The Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd
[2010] FWA 8960
•24 NOVEMBER 2010
[2010] FWA 8960 |
|
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
(B2010/301)
and
The Maritime Union of Australiav
Patrick Stevedores Holdings Pty Ltd
(B2010/303)
COMMISSIONER CLOGHAN | PERTH, 24 NOVEMBER 2010 |
Proposed protected action ballot by employees of Patrick Stevedores Holdings Pty Ltd.
[1] On 11 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 Albany Port (B2010/301) and Fremantle Port (B2010/303).
[3] The employees to be balloted have their conditions of employed regulated, in part, by the:
- Patrick Bulk and General Ports Union Collective Workplace Agreement 2008 Albany (Albany Agreement); and
- Patrick Bulk and General Ports Union Collective Workplace Agreement 2008 Fremantle (Fremantle Agreement).
[4] The nominal expiry date of the Albany Agreement is 1 July 2010.
[5] The nominal expiry date of the Fremantle Agreement is 22 October 2010.
[6] The Employer opposed the applications and objected to the issuing of orders on the grounds that the applications were premature and precipitous.
[7] Mr W. Tracey, Assistant Secretary, MUA (WA Branch) and Mr A Evans, Deputy Secretary MUA (WA Branch), gave evidence for the Applicant. Mr M O’Leary, General Manager Industrial Relations, Patrick Auto, Bulk and General Handling gave evidence for the Employer.
[8] The matter was heard on 15 November 2010. At the conclusion of the hearing, having considered submissions, oral and documentary evidence, I made a determination that the Applicant had made out its case for the orders to be issued. I indicated to the parties that my reasons for making that determination 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.
[9] By agreement of the parties, both applications were heard at the same time consistent with the provisions of s.442 of the Act.
[10] It was not contested by the Employer that the provisions of sections 437, 438 and 440 have been met by the Applicant. The Employer’s submissions and evidence went to the issue of whether the Applicant “has been, and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted” in accordance with s.443(1)(b) of the Act.
[11] For the purposes of this Decision, I shall refer to both agreements as “the Agreements”. When referring to them separately, they shall be referred to as the “Albany Agreement” or the “Fremantle Agreement”.
BACKGROUND
[12] The current agreements for both Albany and Fremantle Ports are divided into three areas: Parts A, B and C. Part A is the administrative component of the Agreements; Part B contains operational issues agreed upon on a national basis, and Part C, contains agreed outcomes on a port by port basis.
[13] In summary, Parts A and B of the current agreements reflect agreement on a national basis. Part C reflects agreement at the local port level. Collectively, the various parts make up the individual port agreement.
[14] Patrick’s Bulk and General Business operations has 17 agreements.
[15] The parties advised the Tribunal that negotiations for the replacement port agreements expiring in 2010 are at two levels: Part A relates to matters to be agreed at a national level, and Part C, on a port by port basis. Part B of the current agreements is intended to be rolled into Part A of the replacement agreements.
[16] In summary, Part A, when agreed, will be common to all 17 replacement agreements. Part C, when agreed, will be “married” up with Part A, to form the replacement agreement for each particular port.
NEGOTIATIONS FOR THE REPLACEMENT AGREEMENTS
Part A National Negotiations
[17] Mr Evans gave evidence that, in relation to national negotiations for Part A of the replacement agreements, workplace delegates from each port, state and national officials met on 20 July 2010 to review and confirm its log of claims. On 21 July 2010, those claims were presented and explained to the Employer. On the same or the following day, the Employer put its claims to the MUA 1.
[18] Following this meeting, the MUA varied its negotiating structure to one workplace delegate and one official from each state, and representatives from its national office. Mr Evans is the nominated official for Western Australia.
[19] The next round of Part A meetings occurred on 15, 16 and 17 September 2010. On 15 September 2010, the MUA reviewed its position from the first round of national and port by port negotiations. It is important to note that issues in port by port discussions are not static, and could, and were, elevated to Part A national negotiations where appropriate.
[20] Mr Evans gave evidence that the discussions which occurred on 16 September 2010 related to a revision of the MUA’s claims, the Employer’s previous responses, and the Union’s reply to the Employer’s claims 2.
[21] For Mr Evans, “at the end of those meetings, it was clear, through the course of discussion, that everyone understood where the claims were, what they were about and what the views in response to those were” 3. For the Employer, Mr O’Leary described the negotiations in less firm terms, when he gave evidence that, “I think 15, 16 and 17 September were a group of meetings were (sic) we really got, if you like, the first inkling of what both parties were seeking in the part A negotiations”4.
[22] The Australian Concise Oxford Dictionary defines “inkling” as a “hint”, “slight knowledge” or “suspicion”. Mr O’Leary, by my accounting, has approximately 38 years in the industry; 30 years as an official of the MUA -- the last 12 years as Deputy National Secretary. For this reason, I consider that by the end of the September meetings, he had a reasonable, if not good, understanding of the MUA claims. In reaching this conclusion, I need to strongly emphasise, for reasons set out later in this Decision, that I do not consider Mr O’Leary attempting to mislead the Tribunal, but just a poor choice of word.
[23] At this point, it is appropriate to mention that while the MUA’s claims had been formulated, agreed and reviewed at meetings in July and September 2010, Mr O’Leary gave evidence that the Employer, likewise, prepared itself prior to negotiations, by having a set of “guidelines” for delivery in these agreements 5.
[24] Further national discussions on Part A took place on 1, 2 and 3 November 2010. On 1 November the MUA, through its delegates and officials, determined, what Mr Evans described, as its “final offer”. On 2 November 2010, the MUA and the Employer reconvened its discussions on Part A, which included further refinement of what issues fell within national and local port negotiations 6.
[25] After considering the Employer’s views, on 3 November 2010, the MUA put a final offer of settlement and set out why it thought the proposal was reasonable 7. The offer of settlement was formally put, in writing, by the MUA to the Employer on 5 November 2010.
[26] The MUA has not received a response to its offer of settlement.
[27] Further national meetings on Part A are scheduled for 6 and 7 December 2010.
Fremantle Port Agreement Negotiations
[28] Mr Tracey has been leading and coordinating negotiations for the Fremantle Port.
[29] Port by port negotiations are structured to take place between national negotiations. For example, following the July national negotiations, Mr O’Leary, for the Employer, travelled around the nation having local discussions at each port. The intention is to have at least one round of local port negotiations prior to the next round of national negotiations. Consequently, local negotiations are scheduled consistent with Mr O’Leary’s travel timetable; in the case of Fremantle Port, the negotiations occurred, in the first instance, on 24, 25 and 26 August 2010.
[30] On 24 August 2010, Mr Tracey gave evidence that the Employer provided a context to negotiations. The 25 August 2010 discussions focussed on the MUA’s claims which had previously been provided to the Employer. The parties separated out those matters which had, or should, be part of national negotiations. As to be expected, negotiations are detailed and, in this case, the MUA categorised issues into: those which were amenable to agreement in principle immediately, those with cost implications or flexibility issues, and those with risks associated; risk related to issues which could impact on Employer/client contractual terms. The following day, 26 August 2010 was a continuation of discussions in more detail.
[31] At some time during the negotiations, the Employer made a suggestion that it was prepared to “roll over” the existing agreement with a wage increase outcome consistent with national negotiations, and an additional 10 permanent positions, increasing to 20, if the MUA foregoes its claims relating to the roster.
[32] The Employer’s offer of “rolling over” the existing agreement with the above conditions was subsequently put to, and rejected, by the workforce.
[33] A further meeting of the parties occurred on 5 and 6 October 2010. During these negotiations, it was agreed to separate out certain matters for discussion with the local State Manager, review previous issues, and examine options dealing with “42 black days” or Employer designated fixed days off for employees.
[34] Following these two days of negotiations, discussions with the State Manager resolved all matters referred to him and representatives, with one exception. Further, the workforce received a briefing on national negotiations on, or about, 18 October 2010.
[35] In summary, in Fremantle Port, the Employer has an offer of settlement in relation to Part A negotiations to which the MUA is awaiting a response. With respect to Part C of the proposed agreement, the parties are still in dispute regarding the roster or “42 black days”; the Employer is wishing to retain its right to designate the days and the MUA is seeking 21 of those 42 days, to be determined by employees. In the words of Mr Tracey, if there is agreement at the national level to Part A of the proposed agreement, and local management agree to the hybrid solution of the “42 black days”, “it’s finished, it’s done” 8.
Albany Port Agreement Negotiations
[36] Mr Evans gave evidence that he is the Western Australian MUA representative on national negotiations, and has been involved in negotiations for replacement agreements at Albany, Geraldton, Dampier and Hedland ports, and to a lesser extent, Fremantle.
[37] The proposed replacement agreements for Dampier and Hedland ports have been agreed between the parties and are now the subject of a vote on 1 and 2 December 2010 respectively. With respect to Geraldton Port, there is one outstanding issue for which no further meetings have been scheduled 9. As outlined above, all local agreements are still subject to agreement at a national level on Part A issues.
[38] Negotiations on Part C matters at Albany Port commenced on 25 June 2010 with Mr Evans, Mr O’Leary, Mr Dack, Albany Port Manager, and two MUA workplace delegates. At that meeting, the MUA tabled a log of claims 10.
[39] At the meeting, Mr Evans described the Employer’s general response to the log of claims as, “most of those are unlikely to be achieved” 11, and instead offered an ex gratia payment to the two permanent employees, to change their employment status from full-time to part-time employees.
[40] Subsequently, Mr Evans raised with Mr O’Leary, at national negotiations, on or about 21 July 2010, the need to have further meetings on a replacement agreement for the Albany Port. At those discussions, Mr O’Leary indicated that it was possible that the Employer’s operations at Albany may close.
[41] In August 2010, Mr Evans emailed, and had further discussions, with Mr O’Leary, seeking a meeting to either progress enterprise negotiations, or deal with the closure of the Employer’s operations.
[42] Following what appears to be some hesitancy by the Employer, Mr O’Leary advised that he had a new position in relation to Albany Port 12. The new position involved permanent employees reducing their hours with a corresponding reduction in wages. Following a meeting of employees, the offer was rejected.
[43] Following Mr O’Leary being informed of the decision of the workforce, further negotiations occurred on 4 October 2010 in Albany. The Employer was seeking to negotiate a reduction of hours of permanent employees by way of a Deed of Settlement, rather than a replacement enterprise agreement. For the MUA, it was prepared to consider the Employer’s proposal but not in the terms it sought; however, the outcome (if any) was to be reflected in a new enterprise agreement. The meeting concluded on the basis that if agreement could not be reached in the form of a Deed of Settlement, the employees concerned would be made redundant by the Employer. These redundancies occurred on 24 October 2010. It should be noted that the proposed Deed of Settlement would sit alongside the “rolling over” of the existing agreement.
[44] A further meeting of the parties is scheduled for the week commencing 13 December 2010.
[45] In summary, at Albany Port, the MUA has presented and explained its log of claims. The MUA, to accommodate the Employer business imperatives, is prepared to agree to a 12 month term for the replacement enterprise agreement and accommodate the Employer’s desire to make the permanent employees part-time, but not on the terms sought by the Employer (this matter may now be “academic” as the employees have been made redundant). The Employer is seeking to “roll over” the existing agreement and not enter into a new agreement, with a deed of variation, to provide for reduced hours and salaries for permanent employees (see comment in preceding sentence) and different pay back arrangements for part-time employees. For the Employer, this manner of proceeding is necessary to achieve cost savings, in view of declining business and revenue for the Employer at Albany Port.
RELEVANT MATTERS FOR CONSIDERATION
Circumstances Surrounding Negotiations
[46] Having considered the evidence surrounding negotiations, I find that:
- the representatives of the MUA and the Employer have the ability and authority to negotiate (individually or as part of a broader group), at both national level and Fremantle and Albany Ports 13;
- the nature and context of negotiations at Fremantle and Albany Ports is clear particularly in relation to: the Employer’s business imperatives; contractual obligations; cost savings and employee priorities;
- the quantum of matters in dispute, where applicable, are understood and acknowledged even though concessions are regarded by the Employer as more fiction, than real;
- the objectives or log of claims in relation to Fremantle and Albany Ports are well understood by the Employer 14;
- the MUA has moderated its claims both nationally, and in relation to Fremantle Port 15 -- the Employer expects the same to occur with Albany Port16;
- with the exception of Mr O’Leary having to conduct negotiations for the Employer in every port, there have been no issues regarding time, availability of parties, communications and resources to conduct the negotiations;
- the parties have generally shared information to enable a better understanding of each other’s position; and
- neither party made accusations that the other was being anything but transparent in negotiations regarding Fremantle Port. With respect to Albany Port, the Employer asserts that the application was not genuine, but in response to the two permanent employees being made redundant. While the MUA was not happy with the Employer’s decision to make the employees redundant 17, the assertion was never put to Mr Evans, and as Counsel for the MUA pointed out, the accusation of the MUA as having an ulterior motive in making the application should be rejected; I agree.
[47] In summary, in relation to whether the MUA has been, and is genuinely trying to reach agreement with the Employer, I turn to the evidence of Mr O’Leary who honestly and directly stated:
“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.” 18
“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.” 19
“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).” 20
“In relation to Albany, do you accept that Mr Evans has been genuinely trying to reach an agreement with you?---Again, I don't have any difficulty with Adrian in terms of his negotiating genuineness.” 21
Timing of Negotiations
[48] While not pressed strongly, Counsel for the Employer inferred that I should consider the applications premature or precipitous, and consequently, not genuine, because negotiations have only been in existence nationally, and at both ports, for only four months. In doing so, Counsel asked the Tribunal to compare and contrast the current negotiations with the last negotiations which took 10 months to complete at a national level, and 24 months at Melbourne Port.
[49] It is trite but necessary to state that enterprise negotiations contain elements which are not easily comparable from one round to the next. The economic circumstances and business imperatives change, personnel and expectations change to name a few elements which vary from negotiations to negotiations.
[50] For the immediate reasons above, I am not prepared to conclude that negotiations are proceeding too fast (and consequently, the applications premature and precipitous) on the basis of what occurred during the last round of negotiations. Finally, without further evidence, I could not conclude that negotiations were occurring deliberately slowly if they were longer than the previous round of negotiations.
[51] Finally, it was noticeable that the Employer compared Fremantle and Albany Ports with Melbourne Port; the differences are obvious and not in need of explanation.
Intentions of the MUA
[52] The Employer submits that “prior to the redundancies, there was no indication or intimation that we would see industrial action in this round of bargaining” 22 and accordingly, the applications are for an ulterior motive. I have already discussed this issue at paragraph [46] but would also add that should the MUA have announced or made known its intention to seek to take protected industrial action earlier in negotiations, the Employer, with perhaps good reason, could assert that the Union was not genuinely trying to reach agreement but prematurely misusing the provisions of the Act. The fact that the MUA did not state its intentions regarding protected industrial action prior to making these applications is not, as a matter of logic, sufficient to assert that they have been made because of the two redundancies at the Albany Port.
DISCUSSION AND CONCLUSION
[53] The structure and process of the negotiations described above are unremarkable, and fundamentally similar, to many other enterprise agreement negotiations. The conflict which has occurred is, again, unremarkable, as the parties have conflicting interests. The parties have been unable to resolve their differences and the MUA is seeking the means, available to it, under the Act, to potentially escalate the conflict by taking protected industrial action.
[54] Parliament has regulated the taking of protected industrial action. The Tribunal must determine, as far as practicable within two (2) days and make available to the MUA a protected action ballot order, if the “procedural” requirements of the Act have been met in sections 437, 438 and 440, and the MUA is, and has been, genuinely trying to reach agreement with the Employer.
[55] For the findings and reasons outlined above, I came to the conclusion that the MUA is, and has been, genuinely trying to reach agreement; on this basis, I issued the Orders on 15 November 2010.
[56] I should emphasise that in issuing the Orders on 15 November 2010, the Tribunal is satisfied that the MUA can access an option available to it under the Act and is not making judgement on the respective position of the parties. Finally, the accessing of this option under the Act by the MUA, is not, and cannot be, a reason to break off negotiations with the Employer, or for the Employer, to discontinue discussions with the MUA; I expect the scheduled negotiations to continue as planned.
COMMISSIONER
Appearances:
Mr L Edmonds, of W.G. McNally Jones Staff, Lawyers for the Maritime Union of Australia
Mr D Pearson, of Freehills, for Patrick Stevedores Pty Ltd
Hearing details:
2010
Perth
15 November
1 PN 197
2 PN 198
3 PN 198
4 PN 317
5 PN 313
6 PN 206
7 PN 209
8 PN 118
9 PN 214
10 Exhibit A4 & PN 215
11 PN 228
12 PN 234
13 PN 313 and PN 341
14 PN 335 & PN 358
15 PN 364 & PN 362
16 PN 378
17 PN 280 & PN 281
18 PN 359
19 PN 389
20 PN 390
21 PN 391
22 PN 413
Printed by authority of the Commonwealth Government Printer
<Price code C, PR504179>
0
0
0