled to exercise the powers and functions given to a permit holder in Part 3-4 of the FW Act.
[20] On 4 March 2015, Mr Mayor sent an Entry Notice to the Respondent giving “notice that I propose to enter the ALE Hydrodeck on the Darwin Inpex Project Module Offloading facility (MOF) to hold discussions with all members and potential members” on 5 March 2015.
[21] In the Entry Notice, Mr Mayor declared that the MUA is entitled to represent the industrial interests of an employee “who performs work on the premises mentioned above”.
[22] Mr Osborne, on behalf of the Respondent, informed Mr Mayor on the same day (4 March 2015) that JKC does not consider that the MUA is entitled to represent the industrial interests of any workers performing work in the area.
[23] Mr Mayor attended the entrance to the Project on 5 March 2015, but was denied entry by representatives of the Respondent.
[24] On 7 March 2015, Mr Quinn, on behalf of the MUA, communicated with Mr Osborne that the MUA is entitled to represent “waterside workers, being employees engaged in work on or in connection with the loading or unloading of vessels” and “maritime employees employed on or in connection with vessels, including those work on barges”.
[25] Mr Quinn is instructed “that employees at the premises are predominately engaged in work on, or in the vicinity of, a wharf where that work constitutes part of the overall operation of unloading ships on and from the Hydrodeck, a non-propelled barge, or as is described by its manufacturer, a “transition pontoon”. Accordingly, the MUA asserts that “those employees…fall within the eligibility rule of the MUA’.
[26] Neither the Entry Notice nor Mr Quinn’s correspondence to the Respondent specify which particular employees or classification of employees the MUA are “eligible” to represent pursuant to its registered rules.
[27] Subject to the jurisdictional objection, for the MUA to properly exercise its right of entry, it is necessary for the Commission to determine whether the MUA is entitled to represent the industrial interests of the unspecified employees employed by ALE Heavylift (Australia) Pty Ltd T/A ALE Heavylift (Australia) Pty Ltd (ALE or Employer).
[28] ALE employees on the Hydro Deck consist of employees covered by the ALE Heavylift (Australia) Pty Ltd Ichthys Onshore Construction Greenfields Agreement (ALE Greenfields Agreement) and salaried staff.
[29] Clause 2 of the ALE Greenfields Agreement states that the Employer and the following unions are parties to the Agreement:
- Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU); and
- Australian Workers Union (AWU) and
- Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); and
- Construction, Forestry, Mining and Energy Union, in respect of its Construction and General Division, Queensland Construction Workers Divisional Branch (CFMEU).
[30] The ALE Greenfields Agreement covers the unions, the Employer and its employees who will perform:
“(1) on-Site construction work;
(2) on-Site commissioning work; and
(3) onshore marine construction work and construction related activities at the marine offloading facility at Blaydin Point,
within the Employer’s scope of work on the Project, [and] who work in any of the work classifications identified in clause 12 of the Agreement.” (my emphasis)
[31] The ALE Greenfields Agreement does not apply, pursuant to subclause 3(d)(10) to:
“stevedoring work in conjunction with deliveries of materials and equipment to the respective port, or unloading and offloading of materials and equipment unless it is undertaken by Employees who have their employment regulated by the Agreement and are classified within clause 12”. (my emphasis)
[32] The parties agree that the Employer employs employees pursuant to the ALE Greenfields Agreement in the following classifications:
- “ Mechanical Technicians (maximum 4 in number)
- Electrical Technicians (maximum 4 in number)
- Leading Hand (maximum 2 in number); and
- Trades Assistants/Labourers (maximum 10 in number)” [this number may now be 9]
[33] The parties agree that approximately 20 employees are covered by the ALE Greenfields Agreement and there are approximately 13 salaried employees. The MUA submit that “all employees working on it [the Hydro Deck] are employees engaged on working on a harbour vessel and so covered by Rule 3.1(a)(i)”. 1 The MUA did not demur, in the course of proceedings, that “all” employees are eligible to be represented by the MUA.
[34] If I hold that the Hydro Deck is a “barge” as the MUA urge, I am also required to hold that the employees are carrying out the duties of one of the classifications in Rule 3(1)(a)(i) of the MUA Registered Rules.
[35] Should I reach the conclusion that the Hydro Deck is a barge and some of the employees are carrying out the duties of the classifications in Rule 3(1)(a)(i) of the MUA’s Registered Rules, it is necessary to consider the exclusion of employees who are:
“(1) in command, control or who supervise or operate vessels including employees described as masters, mates, deck officers and skippers;
(2) marine engineers, however described”.
[36] Put simply, even if the Commission finds that the Employer employs “seafarers”, because of the exclusion provisions relating to “seafarers”, it may be wrong or misleading to come to the conclusion that all employees are seafarers. What makes this all the more difficult is that the Employer employs, “Supervising Engineers”, “Ballast Engineers” and “Superintendent Engineers” who assist the Supervising Engineers. I have no definition of what is meant, in the MUA’s Registered Rules exclusion provision, of “marine engineers, however described”, or an employee who is “in command, control or who supervise”.
[37] Further, the largest occupational group covered by the ALE Greenfields Agreement is that of a Trades Assistant/Labourer (9 or 10 employees). I note that within the definition of “Labourer” in Appendix 1, it includes an employee performing duties on “workboat or barge”. Consistent with the MUA’s claim that the Hydrodeck is a “barge”, it appears that the ALE Greenfields Agreement envisages that “labourers” perform duties on a “barge”.
[38] In summary, I am not prepared to come to the conclusion, without delineation by the MUA, which positions it alleges are “seafarers” and which are not. Further, in view of the exclusion provisions, and views (if any) of the Respondent, I will provide the Australian Institute of Marine and Power Engineers and the Australian Maritime Officers’ Union, the opportunity to bring any evidence and submissions as to which positions they may consider fall within the definition of “marine engineers” and those “in command, control or who supervise”.
[39] I now turn to the issue of whether the employees of the ALE Greenfields Agreement are “waterside workers”.
[40] Similarly, I have come to the view that it is necessary for the MUA to delineate which positions it considers to be “waterside workers” and which are not.
[41] This issue presents a similar difficulty to that of “seafarers”. Exclusion provisions can be found in the MUA Registered Rules at 2(b)(3)(1) and 2(3)(a).
[42] The ALE Greenfields Agreement applies to all non-salaried employees of the Employer. However, an exclusion provision is found at subclause 3(d)(10) of the Agreement.
[43] The exclusion provision is written in such a way that, “stevedoring work in conjunction with…unloading and offloading of materials” is excluded from the scope of work “unless” it is undertaken by employees covered by the ALE Greenfields Agreement.
[44] There is no proposition from the MUA that persons, other than employees covered by the ALE Greenfields Agreement, have carried out all work, including alleged stevedoring work. Put differently, the exclusion provision in the ALE Greenfields Agreement, has not had any work to do, because the condition to enliven it has not been operative – that is, employees employed pursuant to the ALE Greenfields Agreement, have carried out the alleged stevedoring work.
[45] Mr Quinn submitted that it is “commonplace” 2 for employees to fall within more than one occupational group, type of work and rules of different unions. While I would not say it was commonplace, I agree it happens. However, I have a situation that for two years an enterprise agreement, in which four Unions declared, pursuant to the Statutory Declarations Act 1959, that they were entitled to represent the interests of employees covered by the ALE Greenfields Agreement and from who I have not heard.
[46] The MUA’s claim is that the work carried out by the employees employed pursuant to the ALE Greenfields Agreement is that of a person “following the occupation of a waterside worker” or “stevedoring work”. However, in my view, it would be inappropriate for the Commission to come to such a view, without seeking evidence, and submissions, (if any) from the four Union parties to the ALE Greenfields Agreement. This is particularly so, given that approximately 20 employees who currently carry out all non-salaried work, are potentially members of the four Unions cited in the ALE Greenfields Agreement. Should I hold that all the employees are waterside workers, it means that they are eligible to belong to more than the four (4) Unions referred to in the enterprise agreement without seeking their comment.
[47] In summary, in my view, it would be inappropriate to make a determination whether the MUA is eligible to represent the interests of the employees on the Hydro Deck until the Commission receives greater particularity. Even if I accepted the disputed terminology of “top deck crew”, it is not particular enough for my purposes to determine which employees (if any) are seafarers or waterside workers, in the absence of the views of those affected by any decision.
ADJOURNMENT OF PROCEEDINGS
[48] The MUA application was made on 9 March 2015.
[49] On 8 April 2015, Directions were issued for a hearing on 20 May 2015.
[50] On 17 April 2015, the Commission held a conference with the representatives of both parties.
[51] On 22 April 2015, I issued further Directions to the parties. At paragraphs [6] and [7] I said:
“[6] At the conference, the Employer’s representative indicated that the Employer had jurisdictional objections to the Commission dealing with the application. At the conclusion of the conference, I advised the parties that I would deal with the Employer’s jurisdictional objections and the substantive application in one hearing in Darwin. The hearing would be preceded by an inspection of the location and facilities which are the subject of the application.
[7] To assist in an efficient and effective arbitrated hearing, the following procedural directions are issued for both the jurisdictional objections (Directions A) and the substantive application (Directions B).”
[52] The Directions set out the process for filing documentary material for a hearing on 1 July 2015. On-site inspections were to commence at 2:30 pm on the previous day.
[53] On 17 June 2015, Mr Osborne advised that his client, JKC:
“1. has filed an Originating Application in the Federal Court of Australia [FCA] seeking an order declaring that the Application before the Fair Work Commission is not within the Commission’s jurisdiction under section 505 of the Fair Work Act 2009 (Cth); and
2. intends to apply at the commencement of proceedings before the Fair Work Commission on 1 July 2015 for the matter to be adjourned pending the determination of the Federal Court Application.
The grounds for the Federal Court Application are the same as those advanced by our client in these proceedings by way of its jurisdictional objection.”
[54] The FCA has listed the matter for a one day hearing on 23 November 2015.
[55] The reason for the request for an adjournment was summarised by Mr Parry as follows:
“The position simply put of JKC is that the MUA does not have coverage of the cohort of employees they seek to cover and the Commission has no jurisdiction to determine that as a fact. The MUA has known about all the relevant matters for over a year. It has not progressed the matter with any urgency or vigour. We say in the circumstances where a Court has listed the matter and is prepared to set down those rights it is appropriate to adjourn these proceedings until the outcome of the Court proceeding is known. If the Commission pleases, that's the position of JKC.” 3
[56] Put shortly, Mr Parry asserts that in this application, the MUA is requesting the Commission to exercise judicial power. Secondly, that the MUA has displayed no urgency in exercising its alleged rights of entry, which has led to the dispute in which the Commission would allegedly exercise a judicial power.
[57] The MUA opposed the adjournment.
[58] The MUA contended that the Respondent is “forum shopping”. 4
[59] In the first instance, the MUA contend that JKC attempted to have their jurisdictional objection dealt with as a separate matter to the substantive issue in this application. That is correct. Having failed to delay the proceedings and the Commission dealing with both matters in one hearing, JKC has now taken the jurisdictional issue to the FCA. 5 After waiting approximately two months after the Commission determined to hear both the jurisdictional objection and substantive issue together, the Respondent waited approximately two months to refer the matter to the FCA. The FCA has now set the matter down for 23 November 2015.
[60] Relying on Sterling Pharmaceuticals and ResMed, 6 the MUA submitted that it was entitled to have its alleged rights determined in the ordinary course of proceedings in the Commission. Further, those rights should not be stayed or adjourned just because there is the possibility that the rights of the parties might be determined in another matter, in another jurisdiction
[61] While Mr Parry is correct that this dispute has a protracted history, I was mindful, when making the decision to refuse the adjournment that, at least since 9 March 2015, these proceedings were on a “surer” footing.
[62] After the conference on 17 April 2015, both parties should have been reasonably confident that a hearing was to take place on 1 July 2015. Approximately two months had elapsed before the Respondent determined to refer the matter to the FCA in essentially the same terms as its jurisdictional objection in the Commission.
[63] The Respondent did not, in its response to the originating application or when the matter was listed for hearing or when filing documentary material, indicate that it intended to make an application to the FCA. While the Respondent foreshadowed two weeks before the arbitral hearing that it intended to seek an adjournment, it provided the Commission with no explanation of why it was unable to make such an application to the FCA for over three months after receiving the originating application.
[64] Further, when making its application in the FCA, there was no indication from the Respondent that it sought for the FCA to deal with the matter on an expedited basis.
[65] There was some force to Mr Quinn’s sceptical view that the application to the FCA was “forum shopping” and intended to delay the MUA’s alleged right of entry.
[66] Having considered the history of the dispute, the detriment to the MUA if an adjournment was granted and the time, effort and resources in preparing for the hearing on 1 July 2015, I declined the request to adjourn proceedings.
[67] In conclusion, my Associate will contact the parties for a telephone conference to consider the matters outlined in paragraphs [18] to [47].
COMMISSIONER
Appearances:
D Quinn of counsel on behalf of the MUA.
F Parry QC with C Murdoch of counseland M Osborne of counsel on behalf of the Respondent.
Hearing details:
2015:
Darwin,
1 and 2 July.
1 Exhibit A2(3)(d)
2 Transcript PN1463
3 Transcript PN31
4 Transcript PN37
5 Transcript PN37
6 Re Sterling Pharmaceuticals Pty Limited v the Boots Company (Australia) Pty Ltd [1992] FCA 72 and ResMed Limited v Australian Manufacturing Workers’ Union (No 2) [2015] FCA 537
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<Price code C, PR569343>