Mr Glenn Bale v Esperance Ports Sea and Land

[2014] FWC 3803

[2014] FWC 3803

FAIR WORK COMMISSION

DECISION

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

Maritime Union of Australia; Mr Glenn Bale
v
Esperance Ports Sea and Land
(B2014/98)

COMMISSIONER CLOGHAN PERTH, 16 JUNE 2014

Proposed protected action ballot by employees of Esperance Ports Sea and Land.

[1] On 23 May 2014, the Maritime Union of Australia (MUA) and Mr Glen Bale (Mr Bale) made application to the Fair Work Commission (Commission) for protected action ballot order(s) (PABOs) pursuant to s.437 of the Fair Work Act 2009 (FW Act).

[2] The employees to be balloted are employees (Employees to be balloted) of Esperance Ports Sea and Land (Esperance Ports or Employer) and are represented by either the MUA or Mr Bale (Bargaining Representatives) in bargaining for a replacement enterprise agreement to the Esperance Ports Sea & Land & MUA Enterprise Agreement 2011/14 (Agreement).

[3] The nominal expiry date of the Agreement is 31 December 2013.

[4] The application was heard on 27 May 2014. At the hearing, Mr Edmonds, for the MUA, submitted that the application is unique in some respects. For this reason, I reserved my decision on the application.

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

RELEVANT LEGISLATIVE FRAMEWORK

[6] The relevant provisions of the FW Act relating to this application are as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) ...

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) ...

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

(6) ...”

“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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) ...

(d) ...”

RELEVANT BACKGROUND

[7] Following receipt of the application, the Employer’s legal representative wrote to the MUA on 26 May 2014. The correspondence relevantly states:

“At this stage, our client has serious concerns regarding two main issues. These are:

(a) the MUA application and associated draft order persist in referring to employees performing maintenance work in circumstances where maintenance technicians are not eligible to be members of the MUA; and

(b) the extent to which Glenn Bale, as a bargaining representative, has, at any relevant stage, genuinely sought to reach agreement within the meaning of the Fair Work Act 2009 (Cth)”. 1

[8] Mr Daniel Falcone is an Organiser with the Western Australian Branch of the MUA. Mr Falcone is representing the MUA as the bargaining representative in negotiations for the replacement enterprise agreement.

[9] Negotiations for a replacement agreement commenced on 3 September 2013 and by 5 March 2014 there had been 10 bargaining meetings.

[10] On 6 March 2014, the MUA made application to the Commission (B2014/46) for a PABO for the same employees to be balloted contained in this application.

[11] In response to application B2014/46, the Employer’s legal representative queried the eligibility of maintenance employees to be included in the group of employees to be balloted. The MUA requested on 13 March 2014 for application B2014/46 to be adjourned sine die while it compiled evidence to resist the Employer’s objection to the maintenance employees being balloted. On 24 March 2014, the MUA discontinued application B2014/46.

[12] Between 18 and 20 March 2014, 23 employees nominated Mr Bale as their bargaining representative for a replacement enterprise agreement.

[13] The appointment of Mr Bale was in accordance with s.178 of the FW Act.

CONSIDERATION

MUA application

[14] The group of employees to be balloted in the MUA application is relevantly described in the application as:

“...who perform Port Operations work within the stevedoring, maintenance, civil and administrative areas...”

[15] The Employer objected to the MUA application on the grounds that the group of employees to be balloted includes maintenance employees who, the Employer asserts, are not eligible to be members of the MUA. In support of its assertion, the Employer submitted to the Commission a copy of the MUA’s Registered Rules which contain at subrule 3(a) the exclusion of “maintenance technicians” from employees eligible to form part of the Union. 2

[16] As a consequence of the Employer’s objection, the MUA sought and was granted permission to amend its application, pursuant to s.586(a) of the FW Act to delete any reference to “maintenance” as part of the group of employees to be balloted. In seeking the amendment to the application, the MUA was not conceding that it did not have coverage of maintenance employees employed by the Employer.

[17] Following the amendment to the application, Mr Falcone gave written and oral evidence on behalf of the MUA that it was genuinely trying to reach agreement with the Employer for a replacement enterprise agreement. The Employer did not cross examine Mr Falcone on his evidence as it related to the genuineness of the MUA trying to reach agreement for a replacement agreement.

[18] The Employer did not provide any evidence.

[19] The Employer did not contest the MUA’s evidence that it was genuinely trying to reach agreement on a replacement enterprise agreement.

[20] Having considered Mr Falcone’s evidence, the submissions of the MUA and the Employer’s position regarding the MUA application only, I am satisfied that the procedural requirements in s.437 and s.438 of the FW Act have been met. Further, I am satisfied that the MUA has been and is genuinely trying to reach agreement with the Employer for a replacement agreement. Accordingly, an order should be made with respect to the MUA.

Mr Bale’s application

[21] Mr Bale was appointed as a bargaining representative and his appointment came into effect on the day specified in the instrument of appointment in accordance with s.178(1) of the FW Act. The instruments of appointment are dated 18 March 2014.

[22] I note that the notice of Mr Bale’s appointment was not given to the Employer, by Mr Falcone, until 31 March 2014.

[23] Mr Bale did not give evidence in the proceedings.

[24] The Employer did not provide any evidence.

[25] Mr Falcone gave evidence that he believed Mr Bale had been a MUA delegate at Esperance Ports for a number of years 3.

[26] Mr Falcone’s evidence was that the majority of the 23 employees who had nominated Mr Bale as a bargaining representative were maintenance employees 4.

[27] Mr Bale has been part of the process for a replacement agreement since September 2013 when negotiations commenced.

[28] Mr Bale is a Leading Hand within the group of maintenance employees 5. To Mr Falcone’s knowledge, the maintenance employees are members of the MUA6.

[29] Mr Falcone gave evidence that the MUA facilitated a meeting of its membership at Esperance Ports. At that meeting, the MUA put forward a solution to the potential difficulties it faced regarding representation 7. At that meeting, the MUA did not suggest that Mr Bale was the most suitable person to represent maintenance employees8.

[30] From Mr Falcone’s evidence, I consider it fair to say that Mr Bale has not submitted a separate log of claims on behalf of the 23 employees he represents 9. Further, that Mr Bale has not advanced a different position to the MUA on behalf of the 23 employees he represents and has had limited, if any, participation at the one and only bargaining meeting on 1 April 2014 since his appointment as a bargaining representative10.

[31] Mr Falcone was asked in cross examination whether, in effect, the MUA is bargaining for “everybody, including the 23”. Mr Falcone’s response was “no, that’s incorrect”. 11

[32] However, Mr Falcone’s written witness statement, at paragraph 18, is that, “...Glen Bale and the MUA were bargaining collectively for the one agreement to apply to everyone” 12. Further, that the 23 employees are “happy” with the current log of [MUA] claims and “they’d like to continue to achieve that outcome”13.

[33] It is not surprising that the Employer put the proposition that the introduction of Mr Bale was to overcome a deficiency of the MUA concerning their inability to represent the 23 employees represented by Mr Bale.

[34] The Employer’s submission regarding Mr Bale appears to hold an inconsistency. If there is no dispute that the MUA, independent of Mr Bale, is genuinely trying to reach agreement on a replacement enterprise agreement and the Employer holds the view that the MUA is bargaining “for everybody including the 23”, why would there be any doubt, or uncertainty, regarding Mr Bale’s genuineness in also trying to reach agreement on a replacement agreement.

[35] The inconsistency in submission is all the more apparent when it appears that, according to the Employer, Mr Bale’s appointment as a bargaining representative has not changed the log of claims or desired outcome of 23 employees in negotiations.

[36] Put simply, if the Employer considers that the MUA is genuinely trying to reach agreement on a replacement enterprise agreement, and the MUA and Mr Bale are one and the same, why would Mr Bale also not be genuinely trying to reach agreement on a replacement enterprise agreement? It is difficult to find support for a conclusion to the contrary.

[37] The real grievance, it appears, for the Employer, is that the MUA is attempting to achieve indirectly what it cannot do directly and that the MUA is effectively representing all the employees, including the maintenance employees.

[38] As I apprehend the Employer’s submission, paragraph 176(3)(b) of the FW Act precludes Mr Bale from representing the 23 employees who have nominated him as their bargaining representative.

[39] It is convenient to again set out paragraph 176(3)(b) of the FW Act:

“(3) Despite subsections (1) and (2):

(a) ...

(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.” (my emphasis)

[40] To make paragraph 176(3)(b) operative, two conditions are required. Firstly, Mr Bale has to be an “official” of an “employee organisation”. I have evidence that Mr Bale is a local Esperance Ports “delegate” but not an official of the MUA. The FW Act distinguishes between an “officer” of an industrial association [employee organisation or union] and an “official” of an industrial association.

[41] Pursuant to s.12 of the FW Act, an “official” of an industrial association means a person who holds an office in, or is an employee of, the industrial association.

[42] The MUA registered rules does not include delegates as persons who hold “office”. For the purposes of this application, “officers” in the Western Australian branch of the MUA extend to Secretary, Deputy Secretary and Assistant Secretary(s).

[43] It was not suggested nor do I have evidence that Mr Bale is an employee of the MUA.

[44] With respect to the second condition of paragraph 176(3)(b) of the FW Act, I have no evidence that the maintenance employees are entitled to be represented by another employee organisation. From the evidence, the Employer submits that the registered rules of the MUA exclude “maintenance technicians” - that is true. However, Mr Edmonds was not prepared to concede that the Esperance Ports “maintenance” employees are excluded and submitted that there is a special meaning to such an occupational description.

[45] The Commission was invited to infer that the MUA’s proposed resolution to the Employer’s objection in B2014/46 is indicative of the Union’s acknowledgement that maintenance employees cannot form part of the MUA. Mr Edmonds’ response is that the MUA’s resolution was one of practical expediency not a concession.

[46] Notwithstanding the submission, I am satisfied that the provisions of s.176(3) are not operative because Mr Bale is neither an employee nor official of the MUA irrespective of whether it has coverage of the maintenance employees referred to in the application.

[47] In the proceedings reference was also made to Regulation 2.06 of the FW Regulations which read:

“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.”

[48] While this was not raised in the Employer’s concern as set out in its correspondence of 26 May 2014, the question is whether Mr Bale is free from “control” or “improper influence” of the MUA. The Australian Concise Oxford English Dictionary defines “control” as “power of directing, command, dominate and directing inactivity”. I have no evidence to support the perspective that Mr Bale is subject to the direction or control of the MUA in his role as a bargaining representative. As a long term delegate of the MUA, he presumably has some alignment and support of the MUA but it would be a long “bridge” to saying that Mr Bale is under the direction of the MUA.

[49] Similarly, there was no suggestion in the hearing that Mr Bale was encumbered with the improper influence of the MUA.

[50] In conclusion, I find there is no application of Regulation 2.06 of the FW Regulations to Mr Bale’s appointment as a bargaining representative.

[51] I now turn to the Employer’s submission that I should draw an adverse inference from the fact that Mr Bale chose not to give evidence on his behalf as one of the applicants in this joint application.

[52] The objects of Division 8-Protected action ballots of Part 3-3 of the FW Act, is to “establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular industrial action for a proposed enterprise agreement” (s.436 of the FW Act).

[53] Subsection 437(1) of the FW Act provides for two or more bargaining representatives, acting jointly, to apply for a PABO. This is what has happened in this application.

[54] Parliament has expressly provided in the FW Act that bargaining representatives can act jointly in seeking a PABO. It would seem that one reason for this arrangement to exist, is that the scheme of the FW Act, in relation to employee representatives, allows for the appointment of bargaining representatives, self appointment as a bargaining representative or default appointment of a union if it is entitled to represent the employees’ interests. Further, where multiple employee organisations are involved in bargaining, each union may nominate their own bargaining representative.

[55] I am unable in the FW Act to detect that, in the case of joint applications by bargaining representatives, it is necessary that each applicant in a joint application give evidence. What is required is that the Commission is satisfied that each applicant “has been and is genuinely trying to reach agreement on a replacement agreement”. That satisfaction is, in my view, not negated by one bargaining representative, who is an applicant, not giving evidence. Such an argument is equivalent to saying that I cannot be satisfied that the outside temperature is not cold because I have not looked at the temperature gauge, when all around me snow lies on the ground, people are dressed in thermal outdoor clothes and a mist is forming when people are breathing.

[56] Having considered the submissions of both parties, the evidence of Mr Falcone and for the reasons outlined above in paragraphs [21] to [55], I am satisfied that Mr Bale has been and is genuinely trying to reach agreement with the Employer on a replacement agreement.

CONCLUSION

[57] Having considered the submissions of both parties in relation to the joint application and the evidence of Mr Falcone and the documentary evidence of the Employer, I am satisfied that the procedural requirements in s.437 and s.438 of the FW Act have been met. Further, for the reasons set out above, I am satisfied that both Applicants have been and are genuinely trying to reach agreement with the Employer for a replacement agreement. Accordingly, orders will be made and issued conjointly with this decision.

COMMISSIONER

Appearances:

L Edmonds for the Applicant and Co-Applicant.

R Wade of counsel for the Respondent.

Hearing details:

2014:

Perth,

27 May.

 1   Exhibit R1

 2   Exhibit R1

 3   Transcript PN107

 4   Transcript PN109

 5   Transcript PN140

 6   Transcript PN153

 7   Transcript PN147

 8   Transcript PN145

 9   Transcript PN160

 10   Transcript PN171 and PN172

 11   Transcript PN173

 12   Exhibit A1

 13   Transcript PN174

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