The Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd
[2011] FWA 585
•31 JANUARY 2011
[2011] FWA 585 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
The Maritime Union of Australia
v
Patrick Stevedores Holdings Pty Ltd
(B2011/10)
and
(B2011/2530)
COMMISSIONER CLOGHAN | PERTH, 31 JANUARY 2011 |
Proposed protected action ballot by employees of Patrick Stevedores Holdings Pty Ltd.
[1] 0n 24 and 25 January 2011, the Maritime Union of Australia (MUA) (“the Applicant”) made application to Fair Work Australia (FWA) for Protected Action Ballot Orders pursuant to s.437 of the Fair Work Act 2009 (“the Act”).
[2] The employees to be balloted are employed by Patrick Stevedores Holdings Pty Ltd (“the Employer”) at the ports of Darwin (B2011/10) and Fremantle (B2011/2530).
[3] The employees to be balloted have their conditions of employment regulated, in part, by the:
• Patrick Bulk and General Ports Union Collective Workplace Agreement 2008 Darwin (“Darwin Agreement”); and
• Patrick Bulk and General Ports Union Collective Workplace Agreement 2008 Fremantle (“Fremantle Agreement”).
[4] The nominal expiry date of both agreements is 22 October 2010.
[5] The applications were heard and determined on 25 January 2011. At the conclusion of the hearing, I made a determination that the MUA had satisfied the provisions of the Act and Orders should be issued with written reasons to follow. The Orders were issued on 27 January 2011. These are the reasons for issuing the Orders.
BACKGROUND
[6] The Employer’s Bulk and General Business Operations has 17 enterprise agreements around the nation with the MUA.
[7] Negotiations for the notionally expired enterprise agreements are taking place at two levels. Firstly, what is referred to as Part A negotiations which are negotiations at a national level and focus on those matters which apply around the nation. Secondly, what is referred to as Part C negotiations, and they are individual port negotiations, on matters relating to local conditions and practices.
[8] These applications are the sixth and seventh applications for Protected Action Ballot Orders from the MUA relating to these negotiations. The applications have concerned the ports of Albany, Fremantle, Melbourne, Geelong and Darwin. The ports of Fremantle and Melbourne have been the subject of two (2) separate applications.
[9] The first two applications by the MUA relating to the ports of Albany and Fremantle (B2010/301 and B2010/303) were opposed by the Employer on the grounds that they were premature and precipitous. In those applications, I heard and received considerable evidence from the MUA and the Employer, regarding national negotiations generally and negotiations at the Port of Fremantle (B2010/303) specifically.
[10] At the conclusion of the hearing relating to the Albany and Fremantle applications, I determined that the MUA had made out its case for Protected Action Ballot Orders to be issued. In my reasons for issuing the Orders, I referred to the evidence of Mr O’Leary, General Manager Industrial Relations who gave evidence for the Employer. Mr O’Leary’s evidence, in part, concerning negotiations at the Port of Fremantle was as follows:
“So would it be fair to say that you've had negotiations in relation to each port and you've come to a point where the parties are unable to take it any further until someone moves?---Yes, that's a fair comment.”1
“Would you think it's fair to say that in relation to Freemantle (sic), that Mr Tracey has been trying to reach an agreement with you?---Yes, absolutely.”2
“So he has been genuinely trying to reach an agreement??---I don't think there's any criticism from the company about your conduct of the negotiations in Freemantle (sic).”3
[11] In the hearing, Mr O’Leary also gave the following evidence in relation to the Part A or national negotiations:
Would you agree that in relation to the part A discussions that the MUA is genuinely trying to reach an agreement with Patricks for a set of principles to apply around the country?---I don't think there's any doubt of that. We've both been negotiating in good faith. 4
[12] Subsequent to this hearing on 15 November 2010, and notwithstanding that both parties are negotiating in good faith, replacement enterprise agreements have not been finalised and the MUA has made a further five applications for Protected Action Ballot Orders. It should be said that the Employer has not contested or opposed these applications.
[13] I now turn to the most current applications which are the subject of these Reasons, in relation to the ports of Darwin and Fremantle.
RELEVANT STATUTORY FRAMEWORK
• Section 437 - Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order ) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agentfor the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
• Section 441 - Application to be determined within 2 days after it is made
(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.
• Section 442 - Dealing with multiple applications together
FWA may deal with 2 or more applications for a protected action ballot order at the same time if:
(a) the applications relate to industrial action by:
(i) employees of the same employer; or employees at the same workplace; and
(b) FWA is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.
• Section 443 - When FWA must make a protected action ballot order
(1) FWA must make a protected action ballot orderin relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballotcloses;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA is satisfied, in relation to the proposed industrial actionthat is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
PORT OF DARWIN NEGOTIATIONS (B2011/10)
[14] Counsel for the MUA sought that evidence given in the previous applications, particularly concerning Part A or national negotiations, be taken and considered as part of these current applications. For reasons of the common relationship and applicability, I agreed to that request.
[15] Mr Thomas Mayor, Organiser MUA, gave sworn evidence for the Applicant in relation to the Port of Darwin. In preparation of his evidence, Mr Mayor created a summary schedule of meetings and correspondence between the MUA and the Employer 5.
[16] Communication between the parties commenced on 1 September 2010 and by the first meeting on 8 and 9 September 2010 both parties had received the other’s first log of claims. Prior to the next meeting on 2 December 2010, communication between the parties was minimal but the MUA had consulted with their membership and provided a response to certain provisions of the Employer’s claims at that meeting. The Employer committed to provide a new proposal prior to the next meeting; this proposal was emailed to the MUA on 22 December 2010.
[17] On 5 January 2011, the Employer provided a power point presentation to employees on wages and roster arrangements. An immediate meeting of employees rejected the proposal, preferring to remain with the current arrangements.
[18] A meeting of the parties on 6 January 2011 continued discussion from the previous day with the Employer rejecting the MUA position. The Employer committed to provide its final position on the agreement both locally and nationally within a week.
[19] Mr Mayor described discussions as “fair and we’ve considered each others’ positions” 6 and “there hasn’t been any huge arguments”7.
[20] Mr Mayor gave evidence that the MUA, despite not receiving a final offer from the Employer 8, was available to meet and have further discussion9. Finally, he gave evidence that the MUA was genuinely trying to reach agreement of a replacement enterprise agreement10.
[21] Mr Mayer is also involved in Part A or national negotiations.
PORT OF FREMANTLE NEGOTIATIONS (B2011/2530)
[22] Mr William Tracey, Assistant Secretary, WA Branch of the MUA, gave evidence for the Applicant in relation to the Port of Fremantle negotiations for a replacement enterprise agreement.
[23] Mr Tracey gave evidence on 15 November 2010 in relation to the first application by the MUA for a Protected Action Ballot Order (B2010/303) for the Port of Fremantle employees, and consequently, his evidence focussed on negotiations since that date.
[24] On 14 December 2010, a further meeting was held with the Employer specifically relating to the Port of Fremantle. Apart from summarising progress to date, Mr Tracey gave evidence that the parties went through what was described as “outstanding Part C claims” 11. The MUA advised that if the Employer “wanted to settle the enterprise agreement that these are the eight issues they will need to deal with and we laid out very specifically what it was we saw as settlement of the enterprise agreement from our end at a local Part C level...so we were very clear about what would settle the dispute”12.
[25] The meeting on 14 December 2010 concluded with the Employer advising that it would provide a response to the local MUA claims and its position as a final settlement of the proposed replacement agreement. The Employer advised the MUA that its response would be some time in the new year 13.
[26] Mr Tracey had been informed by his national officials, prior to the new year, that there would be an offer of settlement. Consequently, the Port of Fremantle Committee was drafting clauses for their local agreement in expectation of an “in principle” agreement. Notwithstanding this earlier information, Mr Tracey gave evidence that following Part A negotiations, or national negotiations, on 17, 18 and 19 January 2011, he was advised that although Mr O’Leary, for the Employer, indicated that he would be presenting an offer of settlement on 19 January 2011, it was not forthcoming 14.
[27] Mr Tracey gave evidence that the Employer’s position is that it is not prepared to put its offer while there is industrial action pending. In summary, Mr Tracey gave evidence that “negotiations have been going seven months and we’re still to receive an offer from Patricks” 15.
[28] The next meeting of the parties to continue negotiations for the Port of Fremantle is 14 February 2011.
RELEVANT MATTERS FOR CONSIDERATION
Negotiations
[29] Having considered the evidence in these proceedings of Mr Mayor and Mr Tracey, and related evidence given previously in applications (B2010/301, 303, 309, 311 and B2011/2), I find that the MUA is genuinely trying to reach agreement with the Employer in accordance with s.443(1)(b) of the Act in relation to replacement enterprise agreements for the ports of Darwin and Fremantle.
“Procedural” requirements of the Act
[30] I am satisfied that the “procedural” requirements of the Act in sections 437, 438 and 440 have been met.
Employer’s response to the applications
[31] The Employer advised the Tribunal and the MUA that it would not be attending the hearing and would not be opposing the applications.
CONCLUSION
[32] For the findings and reasons outlined above, I came to the conclusion that the procedural provisions of the Act had been met and that the MUA has been, and is genuinely trying to reach an agreement with the Employer for the employees to be balloted; on this basis, I issued the Orders on 27 January 2011.
[33] While the Tribunal should be very slow to comment on the negotiations it is not directly involved in, after seven applications for Protected Action Ballot Orders, two observations come to mind. Firstly, Newton’s third law of motion, “for every action there is an equal and opposite reaction”. It appears that on each occasion the Employer states that it will provide an offer to the MUA and doesn’t, because of continuing industrial action, the MUA seeks a further type of protected industrial action it can introduce into the workplace.
[34] Secondly, while it is sensible to have common participation at both national and local port by port negotiations, it appears, from the Employer’s situation, one person, Mr O’Leary is carrying that load. Consequently, for example, due to this workload and scheduling, the last meeting on Port of Fremantle negotiations was 14 December 2010 and the next is 14 February 2011. In such circumstances, it is understandable why the employees sense that nothing is happening and frustration with the lack of progress on negotiations.
COMMISSIONER
Appearances:
Mr L Edmonds, W.G. McNally Jones Staff, Lawyers, for the Applicant.
Hearing details:
2011:
Perth
25 January
1 PN 359 B2010/301 & 303 Transcript of proceedings held on 15 November 2010.
2 PN 389 B2010/301 & 303 Transcript of proceedings held on 15 November 2010.
3 PN 390 B2010/301 & 303 Transcript of proceedings held on 15 November 2010.
4 PN 385 B2010/301 & 303 Transcript of proceedings held on 15 November 2010.
5 Exhibit A1
6 PN 43
7 PN 43
8 PN 30
9 PN 31
10 PN 32
11 PN 53
12 PN 53
13 PN 53
14 PN 53
15 PN 53
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