The Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd
[2011] FWA 333
•20 JANUARY 2011
[2011] FWA 333 |
|
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
(B2011/2)
COMMISSIONER CLOGHAN | PERTH, 20 JANUARY 2011 |
Proposed protected action ballot by employees of Patrick Stevedores Holdings Pty Ltd.
[1] On 13 January 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 Act”).
[2] The employees to be balloted are employed by Patrick Stevedores Holdings Pty Ltd (“the Employer”) at the Port of Melbourne.
[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, Melbourne (“Melbourne Agreement”).
[4] The nominal expiry date of the Melbourne Agreement is 22 October 2010.
INTRODUCTION
[5] The Employer’s Bulk and General Business Operations has 17 enterprise agreements around the nation.
[6] Negotiations for notionally expired enterprise agreements are taking place at two levels. Firstly, what is referred to as Part A, which is negotiated at a national level, and secondly, Part C, which is negotiated on a port by port basis. Individual port negotiations focus on matters reflecting local conditions, practices and circumstances whereas national negotiations focus on those matters which are to apply across the nation. When both negotiations are completed, a composite document will form the enterprise agreement for that particular port.
[7] On 15 November 2010, in applications B2010/301 and B2010/303, I heard and received considerable evidence from the MUA and the Employer regarding national and local negotiations in relation to the ports of Albany and Fremantle. At the conclusion of the hearing, I determined that the MUA had made out its case for Protected Action Ballot Orders to be issued for employees employed at Albany and Fremantle ports.
[8] On 24 November 2010, in applications B2010/309 and B2010/311, I heard and received evidence regarding local negotiations at the ports of Melbourne and Geelong. On that occasion, it was requested, and I agreed, that the evidence given relating to national negotiations in the Albany and Fremantle port applications, be incorporated as part of those proceedings.
[9] At the conclusion of the hearing into applications B2010/309 and B2010/311, I determined that the MUA had successfully made its case out for Protected Action Ballot Orders to be issued for employees at Melbourne and Geelong ports.
[10] In my Decision on 29 November 2010 concerning Melbourne and Geelong ports, I noted the Employer did not contest the orders sought by the MUA.
[11] On 23 December 2010, I was advised by the Australian Electoral Commission that, pursuant to my Order in relation to the Port of Melbourne, the ballot of eligible voters had been counted. Ninety-two percent (92%) of eligible voters had voted, and by a significant majority, endorsed the taking of protected industrial action in the manner set out on the ballot paper.
[12] I now turn to this application lodged by the MUA on 13 January 2011 in relation to the Port of Melbourne.
[13] RELEVANT STATUTORY FRAMEWORK
- Section 437 - Application for a protected action ballot order
- Section 441 - Application to be determined within 2 days after it is made
- Section 442 - Dealing with multiple applications together
- Section 443 - When FWA must make 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 agent for 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.
(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.
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
(ii) 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.
(1) FWA must make a protected action ballot order in 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 ballot closes;
(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 action that 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 MELBOURNE NEGOTIATIONS
[14] The application was described by Mr Edmonds, Counsel for the MUA, as a “continuation” 1 of the applications relating to negotiations with the Employer across the nation, but specifically, in this case, relating to the Port of Melbourne.
[15] At the conclusion of the hearing, having considered the submissions from the MUA and oral evidence concerning the application, I made a determination that the MUA had satisfied the provisions of the Act and an Order should be issued with written reasons to follow; these are the reasons for my determination.
[16] In view of the common relationship between negotiations occurring as a result of this application and previous applications B2010/301, 303, 309 and 311, Counsel for the MUA sought that the evidence given in those proceedings stand and be considered as evidence in these proceedings. For reasons of common relationship and applicability I agreed with that request.
[17] Essentially, the application is seeking for two further forms of protected industrial action to be available to employees during the negotiations for a replacement enterprise agreement at the Port of Melbourne. To take those forms of industrial action, it must be first authorised by a ballot of the relevant employees.
[18] As can be seen from the statutory framework in paragraph [13], FWA must be satisfied that, in this case, the MUA has been genuinely trying to reach agreement with the Employer before making an order enabling a protected action ballot.
[19] To enable the Tribunal to make an assessment on whether the MUA is genuinely trying to reach an agreement, Mr Cassar gave evidence on behalf of the Applicant.
[20] Mr Cassar gave evidence that he is employed by the Employer at the Port of Melbourne. Further, he is a member of the MUA, an elected delegate of the MUA and part of the Port of Melbourne negotiating group considering a replacement enterprise agreement for that port.
[21] Mr Cassar provided evidence relating to ongoing negotiations which have occurred in December 2010 and January 2011. He gave evidence that, following the meetings on 10, 11 and 12 January 2011, “it feels like we’re getting closer, we’ve had some productive talks. The company suggested that they were going to give us an offer of settlement...” 2. “We went into our position over the last three days, but we just need that offer of settlement pretty much to go to the next step”3.
[22] Apart from the respective position of the parties, Mr Cassar gave evidence of the MUA and the Employer seeking to reach common ground on certain claims, definitional discussions, the dropping of claims, “wordsmithying”, the desire on the MUA’s part for the matter not to drag on and further planned meetings.
RELEVENT MATTERS FOR CONSIDERATION
Negotiations
[23] Having considered the evidence regarding the national negotiations and the general nature of port by port negotiations in applications B2010/301, 303, 309 and 311 and the particular evidence relating to the Port of Melbourne in this application, I find that the MUA is genuinely trying to reach agreement with the Employer in accordance with s.443(1)(b) of the Act.
“Procedural” requirements of the Act
[24] I am satisfied that the “procedural” requirements of the Act in sections 437, 438 and 440 have been met.
Employer’s Response to Applications
[25] The Employer advised the Tribunal and the MUA, that it does not oppose the application for a ballot to be conducted of the employees.
CONCLUSION
[26] For the findings and reasons outlined above, I came to the conclusion that the procedural provisions of the Act have been met and that the MUA has been, and is, genuinely trying to reach an agreement with the Employer; on this basis, I issued the Order on 14 January 2011.
COMMISSIONER
Appearances:
Mr L Edmonds, W.G. McNally Jones Lawyers for the Applicant.
Hearing details:
2011:
Perth
14 January
1 PN 8
2 PN 27
3 PN 29
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