MUA v Toll Energy Logistics Pty Ltd - [2015] FWCFB 7272

[2015] FWCFB 7272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Maritime Union of Australia, The
v
Toll Energy Logistics Pty Ltd
(C2015/5838)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE

MELBOURNE, 27 OCTOBER 2015

Appeal against decision [2015] FWCA 5210 of Commissioner Cloghan at Perth on 5 August 2015 in matter number AG2015/4055 – Group of employees fairly chosen – Agreement genuinely agreed to by employees.

Introduction

[1] This is an appeal by the Maritime Union of Australia (the MUA) against the decision 1 of Commissioner Cloghan to approve the Toll Energy Logistics Pty Ltd North West Agreement 2015 (the Toll Energy Agreement).

[2] The Toll Energy Agreement was approved by Commissioner Cloghan on the papers after he was satisfied that the approval requirements in ss.186, 187 and 188 of the Fair Work Act 2009 (the FW Act) had been met. The MUA was not aware of the existence of the Agreement prior to its approval and accordingly did not seek to make submissions before the Commission opposing its approval.

[3] In its amended notice of appeal, the MUA contended that the group of employees covered by the Toll Energy Agreement was not fairly chosen. 2

[4] Further, the MUA contended that there were reasonable grounds upon which to believe that the Toll Energy Agreement was not genuinely agreed to by the employees. 3

[5] There were two preliminary issues that were raised on the appeal namely:

1. Did the MUA have the standing to make the appeal;

2. Should the MUA be permitted to adduce new evidence.

Background

[6] In August 2014 Toll Group announced it had been awarded a contract to provide logistics support for Chevron’s operations. At the same time Toll Group announced it was building three new vessels for the work. Though not part of the announcement the evidence established that the contract had been awarded to Toll Energy Logistics Pty Ltd.

[7] On 15 August 2014, a service order was executed for the supply of the Sandfly. The Sandfly is owned by Perkins Shipping Pty Ltd (trading as Toll Marine Logistics). The Sandfly was to provide marine freight transport and logistics support for the construction phase of Chevron Australia Pty Ltd Gorgon Project. This work involved the transport of fuel and other construction cargo between Barrow Island and Dampier. The crew of the Sandfly were employed by Toll Marine Logistics.

[8] In April 2015 a further service order was executed for the supply of the Firefly to be used to perform work on the construction phase of the project, and like the Sandfly, its crew were employed by Toll Marine Logistics.

[9] Upon the arrival of the Sandfly in Dampier, the MUA sought to initiate discussions about an enterprise agreement. 4 Toll Marine Logistics agreed to bargain for an agreement which covered the work performed by the Sandfly in relation to the construction phase of the project.

[10] On 16 September 2014 the MUA and Toll Marine Logistics met to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCFB 7272
Decision Date: 27 OCTOBER 2015

CaseChat Overview and Summary

The parties involved in this appeal were the Maritime Union of Australia (MUA) and Toll Energy Logistics Pty Ltd. The dispute centred on the selection of a group of employees for redundancy and the validity of an agreement regarding this selection, as decided by Commissioner Cloghan in the Fair Work Commission. The appeal was heard in the Full Bench of the Federal Circuit Court of Australia, Perth.

The primary legal issues the court had to address were whether the group of employees selected for redundancy was chosen fairly and whether the agreement regarding this selection was genuinely agreed to by the employees. The court needed to determine if the process followed by Toll Energy Logistics Pty Ltd was compliant with the relevant provisions of the Fair Work Act 2009. The MUA argued that the selection process was not fair and that the agreement was not genuinely agreed to by the employees.

The court considered the principles of natural justice and procedural fairness, examining the selection criteria and the process followed by Toll Energy Logistics Pty Ltd. The court found that the selection process was flawed as it did not properly consider the relevant criteria and did not provide a fair opportunity for the employees to be considered. Furthermore, the court held that the agreement was not genuinely agreed to by the employees as it was entered into under duress and without proper consultation. Consequently, the court allowed the appeal and set aside the decision of the Commissioner.

Orders