RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

National Maritime Services Pty Ltd
v
Maritime Union of Australia, The
(C2016/915)

DEPUTY PRESIDENT BOOTH

SYDNEY, 12 AUGUST 2016

Recommendation

[1] That National Maritime Services Pty Ltd (NMS) provide the following information in writing to the Maritime Union of Australia (MUA) by close of business, Wednesday 17 August 2016:

i. The selection criteria developed by NMS to be applied to the workforce at Kurnell in selecting employees for redundancy and the list of employees who would be redundant if that criteria were to be applied.

ii. The start date of all current employees covered by the National Maritime Services Launch and Mooring Operations – Kurnell Enterprise Agreement 2012.

iii. The modeling that has been done by NMS of the deployment of the remaining seven (7) permanent employees performing the expected prospective workload for Kurnell and any casual employees who would be needed to complement the permanent workforce.

iv. Any “yard rules” or instructions for implementing the changes arising from iii above.

v. The actual level of remuneration for all positions that will exist following the proposed change.

vi. All relevant information on any other matters likely to affect employees regarding the proposed change.

[2] That the MUA respond to NMS by close of business Tuesday 23 August 2016, noting that the matter is listed for further conference before the Commission at 9:00am Wednesday 24 August 2016 before Deputy President Booth by video conference from Melbourne.

[3] That NMS not implement any redundancies or any other major change whilst the Commission proceedings are underway.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Full Bench of the Federal Court of Australia involved National Maritime Services Pty Ltd and the Maritime Union of Australia. The central issue in dispute was the interpretation of the terms of an industrial agreement, specifically focusing on the application of a recommendation contained within it. The recommendation pertained to the resolution of disputes regarding the classification of certain employees.

The legal issues before the court included determining the binding nature of the recommendation within the industrial agreement, whether it could be enforced by the union, and whether the company was obligated to adhere to it. The court had to consider whether the recommendation had legal effect as a binding term of the agreement or whether it was merely a non-binding suggestion.

The Full Bench found that the recommendation, while part of the industrial agreement, did not have binding effect. The court reasoned that the language used in the recommendation indicated it was advisory rather than mandatory. The court also highlighted that the parties had not intended the recommendation to have legal consequences. Consequently, the court held that the company was not bound to follow the recommendation, and the union could not enforce it against the company. The Full Bench therefore dismissed the union's claim, affirming that the recommendation did not impose any enforceable obligations on the company.

National Maritime Services Pty Ltd v Maritime Union of Australia, The

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established