The Maritime Union of Australia v P&O Automotive & General Stevedoring Pty Ltd T/A Poags

[2011] FWA 7478

[2011] FWA 7478

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 & General Stevedoring Pty Ltd T/A POAGS
(B2011/274)

COMMISSIONER CLOGHAN PERTH, 3 NOVEMBER 2011

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

[1] On 23 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 the Port of Fremantle 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 (Fremantle) 2008 (“the Agreement”).

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

[4] The application was heard and determined on 25 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 (PR516096). 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 updated his Part A negotiations evidence to the extent that a further meeting is to be held on 14 and 15 November 2011 in which the national secretary of the MUA and the Employer’s CEO would attend to seek resolution on this part of the replacement agreement.

[9] With regard to Part B negotiations, there had been two all-day comprehensive meetings 1. A third meeting had to be postponed.

[10] Prior to the first meeting, the MUA had provided its log of claims to the Employer. Consequently, at the first meeting, the MUA provided greater details with respect to its claims. The MUA’s log of claims was divided into four areas: those claims more appropriately dealt with in Part A negotiations; those claims rejected by the Employer; those claims which would be the subject of review by the Employer and further discussions, and those claims which required further information.

[11] At the second meeting, the parties discussed those claims that were capable of resolution and MUA responses to the Employer’s claims. A further meeting had been set down for 15 November 2011, however, it is uncertain whether this meeting would go ahead in view of the dates of the Part A negotiations.

[12] Mr Tracey concluded with evidence that the MUA had been, and is genuinely, trying to reach agreement with the Employer.

EMPLOYER’S RESPONSE TO APPLICATION

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

[14] 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

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

[16] 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 Fremantle operations; on this basis, I issued Order PR516096 on 25 October 2011.

COMMISSIONER

Appearances:

L Edmonds, Counsel for the Applicant.

No appearance by the Respondent.

Hearing details:

2011:
Perth,
25 October.

 1   PN 16

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