The Maritime Union of Australia v Stradbroke Ferries Pty Ltd Summary

[2014] FWC 5946

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.229 - Applications for bargaining orders

The Maritime Union of Australia
v
Stradbroke Ferries Pty Ltd

(B2014/1045)

Stradbroke Ferries Pty Ltd
v
The Maritime Union of Australia, The Australian Institute of Marine and Power Engineers, The Australian Maritime Officers' Union, The Australian Workers' Union
(B2014/1290)

COMMISSIONER SIMPSON

BRISBANE, 28 AUGUST 2014

[1] Two separate applications have been made by the Maritime Union of Australia and Stradbroke Ferries Pty Ltd respectively for orders to be made by the Fair Work Commission (“the Commission”) regarding a failure to meet the good faith bargaining requirements under the Fair Work Act 2009 (“the Act”).

[2] Both applicants agreed to adjourn the two applications which were listed for hearing on Tuesday afternoon 26 August 2014 at 4.30pm, and further discussions took place in a conference conducted by the Commission yesterday at the premises of Stradbroke Ferries Pty Ltd at 3 Emmett Drive, Cleveland.

[3] I advised the bargaining representatives that participated in the conference yesterday that I intended to issue a statement concerning the treatment of discussions held in conference, and requested that the statement be provided to employees who are intended to be covered by the proposed Agreement.

[4] Section 592 of the Act reads as follows;

“592 Conferences

(1) For the purpose of performing a function or exercising a power of the FWC (other than a function or power under Part 2-6), the FWC may direct a person to attend a conference at a specified time and place.

Note: Part 2-6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2-6.

(2) An FWC Member (other than an Expert Panel Member), or a delegate of the FWC, is responsible for conducting the conference.

(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.

Note: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).

(4) At a conference, the FWC may:

(a) mediate or conciliate; or

(b) make a recommendation or express an opinion.

(5) Subsection (4) does not limit what the FWC may do at a conference.”

[5] Where a conference is conducted before the Commission, in the absence of a direction that it be conducted in public, or in the absence of an agreement reached between the parties to jointly communicate an outcome that is sanctioned by the person responsible for conducting the conference, the appropriate course is for participants in the conference to refrain from divulging outside the conference the contents of private discussions held in conference.

[6] The public policy rationale for this legislative approach as I understand it is that it is intended to promote more effective mediation or conciliation between parties in dispute because it allows those discussions to occur in private. Parties are generally free to report back to others agreed outcomes that result from private discussions (unless otherwise agreed or directed) but parties are not at liberty to report on the contents of the private discussions themselves.

COMMISSIONER

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CaseChat Overview and Summary

The Maritime Union of Australia and Stradbroke Ferries Pty Ltd appeared before the Fair Work Commission to seek orders regarding their failure to meet the good faith bargaining requirements under the Fair Work Act 2009. The union and the company had both lodged separate applications with the Commission, which were subsequently adjourned and further discussed in a conference held at the premises of Stradbroke Ferries Pty Ltd. The Commissioner noted that the conference was conducted in private and intended to issue a statement concerning the treatment of discussions held in conference, requesting that it be provided to employees who are intended to be covered by the proposed Agreement.

The central legal issue before the Commission was whether the private discussions held in the conference were to be divulged outside of the conference. The Commissioner referenced section 592 of the Act, which provides that conferences conducted before the Commission are to be held in private unless otherwise directed or agreed upon by the parties. The Commissioner explained that the public policy rationale for this approach was to promote more effective mediation or conciliation between parties in dispute, as it allows those discussions to occur in private. The Commissioner further noted that parties are generally free to report back to others agreed outcomes that result from private discussions, but are not at liberty to report on the contents of the private discussions themselves.

In light of the above, the Commissioner advised the bargaining representatives that participated in the conference that they were to refrain from divulging outside the conference the contents of private discussions held in conference. The Commissioner intended to issue a statement concerning the treatment of discussions held in conference, requesting that it be provided to employees who are intended to be covered by the proposed Agreement. The Commissioner's reasoning was based on the understanding of section 592 of the Act and the public policy rationale for holding conferences in private.

The final orders of the Commission were not explicitly stated in the text, but the Commissioner's intention to issue a statement concerning the treatment of discussions held in conference, and to request that it be provided to employees who are intended to be covered by the proposed Agreement, suggests that the Commissioner aimed to ensure that the private discussions were not divulged outside of the conference and to maintain the confidentiality of the discussions.

The Maritime Union of Australia v Stradbroke Ferries Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established