MMA Offshore Logistics Pty Ltd T/A MMA Offshore Logistics

[2016] FWC 3789

[2016] FWC 3789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

MMA Offshore Logistics Pty Ltd T/A MMA Offshore Logistics
(AG2016/3091)

COMMISSIONER CLOGHAN PERTH, 8 JULY 2016

Application for approval of the MMAOL Pty Ltd Enterprise Agreement 2016 - whether the MUA has a right to be heard in relation to approval of the proposed enterprise agreement.

[1] On 4 May 2016, MMA Offshore Logistics Pty Ltd trading as MMA Offshore Logistics (MMAOL or Employer) made application to the Fair Work Commission (Commission) pursuant to s.185 of the Fair Work Act 2009 (FW Act) for approval of an enterprise agreement.

[2] The name of the enterprise agreement is the MMAOL Pty Ltd Enterprise Agreement 2016 (MMAOL Agreement).

[3] In support of approval of the MMAOL Agreement, the Applicant provided:

• a redacted Form F16-Application for approval of an enterprise agreement;



• Form F17-Employer’s statutory declaration in support of an application for approval of an enterprise agreement;



• a copy of the Notice of employee representational rights; and



• a redacted copy of the proposed MMAOL Agreement.

[4] MMAOL, at the time of making its application, also sought a Confidential Order pursuant to s.594(1)(c) and (d) of the FW Act.

[5] On 6 May 2016, the Maritime Union of Australia (MUA) emailed the Commission and referred to MMAOL’s application. The MUA stated in its email that the Union “has members, and is entitled to represent the industrial interests of employees, who are employed by the Applicant within the scope of this proposed enterprise agreement”.

[6] Relevantly, the MUA sought:

• to be heard in relation to the application; and



• be provided with a copy of, or access to, the case file.

[7] On 9 May 2016, my Associate provided the MUA with a copy of the redacted Form F16, the Form F17 and a copy of the proposed MMAOL Agreement.

[8] On 11 May 2016, my Associate advised the MUA and MMAOL’s representative, the Australian Mines and Metals Association (AMMA) of a conference on 17 May 2016.

[9] On 11 May 2016, the Commission was advised that MMAOL opposes the MUA’s request to be heard in relation to the application and access to the Commission file.

[10] The Commission, on 11 May 2016, was provided with un-redacted copies of Form F16 and the proposed MMAOL Agreement. MMAOL requested the receipt of these documents be considered within the context of its request for a Confidentiality Order.

[11] At the conference on 17 May 2016, MMAOL was represented by Mr R Dalton of Counsel and Ms A Mansini, Director, Legal and Migration Services, AMMA.

[12] The MUA was represented by Mr M Ritter of Counsel and Ms E Palmer, Industrial Officer.

[13] The MUA’s right to be heard with respect to MMAOL’s application remained unresolved at the conclusion of the conference. The parties agreed that determination of the matter should proceed by way of written submissions.

[14] On 20 May 2016, I issued an Order pursuant to s.594(1)(a), (b) and (c) of the FW Act.

[15] This is my decision and reasons for decision on whether the MUA should be heard in relation to the Commission’s approval of the proposed MMAOL Agreement.

RELEVANT LEGISLATIVE FRAMEWORK

[16] Section 590 of the FW Act provides:

“(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) …;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d)  by taking evidence under oath or affirmation in accordance with the regulations (if any);

…”

[17] The Full Bench in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited (Collinsville) [2014] FWCFB 7940 stated at paragraph [48]:

“It is accepted that the FW Act does not provide for intervention in proceedings before the Commission by a non party. Section 590 of the FW Act provides, relevantly that the Commission may, except as provided by the FW Act, inform itself in relation to any matter before it in such manner as it considers appropriate, including by inviting, subject to any terms and conditions determined by the Commission, oral or written submissions.”

[18] These views are repeated later in paragraph [75]:

“We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation…”

CONSIDERATION

[19] Stripped of its bare essentials, MMAOL is seeking approval of the MMAOL Agreement. The MUA made a submission on 20 May 2016, “in support of the MUA’s request to be heard or permission to be granted to participate in proceedings”. 1 The MUA seek:

“…that it be granted permission to be heard as a full participant in the proceedings including permission to lead its own evidence and to cross examine any witnesses called by the Applicant. The MUA will seek to obtain documents in advance of the final hearing of the application including the instruments, appointments of bargaining representatives and the emails referred to in question 12 of the Form F17, subject to confidentiality orders or other measures to protect the identify of individual employees involved in the bargaining.”

MUA Submission

[20] The MUA seeks permission to participate in the Commission’s approval of the proposed MMAOL Agreement on the following grounds:

“(a) The MUA will be likely to have members who are covered by the agreement, now or in the future.

(b) The factual background of bargaining with MMAVO [MMA Vessel Operations Pty Ltd], and the no votes to whole of fleet agreements, prior to the MMAOL agreement being made.

(c) There is an arguable case that MMAOL has manipulated the agreement-making process to obtain an agreement that is inferior to the 2010 Agreement, with respect to employees covered or represented by the MUA, without the MUA being involved in bargaining for the agreement, such that the Commission cannot be satisfied that the group of employees to be covered by the MMAOL Agreement was fairly chosen.

(d) This argument is enhanced if the employees who made the agreement are not MUA covered employees.

(e) The bargaining representatives for the employees who made the agreement may be in such a position to the employees so that Regulation 2.06 cannot be satisfied and the Commission cannot be satisfied that the MMAOL Agreement was genuinely agreed to.

(f) The MUA may have been the default bargaining representative of some or all of the employees bargaining representatives, at some point in time.

(g) Alternatively to (f), if the employees bargaining representatives are not MUA employees then the argument summarised at (c) above is enhanced.

(h) The issues raised above will not be able to be properly ventilated or argued in the absence of the participation of the MUA, who would like to obtain documents, provide evidence and cross examine witness as part of these proceedings.”

MMAOL Submission

[21] The Applicant submits that:

• The MUA has not filed any evidence.



• The MUA’s submission “trespasses” into matters related to the substantive application and beyond the Commission’s directions related to the MUA request to be heard with respect to the application.



• The MUA is not a bargaining representative for the proposed enterprise agreement.



• Even if the MUA establishes that it was a default bargaining representative for a short period of time, that status only confers a right to give notice that it wants to be covered by the proposed enterprise agreement.



• The MUA has not provided any reason to suggest that there will be a benefit to the MUA participating in the proceedings in a capacity other than as a default bargaining representative for a short period of time.

WHAT IS THE MUA’S STATUS AS A BARGAINING REPRESENTATIVE?

[22] The Employer advises, in its Form F16, that there were no employee organisations as bargaining representatives.

[23] The Agreement covers employees outlined in the schedules attached to the proposed MMAOL Agreement, who may be or are likely to be eligible to be members of the:

• Australian Maritime Officers’ Union



• Australian Institute of Marine and Power Engineers



• Maritime Union of Australia.

[24] Notwithstanding the employees’ eligibility to belong to one of the above employee organisations, the employees have chosen to nominate another person as their bargaining representative.

“Default” Bargaining Representative

[25] The MUA does not submit that it has been appointed as a bargaining representative for the proposed agreement. Accordingly, it contends that, at some point, it may have been the default bargaining representative.

[26] The MUA’s contention that it may have been a “default bargaining representative” is premised on the basis that an employee to whom the MMAOL Agreement applies and who voted for the Agreement is a member of the Union.

[27] On the material provided to the Commission, I have no knowledge whether the employees who voted for the Agreement are members of the employee organisations in paragraph [23].

[28] Even if the employees who are eligible to be a member of the employee organisations in paragraph [23] are members, those persons have appointed, in writing, another person to be the bargaining representative.

[29] Further, assuming that the MUA is a default bargaining representative, in Collinsville, the Full Bench stated that does not result, “in the organisation having standing to make submissions or to otherwise be heard in opposition to an application of an agreement” 2.

[30] I now turn to the MUA “grounds” set out in paragraph [20].

(a) Likelihood of the MUA having members now or in the future.

[31] In Collinsville, the Full Bench disposed of this contention as follows:

“[69] That an employee organisation has an ongoing relationship with its members who might become covered by an agreement and has a role under its rules in representing those members is not relevant in the context of a right to be heard in relation to the approval of an agreement. The FW Act does not confer a right on employee organisations (other than in the case of the greenfields agreement) to be covered by an agreement if it was not a bargaining representative. Likewise, the FW Act does not confer upon an employee organisation a role in enterprise bargaining under the FW Act outside of its status as a bargaining representative. The mere fact that an employee organisation has an ongoing relationship with its members and is entitled to represent their industrial interests is not a sufficient basis to conclude that the approval of an enterprise agreement will adversely affect a right, interest or legitimate expectation of that employee organisation.”

[32] I adopt the statement of the Full Bench and it would serve no purpose in adding any further comment.

(b) The factual background of bargaining with MMAVO and the no votes to whole of fleet agreements, prior to the MMAOL agreement being made.

[33] The parties to the proposed MMAOL Agreement are MMAOL and each employee performing the duties in the classifications contained in the schedules attached to the Agreement.

[34] The MUA have provided a brief history of bargaining between MMA Vessel Operations Pty Ltd (MMAVO) for bargaining on a replacement enterprise agreement to the Mermaid Marine Vessel Operations Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (2010 Agreement) and the Mermaid Marine Operations Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers Gorgon Enterprise Agreement 2011 (2011 Gorgon Agreement).

[35] The MUA acknowledge that MMAVO and MMAOL are separate but discrete subsidiaries of MMA Offshore Limited.

[36] Not only does the MUA set out the unsuccessful negotiations for the successor replacement agreement at seafarer level but also negotiations at “Officer” and “Engineer” level, and the history of negotiations with other employers completely unrelated to MMAOL.

[37] It is not uncommon for businesses to have multiple enterprise agreements covering their employees. The different enterprise agreements generally take into account differences in geography, occupations and distinct operational parts of the businesses.

[38] The MUA has expressed “concerns” that approval of the proposed MMAOL Agreement would have on both bargaining for the 2010 Agreement and 2011 Gorgon Agreement.

[39] I am not persuaded that an employee organisation’s concerns or supposition of what may happen in the future, gives rise to a right, or even expectation, to be heard with respect to an application to approve a separate and distinct enterprise agreement.

[40] The MUA has statutory rights and entitlements to pursue any concerns and suspicions which may come to fruition, in the future, with respect to the MMAOL Agreement should it be approved.

(c) Arguable case that the group of employees to be covered by the MMAOL Agreement was not fairly chosen.

[41] The MUA submit that the Commission cannot be satisfied that the group of employees to be covered by the MMAOL Agreement was fairly chosen, and accordingly, the Commission cannot approve the MMAOL Agreement pursuant to s.186(3) of the FW Act.

[42] The number of employees who were employed and voted on the proposed enterprise agreement was five (5).

[43] The MUA concede that it is possible to make an enterprise agreement with a small number of employees.

[44] In its application, MMAOL state, in the Form F17, that the proposed enterprise agreement does not cover all employees of the employer, however:

“The company’s business is to provide labour on hire to its clients who operate vessels in the Maritime Industry and Land Transport and Logistics Industry.

This agreement covers only the operational classifications necessary to operate vessels in the maritime industry. The operational classifications necessary to operate in the Land Transport and Logistics Industry are covered by a separate enterprise agreement.

The company has adopted this structure due to clear difference in the skills, qualifications and nature of work associated with maritime and land logistics operations.”

[45] In its outline of 20 May 2016, the MUA state that “there is a very real concern” that the group of employees to be covered were not fairly chosen.

[46] The MUA does not state why the group of employees to be covered by the MMAOL Agreement was not fairly chosen. However this is the, “primary basis on which the MUA submit that its request to be heard or participate should be granted”. 3

[47] The MUA state that, “the matters raised [fairly chosen] in the MUA’s outline of argument dated 20 May 2016 (MUA Outline) can be supported by evidence at the hearing”. 4

[48] In Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16 (John Holland), the Full Court of the Federal Court, at the following paragraphs state:

“27. In Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84, a Full Court (referring to the expression “fairly chosen” in s 186(3)) said:

99 … That expression is not defined in the FW Act. It seems to have been assumed that there must have been a “choice” by someone as to the range of employees that would be covered, and it may be that this necessarily follows from the highly discretionary definition in the FW Act of what amounts to being “covered” by an enterprise agreement: see s 53(1). Subdivision A of Div 4 seems to be based on an assumption that the initiative for the making of an enterprise agreement will come from the employer, and it may be that s 186(3) should be read against such an understanding. …

28. In the case of a greenfields agreement it may be more readily accepted that any choice of the group to be covered by the agreement may involve an element of negotiation, having regard to the generally accepted representative character of unions. In the case of an agreement made with a group of employees, particularly a very small group, the dynamics are likely to be quite different.

29. Where only a small group of employees is involved, in my respectful view it does follow from the legislative scheme that the group of employees referred to in s 186(3) will have been chosen by the employer, as will the terms to be offered…

32. In my view, it is clear from those prescriptions that the references in s 186(3) and (3A) to whether “the group of employees covered by the agreement was fairly chosen” must, in a case of the present kind, be a reference to a choice by the employer.

33. There is no requirement that employees who vote to make an agreement must have been in employment for any length of time, and there is no requirement that they remain in employment after the agreement is made. Presumably, the presently employed members of such a group will act from self-interest, rather than from any particular concern for the interests of future employees. The potential for manipulation of the agreement-making procedures is, accordingly, a real one. However, no suggestion of that kind is made in the present case and the possibility may therefore be put to one side for the purpose of the discussion. That is an important consideration because it suggests, as the primary judge thought, that determination of whether the group of employees was fairly chosen in the present case needed to bring to account the business rationale for the choice, as well as deal with any possibility of unfair exploitation. It was not irrelevant in that assessment to bear in mind, as the primary judge said, that the agreement provided benefits, not detriments, for those to whom it would apply.”

[49] The proposed agreement is intended to cover and apply to the employer and employees in any of the classifications set out in the MMAOL Agreement. I am satisfied, on the material provided in the application, that the employees who were employed and voted on the MMAOL Agreement, were either members of or eligible to be members of the employees organisations listed in paragraph [23].

[50] With respect to MMAOL’s submission that the Union has not provided any evidence in support of its contention that the employees were not fairly chosen, the MUA state that this can be done when, and if, the Commission grant its request to be heard or participate in proceedings. Consequently, the Commission should not deny the MUA’s request to be heard or participate in proceedings because it has not produced any evidence in support of its contention.

[51] Having made the assertion that the employees were not fairly chosen, the MUA is confronted with a choice between, at least, two alternative courses of action. The MUA can provide evidence to support the contention that the Commission cannot be satisfied that the group of employees was not fairly chosen. In doing so, the MUA may provide sufficient doubt for the Commission to be satisfied that the employees were not fairly chosen. On that basis, the Commission may exercise its discretion to allow the MUA to be heard in relation to approval of the proposed enterprise agreement.

[52] Alternatively, the MUA can elect not to provide evidence and have the Commission speculate that its assertion can be determined, only by way of granting the MUA’s request to be heard or participate in proceedings.

[53] I am not prepared to speculate on the MUA’s evidence, particularly when I consider the guidance given by the Full Court in John Holland.

[54] If, as the MUA assert, it has evidence to support its contention that the group of employees were not fairly chosen, I will give the Union the opportunity to provide that evidence to the Commission and have it tested.

[55] I have a real concern that the process of approval of an enterprise agreement be delayed on a condition by a “non-party” [MUA] which states that it will provide evidence on its assertion that employees have not been fairly chosen, only after it has been given permission to be heard or participate in proceedings.

[56] The scheme of the FW Act does not mandate an employee organisation being involved in bargaining. Enterprise agreements are between employees and employers. It is for an employee to determine who becomes involved as bargaining representative.

[57] Secondly, if it is true that a related company’s employees did not approve a similar enterprise agreement, that is a matter for those employees. In my view, these five (5) employees are not bound by a ballot made elsewhere.

[58] It is noticeable that the MUA infer that it was MMAOL which made the decision to exclude the MUA; only employees can make the express decision as to which person is to be their bargaining representative. In any event, subject to the provisions of the FW Act, it appears to me that the view of the Full Bench in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sustaining Works Pty Limited[2015] FWCFB 4422 (Sustaining) which relied on John Holland,is that an employer pursuing a course of action which it considered not achievable with the involvement of an employee organisation, is a legitimate “business rationale”. 5

(d) Employees who made the MMAOL Agreement are not MUA covered employees

[59] On the material provided in the application, I am satisfied that the persons who voted and made the MMAOL Agreement included an employee who was eligible to be a member of the MUA.

(e) Fair Work Regulation 2.06

[60] Fair Work Regulation 2.06 states:

“2.06 Appointment of bargaining representatives—independence
A bargaining representative of an employee must be:

(a) free from control by the employee’s employer or another bargaining representative; and
(b) free from improper influence from the employee’s employer or another bargaining representative.”

[61] Firstly, it is not bargaining representatives who “made the agreement” as set out in the MUA’s submission. The proposed enterprise agreement is “made” when a majority of employees cast a valid vote to approve the agreement pursuant to s.182 of the FW Act.

[62] Secondly, the MUA state that because the bargaining representative for the employees may have been under the control or influence of the Employer, I cannot be satisfied that the MMAOL Agreement “was genuinely agreed to”.

[63] In short, the MUA is submitting that I cannot be satisfied that the proposed agreement was genuinely agreed to by employees on the basis of something that may or may not exist. Put differently, the MUA infer that because I have no material to disprove that the employees’ bargaining representative, was not under the influence or control of the Employer, I should presume and proceed on the basis that the employee bargaining representative was under the control of and influence of the Employer.

[64] I do not accept the submission and it reminds me of the proposition that, “until you can prove God doesn’t exist – God exists”.

[65] I have nothing in the application which demonstrates that the integrity of Regulation 2.06 has been compromised.

(f) MUA default bargaining representative

[66] I have considered this ground in paragraphs [22] to [29].

(g) Alternative to (f)

[67] Not relevant.

(h) Issues raised in (a)-(g) as relevant cannot be properly “ventilated or argued” in the absence of the participation of the MUA, who would like to obtain documents, provide evidence and cross examine witnesses as part of these proceedings.

[68] In my view this is a view or opinion rather than a “ground” for the MUA to be heard or to participate in proceedings regarding the approval of the MMAOL Agreement.

CONCLUSION

[69] Having considered the MUA’s submission, it appears that it has assumed and expects the unsuccessful bargaining, as set out in its “Factual Contentions”, should continue.

[70] In my view, what has occurred in bargaining with another employer may or may not be relevant. However, unless I am directed to a statutory provision to the contrary, I am inclined to consider the approval of the MMAOL Agreement pursuant to the provisions in ss.186 and 187.

[71] The MUA state, without equivocation, that it has evidence to support its contention that the group of employees to be covered by the MMAOL Agreement was not fairly chosen. Pursuant to s.590(c) and (d) of the FW Act, I intend that the Commission inform itself in the following way:

• the MUA is required to provide copies of documents or records it has in its possession, which support its assertion that the Commission cannot be satisfied that the group of employees to be covered by the MMAOL Agreement was not fairly chosen; and



• by taking, under oath or affirmation, any oral evidence from MUA officers or officials which support its assertion that the Commission cannot be satisfied that the group of employees to be covered by the MMAOL Agreement was not fairly chosen. Any oral evidence must be reduced to writing prior to any hearing for it to be received into proceedings. MMAOL will have the opportunity to “test” any evidence.

[72] The above information, including witness statements (if any), is to be provided to MMAOL by no later than 4:00 pm Friday 15 July 2016 and copy to the Commission.

COMMISSIONER

Final written submissions:

MUA: 20 and 30 May 2016.

MMAOL: 25 May 2016.

 1   MUA’s submission dated 20 May 2016 at paragraph 7

 2   Collinsville paragraph [38]

 3   MUA submission dated 30 May 2016 at paragraph 2

 4   ibid at paragraph 4

 5   Sustaining at paragraph [26]

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