Swire Pacific Ship Management (Australia) Pty Ltd v Maritime Union of Australia

[2014] FWC 4961

[2014] FWC 4961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Swire Pacific Ship Management (Australia) Pty Ltd
v
Maritime Union of Australia
(C2014/5523)

COMMISSIONER BULL PERTH, 28 JULY 2014

Alleged proposed unprotected industrial action by MUA and Swire Pacific Ship Management (Australia) Pty Ltd employees covered by enterprise agreement following protected action ballot. Stop, not occur or not organise order sought. Costs order sought. Matter dismissed in part.

[1] On 22 July 2014, Swire Pacific Ship Management (Australia) Pty Ltd (Swire) filed an application pursuant to s.418 of the Fair Work Act 2009 (the Act). The matter was listed for hearing on 23 July 2014.

[2] Swire was represented by Mr Follett of Counsel. The Maritime Union of Australia (MUA) was represented by Ms Vernon of Counsel. As the application raised a number of legal issues (discussed briefly below), permission was granted pursuant to s.596(2)(a) of the Act for the parties to be legally represented.

Background

Since January 2013, the parties have been bargaining in relation to a proposed new replacement enterprise agreement. The existing enterprise agreement Swire Pacific Ship Management (Australia) Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 which is still in force, passed its nominal expiry on 30 July 2013.

[3] The MUA obtained a protected action ballot order [PR549395] for its Swire employee members on 16 April 2014, in respect of the proposed new enterprise agreement. The order requires the MUA to provide six calendar days written notice to Swire prior to taking the action. Subsequently the ballot was conducted and a successful result was declared on 12 June 2014, upon which a 30 day period began during which the commencement of protected industrial action would be authorised under the Act. 1

[4] On 16 May 2014, Swire’s bargaining representative for the proposed enterprise agreement, the Australian Mines and Metals Association made application to the Fair Work Commission (the Commission) for bargaining orders against the MUA pursuant to s.229 of the Act. Bargaining orders can be made by the Commission if the Commission is satisfied of the requirements outlined in s.230(3) of the Act which include that a bargaining representative is not meeting the good faith bargaining requirements set out in s.228 of the Act.

[5] On 27 June 2014, the MUA applied to the Commission to extend the time to take protected industrial action. On 1 July 2014, the Commission extended the initial 30 day period pursuant to s.459(3) of the Act by a further 30 days, making 11 August 2014, the last day which industrial action could commence if it is to be protected under the Act.

[6] On 7 July 2014, directions to the parties relating to the bargaining order application were issued by the Commission.

[7] Pending final determination of the bargaining order application, the Commission issued a consent interim order [PR552938] on 9 July 2014, requiring both parties to undertake a number of activities and tasks to be conducted and completed within various time frames. The bargaining order application is listed before the Commission for a full hearing commencing 29 July 2014.

[8] On 18 July 2014, the MUA being the bargaining representative for its members, provided the required six days notice of an intention to take protected industrial action to commence on 25 July 2014, in support of it advancing claims made in respect of the proposed enterprise agreement.

[9] On 22 July 2014, Swire lodged its s.418 application, the subject of this matter, seeking an order to prevent the organising and taking of unprotected industrial action.

Grounds of Application

[10] The s.418 application by Swire was predicated on two grounds:

● the MUA is not genuinely trying to reach agreement.

● failure to comply with bargaining orders of the Commission by the MUA.

[11] Section 413 of the Act lists the common requirements for industrial action to be protected.

[12] Section 413(3)(a) requires that the bargaining representative organising the industrial action must be genuinely trying to reach agreement.

[13] Mr Follett for Swire submitted that for the reasons addressed in its application for bargaining orders that the MUA is not genuinely trying to reach an agreement. These reasons include allegations that the MUA is misrepresenting bargaining outcomes, is surface bargaining and pursuing unlawful and/or non permitted matters.

[14] A further common requirement under s.413 is contained at sub section (5) which states that the bargaining representative organising the industrial action must not have contravened any orders that apply to them that relate to a matter that arose during the bargaining for the agreement. Swire submitted that the interim orders that were issued by the Commission on 9 July 2014, had not been complied with by the MUA by the due date and nor have the orders been complied with in substance after the due date, as such, the proposed industrial action was not protected action.

MUA Response

[15] The MUA maintained that the proposed protected industrial action which followed a protected action ballot application and proper notification to Swire of the intent to take protected industrial action was and still remains legitimate protected industrial action.

[16] A number of arguments were put by the MUA in relation to why the Swire propositions should not be accepted.

Not genuinely trying to reach agreement

[17] It was put that the test for genuinely trying to reach agreement was a different test from determining whether a party was bargaining in good faith. As Swire’s bargaining order application was already listed for hearing it would not be appropriate for another member of the Commission to deal with the same question.

Contravention of orders

[18] Ms Vernon raised a number of objections to the claim that the MUA had not complied with a bargaining order of the Commission. The first proposition was that the Commission has no power to determine whether an order has been complied with or not, this power rests with the Federal Court or Federal Circuit Court. But even accepting the Commission had the relevant power, there was still compliance, albeit late. This then raised the issue of whether substantial compliance had occurred and whether a failure to comply within the specified time frame was procedural non compliance as opposed to substantial non compliance.

[19] It was also not accepted that the Commission orders of 9 July 2014, for the purposes of s.413(5) related to bargaining for the proposed agreement, but were akin to procedural orders of the Commission, relating to the legal proceedings concerning Swire’s good faith bargaining order application.

Proceedings

[20] At 2pm on the second day of the hearing, the MUA advised the Commission that they were withdrawing their notice to Swire of its intention for MUA members to take protected industrial action. On this basis the MUA argued that the s.418 application must be dismissed as there was no proposed industrial action for the Commission to restrain from being organised.

[21] Despite the withdrawal of the notice by the MUA, Swire still pressed its application for a s.418 order on the basis that the MUA could/would reissue its notice of intent to take protected industrial action. This was particularly the case as any protected industrial action without the need for a further protected action ballot application needs to occur by 11 August 2014.

Legislative framework

[22] Section 418 of the Act mandates the Commission to order that proposed industrial action not take place, if it appears that proposed industrial action is not protected.

418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

[23] On the basis that there is no actual industrial action occurring, an order under s.418 of the Act can only proceed where it appears that unprotected industrial action is threatened, impending, probable or being organised.

[24] In respect to impending, probable or threatened industrial action, s.418 of the Act requires the Commission to reach a state of satisfaction and if that is reached, then the Commission must issue an order as sought, either in the terms of the draft order provided by Swire or in terms that the Commission believes is appropriate.

[25] On the basis that the MUA have withdrawn their notice of intention to take “protected” industrial action I cannot conclude that industrial action, protected or otherwise is being organised.

[26] While it is possible that the MUA may reissue its notice of intent to take protected industrial action in the near future, thus making industrial action probable, without having concluded that such action would be unprotected as the notice has been withdrawn, the Commission is without jurisdiction to make the order as sought by Swire.

[27] In any event a future notice by the MUA to take protection industrial action must be provided to Swire six days prior to the action occurring enabling the matter to be brought before the Commission and dealt with on its merits at the time.

Substituted Service

[28] Swire sought an order for substituted service in this matter which the Commission will issue as being appropriate in this case [PR553418].

Costs

[29] On withdrawal of the MUA’s notice to take protected industrial action and at the conclusion of these proceedings, Swire sought an order for costs which the MUA opposed.

[30] Swire were requested to reduce to writing their costs application upon which the MUA will be given an opportunity to reply in writing, the matter will then be determined subject to any party requiring a further hearing or response.

[31] The application is otherwise dismissed.

COMMISSIONER

Appearances:

Mr M Follett of Counsel on behalf of Swire Pacific Ship Management (Australia) Pty Ltd.

Ms K Vernon of Counsel on behalf of the Maritime Union of Australia.

Hearing details:

2014.

Perth:

23 and 24 July.

 1   s.459 of the Act.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR553466>