The Maritime Union of Australia v Total Marine Services Pty Ltd
[2009] FWA 815
•26 OCTOBER 2009
[2009] FWA 815 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Total Marine Services Pty Ltd
(B2009/10799)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 26 OCTOBER 2009 |
Proposed protected action ballot by employees of Total Marine Services Pty Ltd.
[1] This decision concerns an application made by The Maritime Union of Australia (MUA) under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order. The relevant employees to be balloted are cooks, caterers, integrated ratings and seafarers employed by Total Marine Services Pty Ltd (TMS) in the offshore oil and gas industry. TMS opposes the application. This is the second s.437 application made by the MUA. An order that issued following an earlier application was quashed by a Full Bench on appeal. It is necessary to place this current application into context and to that end I need to address the background to it.
Background
[2] On 31 July 2009 the MUA made an application under s.437 of the Act for a protected action ballot order (the first application). The order was granted by Commissioner Thatcher on 1 September 2009 and his reasons for doing so were given in a decision published on the same day 1. In paragraphs 13 through to 35 the Commissioner summarised the evidence given by four witnesses, two each called on behalf of the MUA and TMS. It is clear this summary also constitutes findings of fact based on that evidence. Relevantly, for this decision, the witnesses included Mr William Tracey who was at that time State Organiser of the WA Branch of the MUA and Mr Michael Llewellyn, Industrial Relations and Business Development Manager for TMS.
[3] The Commissioner gave detailed reasons for his decision and, in the course of doing so, addressed the many challenges to the application that had been made by TMS. I here interpose to note that as I read the Full Bench appeal decision, which I will come to, the conclusions reached by the Commissioner about numerous challenges to the application made by TMS were not disturbed either because they were not challenged in the grounds of appeal or the Commissioner’s conclusions were not found to be in error. It was findings made by the Commissioner in that part of his decision titled "Exercise of discretion" which were ruled to be in error by the Full Bench. Accordingly, it is only necessary for me to make two further comments about the Commissioner's decision. The first is that the evidence about bargaining between the parties related to what had been said and done between November 2008 and early August 2009. The second is to what the Commissioner said in that part of his decision titled “Exercise of discretion”. He said he was satisfied both parties had engaged in genuine negotiations directed to concluding an agreement. He said the MUA had not acted so prematurely in making the application such as to demonstrate it was not genuinely trying to reach an agreement with TMS. He made some comments about one claim that was described as the “parity with tradesmen on construction sites” claim as well as the relevance of claims that had been made against industry competitors of TMS. Relevantly then the Commissioner said the following at paragraphs 134 and 135.
“[134] Nothing turns on the fact that the parties are currently focussing their negotiations only on enterprise specific claims and have agreed to park certain items for industry-level discussions prior to them being addressed in further enterprise-level negotiations.
[135] The MUA strategy of waiting to determine what general wages increases it will press until after the union has achieved a ‘landing’ on its construction claim is not a factor that goes against a finding that the MUA has not been genuinely trying to reach an agreement. From the evidence, I cannot draw an inference that the MUA intends to exclude TMS from future industry-level discussions, and Mr Tracey’s agreement to park matters for that purpose indicates a contrary intention.”
[4] The Commissioner found that the requirements of s.443(1)(b) of the Act were met and that in those circumstances he was obliged to grant the application. An order in terms sought by the MUA issued.
[5] On 21 August 2009 TMS lodged an application under s.229 of the Act for a bargaining order directed to the MUA. On 25 August 2009 the MUA lodged an application under s.229 of the Act seeking a bargaining order directed to TMS. This latter application was subsequently withdrawn by the MUA on 1 September 2009.
[6] On 14 September 2009 TMS filed a notice of appeal against the Commissioner's decision of 1 September 2009 in relation to the first application.
[7] On 16 September 2009 Commissioner Thatcher delivered his reasons for decision in relation to the TMS application for a bargaining order directed to the MUA 2. The reasons for decision are detailed and the whole of the reasons have been considered. The Commissioner indicated the matter in issue was whether the MUA was meeting the bargaining requirements as set out in s.228. The Commissioner adopted the findings he had made in his decision of 1 September 2009 in relation to the first application. He made additional findings in relation to conduct of the parties from early August 2009 to 1 September 2009. He addressed each of the provisions of s.228 and concluded that the MUA had done enough to meet each of the good faith bargaining requirements. The pre-requisites for granting the order sought by the TMS were not made out.
[8] The decision of the Full Bench in relation to the appeal against the order made in the first application was delivered on 9 October 2009 3. It is apparent from paragraphs 6 to 21 of the decision they adopted the factual findings made by the Commissioner. There is no suggestion that any of those findings had been made in error. It was the application of those facts to the Commissioner’s decision that the requirements of s.443(1)(b) had been met which was found to reflect error. I note that the Full Bench gave leave to the parties to file further material in relation to events subsequent to those covered by the evidence before Commissioner Thatcher. Each party had filed further affidavits and written submissions. It appears however that they decided to not consider the evidence of subsequent events and noted that the MUA was "free to make a further application ".4
[9] The following extract from the Full Bench decision outlines why it found error in the Commissioner’s conclusion that the MUA was genuinely trying to reach an agreement with TMS.
“[35] Commissioner Thatcher then considered all circumstances. He said that nothing turns on the fact that the parties are focussing on enterprise specific claims and had agreed to ‘park’ certain industry matters. He concluded that the MUA strategy of waiting to determine what general wage increases it will press until the union had achieved a ‘landing’ on its construction claim is not a factor that goes against a finding that the MUA has not been genuinely trying to reach an agreement.
[36] In this conclusion we believe that the Commissioner fell into error. It is clear on the evidence that the negotiations involved limited face to face meetings and limited articulation of many of the claims. Certain matters were being dealt with in concurrent industry negotiations. Many items were only set out in a list of headings and were not explained or discussed. The wage claim had not been specified. There is nothing to suggest that in taking the steps that it did, the MUA was other than genuine. Nevertheless, in our view it cannot be said in these circumstances that the MUA had genuinely tried to reach an agreement. The steps it had taken were preparatory to developing an agreement but in our view insufficient to satisfy the test its application needed to meet. The error made by the Commissioner involves both a mistake of fact and an error of principle.
[10] On 12 October 2009 the MUA made the application the subject of this decision.
The evidence before me and my findings
[11] The MUA tendered a witness statement of Mr Tracey dated 14 October 2009 which has some 27 attachments. The statement retraced the history of bargaining and identified chronologically what had occurred from November 2008 onwards. The attachments included the documents which were in evidence before Commissioner Thatcher in the first application, transcript of proceedings before him and documents relating to what the parties had said and done up to 14 October 2009.
[12] TMS tendered two statements of Mr Llewellyn. One was a copy of the statement filed in accordance with the leave granted by the Full Bench in the appeal proceedings. That addressed what the parties had been doing since late July 2009 up to 4 September 2009. The second statement principally addresses what had occurred in from around 14 September 2009 up to 16 October 2009.
[13] Both Mr Tracey and Mr Llewellyn gave evidence before me and each was cross examined.
[14] It is to be recalled that the evidence before the Commissioner in the first application concerned matters that had occurred up to early August 2009. The Full Bench found no error in the findings the Commissioner had made based on that evidence. I adopt and make the same findings as to the course negotiations have taken and the conduct of the parties. In this regard I refer to the evidence about what occurred as detailed in paragraphs 13 to 35 of the Commissioner’s decision of 1 September 2009 and in paragraphs 3 to 18 of the Full Bench decision.
[15] I need then to turn to the evidence about what has happened since early August 2009. A summary of the evidence about this as given by Mr Tracey is contained in the MUA written submissions. 5 As at the conclusion of all of the evidence I am of the opinion the summary accurately reflects what has been happening between MUA and TMS during this period. In this respect I note that TMS indicated it had not reproduced as annexures to Mr Llewellyn’s statement those documents which were annexed to Mr Tracey’s. It provided only those which were not. As a result it appears that all relevant documentary material (emails, letters, calculations, logs, minutes of meetings) is in evidence. An extract from the MUA summary is as follows;
“m. On 6 August 2009, the applicant sent an email to the respondent again seeking a meeting to discuss the proposed agreement15
n. On 7 August 2009, the respondent sent an email to the applicant seeking further information about the claims16
o. On 14 August 2009, the applicant sent an email to the respondent providing further information about the claims, including clarifying the quantum of the general wages claim, and again requesting a meeting to discuss the proposed agreement17.
p. On 17 August 2009 the respondent sent an email to the applicant attaching correspondence which sought full particulars of each claim made by the applicant18.
q. On 20 August 2009 the applicant sent an email to the respondent again seeking a meeting to discuss the proposed agreement and to clarify the issues raised in the letter of 17 August 200919.
r. On 21 August 2009 the respondent lodged an application for good faith bargaining orders under the Act alleging that the applicant's failure to provide details of its claim was contrary to it good faith bargaining obligations20.
s. On 24 August 2009 the applicant lodged an application for good faith bargaining orders seeking an order that the respondent meet to discuss the proposed agreement2l.
t. On 24 August 2009 the respondent sent an email to the applicant indicating that it would meet with the applicant if full particulars of the claims were provided in writing2 .
u. On 25 August 2009 the applicant sent an email to the respondent seeking a meeting to discuss the proposed agreement23.
v. The respondent replied by email on 25 August 2009 that it was willing to meet with the applicant24.
w. On 28 August 2009 the applicant sent an email to the respondent providing a response to the request for details made on 17 August 200925.
x. On 1 September 2009 the applicant withdrew its application for good faith bargaining orders26.
y. On 3 September 2009 FWA heard the respondent's application for good faith bargaining orders. At the hearing the applicant offered to have the tribunal conciliate if it had any concerns about the course of bargaining27.
z. On 4 September 2009 the parties met to discuss the proposed agreement28.
aa. On 11 September 2009 the applicant sent an email to the respondent attaching two comparison documents going to the wages claims made.
bb. On 14 September 2009 there was a further meeting to discuss the proposed agreement. At that meeting two further documents were provided concerning the wages claims.
cc. On 16 September 2009, FWA handed down its decision dismissing TMS’s application for good faith bargaining orders. The Commissioner found that the MUA had met the good faith bargaining requirements of the Act.
dd. A further meeting to discuss the proposed agreement was held on 15 October 2009.”
[16] The MUA submitted that the evidence addresses each concern the Full Bench had identified as to why the MUA, in its opinion, had not been genuinely trying to reach an agreement. The MUA categorised the concerns of the Full Bench in the following way:
“The Full Bench at [36] appears to identify the following matters that led to its conclusion that the applicant had not genuinely tried to reach an agreement:
a. The negotiations involved limited face to face meetings and limited articulation of many of the claims.
b. Certain matters were being dealt with in concurrent industry negotiations.
c. Many items were only set out in a list of headings and were not explained or discussed.
d. The wage claim had not been specified.” 6
[17] I adopt those categories. Although in doing so I should make clear I am not, in effect, hearing this application as if it was remitted back to a single member by the Full Bench to rehear. This application is to be considered against the whole of the evidence which incorporates the period August 2009 to 16 October 2009. Although the MUA maintains that the evidence before the Full Bench was such as to meet the s.443(1)(b) test it submits that the evidence about more recent events is such that it is unarguable the genuinely trying test is met and I should be amply satisfied that is so. TMS does not agree. It submits the evidence still does not satisfy the test. In summary it says all the evidence establishes is that the MUA have been taking preparatory steps to developing an agreement and identifying claims it will press. The claims had still not been articulated and the MUA had not yet responded to TMS claims. On more than one occasion TMS said the process had been no more that sifting, sorting and consolidation of claims. This, it submitted, was not negotiations directed at trying to reach an agreement.
[18] I accept the submission of the MUA in preference to that of TMS. I am satisfied the MUA have met the genuinely trying test. What I said so far as to the findings of fact I have made which satisfy me about the MUA genuinely trying to reach an agreement should constitute adequate reasons but as the parties took opposing positions as to the weight, relevance and adequacy of the evidence in the formation of the requisite level of satisfaction required in s.443(1)(b) I have decided to say a little more. In doing so I should say that the course this application (and the first) have taken do not provide a good example of achieving the object of the protected action ballot division which is to establish a fair, simple and democratic process to determine if employees wish to engage in particular industrial action 7. The explanatory memorandum is in similar terms, it says that “The Division contains facilitative provisions designed to provide a means for assessing the level of support for protected industrial action. The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees”.8
[19] I refer first to the number of meetings the parties have had and the extent to which claims have been articulated. I accept the MUA’s submission that weight needs to be given to the numerous requests it has made of TMS for face to face meetings. Several emails were in evidence before me establishing that these requests had been made over a period of time 9. The TMS response (albeit expressed in different terms on each occasion) was to say it did not wish to meet until certain written particulars were provided. The MUA position was that it would provide the explanation and detail asked for in a meeting. It is to be noted that TMS, in its email to MUA of 25 August, did suggest that a meeting could be held. The date of this email coincides with the filing by the MUA of a s.229 application seeking orders that TMS do just that, meet with them face-to-face.
[20] Meetings were eventually held between the parties on 4 and 14 September 2009 and 15 October 2009. I make some comments about those meetings later.
[21] The evidence shows that documents were exchanged between the parties prior to and subsequent to each meeting. As examples only I note that in an email of 14 August the MUA provided TMS with a document referred to as “TMS log - draft 1” incorporating discussions that had occurred prior to that date. It was made clear that this was the enterprise based claim made against TMS. The MUA listed what it understood to be the key aspects of the TMS claims. It identified certain claims which it had earlier made and which would not now be pursued. The email indicated that the wage claim was for 30% over three years.
[22] I note the response of TMS dated 17 August where it indicates that it had a number of concerns arising out of the MUA email and the attached TMS log. It said some entries were contradictory of earlier positions taken by the MUA and inconsistent with earlier industry negotiations. It maintained the same position it had previously that it required further and better details of a number of matters and said it was prepared to meet with the MUA provided it first gave the details of the MUA claims it had requested.
[23] The MUA asserts that by this time it had made clear what each of its substantive claims were and the way in which the log was drafted also should have been understood to comprise the MUA response to the TMS claims. On the other hand TMS maintained that it was confused about many of the claims being made by the MUA, it needed further and better particulars and was unable to have any meaningful discussions with the union without these.
[24] Evidence was given by both Mr Tracey and Mr Llewellyn about the meeting on 4 September 2009. Each noted that it was a lengthy meeting but the impressions of each man about its utility and what was achieved differed significantly. Mr Llewellyn emphasised how many claims were not addressed in the meeting. What the evidence does do, in my opinion, is reflect the MUA making clear its continuing desire to reach an agreement with TMS. That not all of the items in the log were discussed does not preclude this finding. As Mr Tracey said, some claims were agreed, some withdrawn and about others it was clear there would be no agreement and they were pressed by the MUA.
[25] On 11 September an updated log which was referred to as “TMS log – draft 2” was prepared by the MUA and sent to TMS. It recorded the outcome of the earlier meeting and reflected in colour coding claims that had been agreed, withdrawn and pressed. Updated calculations of a MUA claim described as the “Rates comparison rigger v IR” are in an attached document.
[26] A further meeting occurred on 14 September 2009. Prior to it the MUA had made clear that was hoping that it would be able to get through the remainder of the claims sheet and said it would provide workings on the parity claim for the rigger and integrated rating. Updated calculations were prepared and provided to TMS. Again the parties disagreed on the utility of this meeting and precisely what was discussed or achieved. Mr Tracey did not attend this meeting however he did refer to what he understood had occurred. Mr Llewellyn said that he was provided with updated calculations concerning the parity claim but the meeting did not achieve much more and did not get much further in relation to remaining items in the TMS log. Despite his evidence about how little he said was achieved in this meeting it does reflect a continuing desire by the MUA to try and reach an agreement with TMS.
[27] A further meeting was held on 15 October 2009. Mr Tracey said that although discussions returned to the claims in the log not reached at the earlier meeting attention was also given to the parity claim and claims contained in the later part of the log. He accepted that at the end of the meeting there were still issues to be discussed. He did not agree however that the TMS claims had not been discussed. He said the MUA log recorded what was being pressed by the union and also constituted its response to claims made by TMS which had earlier been set out in the form of a draft agreement.
[28] Mr Llewellyn said he provided his calculations concerning the parity claim. He had difficulty with the calculations that had been provided by the MUA and these matters were discussed. He understood the MUA was going to give further consideration to his calculations. He indicated that the discussions then picked up where they had left off at the meeting of 4 September 2009. Further items in the TMS log were discussed, withdrawn or confirmed that they were pressed. He emphasised that numerous items remain to be discussed.
[29] On 16 October 2009 the MUA sent TMS an email which attached an updated version of the log now called “TMS log – draft 3”. I was told that a further meeting was proposed for 21 October a date shortly after the hearing of this matter.
[30] I next turn to the consideration of some matters being dealt with in industry negotiations. The evidence before me establishes that whatever might have been sought by the MUA in the context of industry negotiations it was clear by 14 August 2009 that the MUA was seeking to deal with TMS on an enterprise basis and the claims against TMS were set out in a TMS specific log.
[31] I next refer to the comment that many items were set out in headings and not explained or discussed. The evidence relating to this consideration is addressed above in the context of the meetings and articulation of claims consideration.
[32] The final consideration is that the wage claim had not been specified. It is clear that at least by 14 August 2009 it had been; it was for 30% payable at the rate of 10% each year for three years. Other wage related matters had also been discussed. They included whether a performance pay component might be appropriate for employees under the proposed agreement. It would appear that a performance pay component forms part of the compensation for Officers engaged by TMS. There had also been developments in relation to the MUA parity claim between a rigger and an integrated rating. The union had taken into account the view of TMS that if the claim as earlier made was pressed they would not be able to bid for construction work. The MUA had revisited the claim and it was to now be calculated by reference to daily rates and expressed as a project allowance bonus. By the meeting of 14 September the amount and MUA’s revised calculations were provided to TMS.
[33] I also consider that the decision of Commissioner Thatcher of 16 September in relation to the TMS application for bargaining orders is relevant. It forms part of the context in which I am considering whether I am satisfied as to the requirements of s.443(1)(b). I note that both the Commissioner in the first application and the Full Bench on appeal were careful to not equate the consideration of whether a party was bargaining in good faith with whether a party was genuinely trying to reach an agreement. Each however accepted that considerations about whether good faith bargaining requirements may have been met may be a relevant consideration. The Full Bench noted that there was nothing to suggest that the MUA was other than genuine in the approach it had taken to negotiations. This had been fortified by the findings of the Commissioner in his 16 September decision. I too agree with the observation that there is nothing to suggest the MUA has been other than genuine in the approach it has taken to negotiations. That has continued for the whole of the period under consideration in this decision. However, additionally, the evidence persuades me that the union has also been, and is, genuinely trying to reach an agreement with TMS.
[34] Finally I turn to the TMS challenge to the form of the questions to be put to employees. I note that the questions are in the same form as those before Commissioner Thatcher and the Full Bench on appeal. The TMS challenge to the adequacy of the questions before the Full Bench was not successful. It again challenges the questions contained in the order sought before me. It submits that although the Full Bench dealt with one part of its challenge to the questions namely its criticism of the use of the word "unlimited" in each question, the Full Bench had not dealt with the other part of its argument which was that the combinations and permutations the questions allowed meant they would not have the effect of specifying the particular action as was required by s.437(1).
[35] I do not read the Full Bench reasons as confined only to the use of the word “unlimited” in the questions. Paragraph 39 also refers to the particular forms of action in the sense, as I understand it, to refer to the different forms that action may take as described in each question. An employee is asked if they agree or not to engage in each such type or category of action. The questions made clear what work would not be done and what work would be exempted. The questions are sufficient for the purpose of s.437 and s.433 of the Act.
Conclusion
[36] The MUA application complies with each of the requirements of ss.437, 440 and 443 of the Act. In the context of considerations required by those sections I am satisfied that the MUA has been, and is, genuinely trying to reach an agreement with TMS the employer of
employees to be balloted. A protected action ballot order will issue at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
T. Slevin of Counsel for The Maritime Union of Australia.
H.J. Dixon SC with T. Caspersz of Counsel for Total Marine Services Pty Ltd.
Hearing details:
2009.
Sydney:
October 13, 19.
1 [2009] FWA 187
2 [2009] FWA 290
3 [2009] FWAFB 368
4 Above cit.at para 37
5 Exhibit A2
6 Exhibit A2 at para 20.
7 S.436
8 Paragraph 1755
9 Emails referred to in Exhibit A2 paragraph 21a
Printed by authority of the Commonwealth Government Printer
<Price code E, PR990195>
0
2
0