Teekay Shipping (Australia) Pty Ltd v Australian Institute of Marine and Power Engineers, The

[2014] FWC 8465

[2014] FWC 8465

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Teekay Shipping (Australia) Pty Ltd
v
Australian Institute of Marine and Power Engineers, The
(C2014/7688)

COMMISSIONER CLOGHAN PERTH, 27 NOVEMBER 2014

Application for an order that industrial action by employees or employers stop etc.

[1] On 11 November 2014, Teekay Shipping (Australia) Pty Ltd (Applicant or Teekay) made application to the Fair Work Commission (Commission) for an order to stop industrial action pursuant to s.418(2)(b) of the Fair Work Act 2009 (FW Act).

[2] On 11 November 2014, I issued an Interim Order to stop industrial action by certain employees of Teekay which was due to commence at 6:00 am on 12 November 2014 for a period of four (4) hours. The hearing into the application followed a conference of the parties earlier on 11 November 2014.

[3] The Interim order was issued pursuant to s.420 of the FW Act and applied to and was binding upon:

• Teekay;



• the Australian Institute of Marine and Power Engineers (AIMPE), and its officers, delegates, employees and agents;



• employees of Teekay who are members of AIMPE and engaged in work whose employment is regulated by the Teekay Shipping (Australia) Port Hedland Towage Operations Engineers Fair Work Act 2010 (Agreement).

[4] These are my reasons for issuing the Interim Order.

RELEVANT BACKGROUND

[5] From July 2013, Teekay has been in discussions with AIMPE for a replacement enterprise agreement to the current Agreement. The current Agreement nominally expired on 31 March 2014.

[6] At the time of discussions with AIMPE, Teekay also commenced negotiations for similar replacement agreements with the Maritime Union of Australia (MUA) and the Australian Maritime Officers’ Union (AMOU).

[7] On 25 November 2013, Teekay made application to the Commission to deal with a bargaining dispute pursuant to s.240 of the FW Act. Subsequently, the Commission facilitated discussions between the parties by way of conferences. In addition, negotiations have taken place outside the Commission between the parties.

[8] Discussions between Teekay and the MUA and AMOU progressed to the extent that a proposed replacement agreement was put to the respective employees for whom the unions are the bargaining representatives. The MUA and AMOU supported the proposed replacement agreements.

[9] The proposed agreements went to ballot between 4 and 9 November 2014. The result of the ballot was declared on 10 November 2014. Members of the MUA and AMOU almost unanimously voted to approve the proposed replacement agreements.

[10] On 4 November 2014, Teekay provided employees who are members of AIMPE access to a copy of a proposed replacement enterprise agreement to the current Agreement. Voting for the replacement enterprise agreement commenced on 12 November 2014. The proposed replacement agreement circulated by Teekay for ballot was not supported by AIMPE.

[11] On 6 November 2014, AIMPE forwarded to Teekay a notice of employee claim action commencing at 6:00 am on 12 November 2014.

[12] It is also relevant to note that negotiations for the replacement enterprise agreement for employees of Teekay who are represented by AIMPE, did not progress in the same manner as MUA and AMOU.

[13] Since early 2014, AIMPE has insisted that it meet separately to the MUA and AMOU to progress negotiations for a replacement enterprise agreement.

[14] Between 31 July and 12 September 2014, Teekay submitted that AIMPE failed to participate or bargain for a replacement agreement.

[15] On 12 August 2014, the Commission issued a Protected Action Ballot Order in respect to employees represented in bargaining by AIMPE. The subsequent ballot endorsed protected industrial action which, following an application to extend pursuant to s.459 of the FW Act, had to be taken on or before 22 November 2014.

[16] In early September 2014, AIMPE advised Teekay that it was changing its bargaining representatives.

[17] On 29 October 2014, AIMPE advised Teekay that elections for AIMPE bargaining delegates had been completed.

[18] Accordingly, the Applicant submits that there has been no direct bargaining between 31 July and 29 October 2014 between Teekay and AIMPE for a replacement enterprise agreement.

[19] As I understand submissions, there were no negotiations between the parties between 29 October and 6 November 2014, when Teekay was advised of employee claim action.

[20] For completeness, I note that to the extent of bargaining which occurred between 31 July and 29 October 2014, comprised of an email copy of a proposed replacement agreement being sent to AIMPE on 5 August 2014 and a response being received from AIMPE on 24 September 2014.

RELEVANT LEGISLATIVE FRAMEWORK

[21] For the purposes of these reasons for decision, it is not necessary to set out the relevant legislative provisions which were not disputed by the parties.

CONSIDERATION

[22] For industrial action to be protected industrial action, it must meet the common requirements in Subdivision B of Division 2 of Chapter 3 of the FW Act.

[23] For the purposes of this particular application, the provisions of s.413(3) of the FW Act require that AIMPE, as the bargaining representative, be genuinely trying to reach an agreement with Teekay.

[24] There were two “limbs” to the Applicant’s application that the proposed industrial action was not protected. Both “limbs” are founded on whether, pursuant to s.413 of the FW Act, AIMPE is genuinely trying to reach an agreement with Teekay on a replacement enterprise agreement.

[25] The first “limb” of Teekay’s submission relates to the “genuineness or authenticity of an applicant’s efforts to reach that goal [an enterprise agreement] will turn on its motivation, intention, object or purpose” 1.

[26] Shortly put, Teekay submits that the proposed employee claim action intended to commence on 12 November 2014, was not for the purpose of advancing a proposed enterprise agreement, but taken in retaliation for Teekay putting a proposed replacement enterprise to its employees (and AIMPE members) without the support of AIMPE. In particular, Teekay highlights that the commencement of the industrial action coincides with the commencement of voting for the Employer’s proposed enterprise agreement.

[27] The second “limb” related to an issue which I raised in conference earlier on 11 November 2014.

[28] Part 2-4 of the FW Act relates to enterprise bargaining. Division 2 of Part 2-4 provides the statutory framework in which employers and employees may make enterprise agreements. Division 3 is entitled “Bargaining and Representation” during “Bargaining”. Division 4 deals with the approval of enterprise agreements.

[29] The essentials of the FW Act provides for bargaining (and its associated requirements). After bargaining, the FW Act provides for the approval of a proposed enterprise agreement by employees. Should employees approve a proposed enterprise agreement, the FW Act deals with the approval of an enterprise agreement.

[30] AIMPE gave notice of employee claim action on 6 November 2014, which was the day after the “access period” for a proposed enterprise agreement. For Teekay, it had ceased “bargaining” with AIMPE and had moved to the pre-approval process by employees.

[31] AIMPE, in giving notice of employee claim action, asserts that it is genuinely trying to reach agreement on a proposed enterprise agreement. Consequently, the question to be determined is whether AIMPE can genuinely be trying to reach agreement of a replacement enterprise agreement when Teekay is in the process of seeking approval of a proposed replacement enterprise by employees.

[32] Employees find themselves in the position of proposing to take employee claim action to support and advance their claims, while at the same time voting on a proposed enterprise agreement.

[33] For AIMPE to say, as it did, that it is genuinely trying to reach agreement requires the other party, in this case, Teekay, to be in a position to agree with any proposals of the Institute. While the parties are “bargaining”, the ability of Teekay to agree or be persuaded to have the same views as AIMPE exists. However, it would seem incongruous to conclude that Teekay is in a position to reach agreement during a period when its proposed enterprise agreement is being voted upon by those employees. Stating a conclusion that one party is genuinely trying to reach an agreement needs to be supported by more than just an assertion, especially if it is incompatible with the circumstances of the other party with whom agreement is required.

[34] Simply put, AIMPE’s position has to be considered within the totality of the circumstances and not just an acceptance of its asserted position.

[35] I was satisfied that the two “limbs” of Teekay’s submissions were arguable as to whether the proposed employee claim action was protected industrial action.

CONCLUSION

[36] Teekay, having put its oral submissions above, sought to provide written submissions and evidence in support of its argument that the proposed industrial action was not protected. Teekay requested their application be adjourned to 14 November 2014 and an interim order issued.

[37] AIMPE submitted that the application proceed. However, Mr Byrne acknowledged that, for the purposes of the hearing on 11 November 2014, circumstances were such that an agreed statement of facts was unable to be compiled.

[38] Having considered the submissions of both parties and, in particular, the arguments of Teekay as to whether AIMPE was genuinely trying to reach agreement in accordance with s.413(3) of the FW Act, I determined that it was in the interests of both parties to issue an Interim Order to enable the arguments to be fully and appropriately considered. This could not be done within two (2) days after the application was made. Finally, in making the order, I did not consider that it would be contrary to the public interest.

COMMISSIONER

 1   JJ Richards & Sons Pty Ltd v The Transport Workers’ Union (2010) FWAFB 9963 [58] to [59]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558239>