The Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd

[2010] FWA 9157

[2010] FWA 9157

FAIR WORK AUSTRALIA

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
(B2010/309)

And

The Maritime Union of Australia
v
Patrick Stevedores Holdings Pty Ltd
(B2010/311)

COMMISSIONER CLOGHAN PERTH, 29 NOVEMBER 2010

Proposed protected action ballot by employees of Patrick Stevedores Holdings Pty Ltd.

[1] On 19 and 21 November 2010, the Maritime Union of Australia (MUA) (“the Applicant”) made application to Fair Work Australia 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 Port of Melbourne (B2010/309) and the Port of Geelong (B2010/311).

[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”)



• Patrick Certified Agreement (General Stevedoring) 2004 (“Geelong Agreement”)

[4] The nominal expiry date of the Melbourne Agreement is 22 October 2010.

[5] The nominal expiry date of the Geelong Agreement is 10 October 2007.

[6] The Employer advised my Associate, by email on 22 November 2010, that it “would not be contesting” the applications.

[7] Mr Ian Bray, Assistant National Secretary, MUA gave evidence for the Applicant In view of the email advice in paragraph [4] above, the Employer did not attend the hearing into the applications on 24 November 2010. At the conclusion of the hearing, having considered submissions and oral evidence concerning the applications I made a determination that the Applicant had made out its case for the Orders to be issued and I was satisfied that the provisions of the Act had been met. I indicated to the Applicant that my reasons for making such a decision would follow; these are the reasons for my determination.

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 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.

• 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

(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.

• Section 443 - When FWA must make a protected action ballot order

(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.

BACKGROUND

[8] On 24 November 2010, in Decision (PR504179) I set out my reasons for Protected Action Ballot Orders made in relation to Fremantle and Albany ports in Western Australia. The employees to be balloted are employed by the same Employer in these applications and negotiations are with the same applicant as in these proceedings.

[9] In Decision (PR504179), I set out broadly the background to the negotiations for the replacement agreements (which include Melbourne and Geelong ports) and, in detail, the structure, process, personnel, general content, timelines and progress of negotiations at a national level, as well as, Fremantle and Albany ports.

[10] In view of the commonality of national negotiations with the present applications, Counsel for the Applicant requested that I consider the evidence presented regarding the national negotiations relating to the Fremantle and Albany ports as part of the evidence in these proceedings; I agreed with that request.

[11] I now turn to the evidence relating to Melbourne and Geelong ports.

MELBOURNE AND GEELONG PORTS NEGOTIATIONS

[12] Mr Bray gave evidence relating to negotiations for replacement agreements at Melbourne and Geelong ports. The evidence simply put is that there has been a series of meetings between the parties at which each party has discussed the other party’s claims in the replacement agreements. The parties have provided information, explanations, presumably clarifications, and responses to the claims being sought. Claims have been modified, removed or rejected.

[13] The Applicant in the Port of Melbourne negotiation has put an offer of settlement which has been rejected by the Employer.

[14] In relation to negotiations concerning the Port of Geelong replacement agreement, Mr Bray has attended some, but not all, meetings; the lead negotiator for the Applicant has informed Mr Bray of progress where he has not been in attendance.

[15] The nature of negotiations at the Port of Geelong has been similar, except to say that in negotiations, the Employer submitted an offer of settlement early which has been rejected by the employees. Mr Bray described the current state of negotiation as “very close and “we don’t believe we’re too far away from possible reaching agreement at the local level” 1.

[16] Mr Bray gave evidence that in relation to both replacement agreements, the Applicant is genuinely trying to reach agreement with the Employer.

[17] I note that Mr O’Leary, similar to Fremantle and Albany port discussions has represented the Employer in connection with Melbourne and Geelong port negotiations.

RELEVANT MATTERS FOR CONSIDERATION

Negotiations

[18] Having considered the evidence regarding the national negotiations and the general nature of port by port negotiations in applications B2010/301 and B2010/303 and the particular evidence relating to the ports of Melbourne and Geelong, 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

[19] I am satisfied that the “procedural” requirements of the Act in sections 437, 438 and 440 have been met.

Employer’s Response to Applications

[20] The Employer’s response to the applications is to not contest them. In my view, there is a distinction between not contesting and consenting to an application. By not contesting the applications, the Employer is essentially saying to the Applicant, present your evidence and it is a matter for the Tribunal to accept or reject that evidence as to its sufficiency and appropriateness, and make orders accordingly.

[21] In not contesting the applications, I am adopting the view that the Employer intends not to dispute the Applicant’s evidence and/or provide any additional facts, if they exist.

CONCLUSION

[22] For the finding 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 Orders.

[23] Finally, I again emphasise that in issuing the Orders, the tribunal is not making a judgement on the respective positions of the parties and I expect the negotiations, as already scheduled, continue as planned.

COMMISSIONER

Appearances:

Mr L Edmonds of W.G. McNally Jones Staff, Lawyers for the Maritime Union of Australia

Hearing details:

2010:

Perth

24 November

 1   PN 35

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