The Maritime Union of Australia v P & O Automotive and General Stevedoring Pty Ltd

[2011] FWA 7482

[2011] FWA 7482

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

The Maritime Union of Australia
v
P & O Automotive and General Stevedoring Pty Ltd
(B2011/267)

COMMISSIONER CLOGHAN PERTH, 3 NOVEMBER 2011

Proposed protected action ballot by employees of P&O Automotive and General Stevedoring Pty Ltd (POAGS).

[1] On 17 October 2011, the Maritime Union of Australia (MUA) (“the Applicant”) made application to Fair Work Australia (FWA) for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).

[2] The employees to be balloted are employed by P&O Automotive and General Stevedoring Pty Ltd (POAGS) (“the Employer”) at its stevedoring operations in Port Hedland and represented by the MUA in negotiations for a replacement agreement for the P&O Automotive and General Stevedoring Pty Ltd and Maritime Union of Australia Union Collective Agreement (Port Hedland) 2008 (“the Agreement”).

[3] The nominal expiry date of the Agreement is 30 June 2011.

[4] The application was heard and determined on 24 October 2011. At the conclusion of the hearing, I made a determination that the MUA had satisfied the provisions of the FW Act and an Order should issue (PR516017). These are the written reasons for issuing the Order.

[5] At the hearing, the MUA was represented by Mr Edmonds of Counsel and evidence was provided by Mr W Tracey, Assistant Secretary, Western Australian Branch of the MUA.

[6] The Employer advised that it would not be appearing at the hearing.

THE APPLICANT’S CASE

[7] Mr Edmonds, for the MUA, submitted that this application is a “sister” application to a previous application involving the same Employer in the Port of Bunbury. Consequently, the evidence of Mr Tracey concerning Part A negotiations (the proposed agreement is structured into two parts - A and B. Part A is negotiated at a national level and its terms are applied to 15 or 16 facilities across the nation) would be identical to the application involving the Port of Bunbury [2011] FWA 6645. For this reason, Mr Edmonds sought, and I agreed, that Mr Tracey’s evidence in [2011] FWA 6645 be incorporated and form part of evidence in this application.

[8] Mr Tracey gave evidence of three bargaining meetings between the parties. The meetings are attended by himself, Mr Heath, Pilbara Organiser, MUA and two local delegates. Local management attended and Ms Swift, National Workplace Relations Manager. The duration of the meetings have been between a half day and a day.

[9] Mr Tracey produced an email from Mr Adam Brough, Manager, POAGS, Port Hedland dated 20 October 2011 which sets out the seven (7) outstanding claims for the replacement agreement 1. Mr Brough concludes the email with the comment, “I believe that both parties are negotiating in good faith in respect to the Enterprise Bargaining claim, but acknowledge that despite our best efforts to date, have been unable to reach agreement”.

[10] Mr Tracey identified the North West Allowance as the key issue for resolution. In this respect, the Employer is engaged in informing their clients of the claim and the issue will be a further item for discussion with the MUA. Mr Tracey also gave evidence regarding the wages claim, casual loading and overtime.

[11] Subject to feedback on the North West Allowance, a further meeting is to be held in Port Hedland.

EMPLOYER’S RESPONSE TO APPLICATION

[12] Mr Pearse, for the Employer, advised my Associate by email that the Employer “does not wish to make any submissions regarding the” application.

[13] In not contesting the application, I adopted the approach that the Employer is not disputing the MUA’s evidence and is also not providing any additional information or evidence. Consequently, it is a matter for the Tribunal to accept or reject the sufficiency and appropriateness of the submissions and evidence of the MUA and make an order or not accordingly.

CONCLUSIONS

[14] I was satisfied that the requirements of the FW Act in sections 437, 438 and 440 have been met.

[15] Having considered the relevant provisions of the FW Act, oral evidence, submissions by the MUA and the Employer’s position on the application, I determined that the Applicant has been and is genuinely trying to reach agreement with P&O Automotive and General Stevedoring Pty Ltd at its Port Hedland operations; on this basis, I issued Order PR516017 on 24 October 2011.

COMMISSIONER

Appearances:

L Edmonds, Counsel for the Applicant.

No appearance by the Respondent.

Hearing details:

2011:
Perth,
24 October.

 1   Exhibit A1

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