Tidewater Marine Australia Pty Ltd v Maritime Union of Australia

[2014] FWC 3532

[2014] FWC 3532

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Tidewater Marine Australia Pty Ltd
v
Maritime Union of Australia
(C2014/4553)

COMMISSIONER CLOGHAN PERTH, 28 MAY 2014

Application for an order that industrial action by employees or employers stop etc.

[1] On 26 May 2014, following an application from Tidewater Marine Australia Pty Ltd (Tidewater or Employer), I issued an Interim Order to stop industrial action by certain employees (employees) of the Employer which was due to commence at 4:00 am on 27 May 2014 for a period of 48 hours (s.418 Application). While the Interim Order is in force, it prevents the employees from engaging or threatening to engage in industrial action.

[2] The Interim Order, issued pursuant to s.420(2) of the Fair Work Act 2009 (FW Act), also prevents the Maritime Union of Australia (MUA), which is a bargaining representative for the employees, from organising any industrial action by the employees.

[3] These are the reasons for issuing the Interim Order.

[4] I propose to set out briefly some of the background to this application.

RELEVANT BACKGROUND

[5] On 15 October 2013, the MUA made application to the Fair Work Commission (Commission) for a Protected Action Ballot Order (PABO) pursuant to s.437 of the FW Act (B2013/1329). The parties to the application were the Employer, MUA and the employees. The application was the subject of hearings on 18 October and 7 November 2013. At the hearing on 7 November 2013, the Employer did not consent to the PABO but did not oppose the application.

[6] At the hearing on 7 November 2013, Mr Tracey, Assistant Secretary Western Australian Branch of the MUA gave evidence on behalf of the MUA that it had been and was genuinely trying to reach agreement with the Employer for a replacement enterprise agreement. The Commission was satisfied that the requirements of the FW Act had been met and the PABO was made on 7 November 2013.

[7] The ballot results for the PABO were declared by the Australian Electoral Commission (AEC) on 2 January 2014. The employees endorsed the taking of protected industrial action for the purposes of advancing their claims in the negotiation of an enterprise agreement.

[8] The reason why the industrial action did not take place is not relevant to this application.

[9] On 5 March 2014, the MUA made application (B2014/44) for a PABO in the same terms as application B2013/1329. On this occasion, the Employer opposed the application on the grounds that the MUA “is not and has not been genuinely trying to reach agreement” for a proposed replacement enterprise agreement for the employees. The application was heard on 11 March 2014.

[10] At the hearing on 11 March 2014, the focus of the Employer’s objections concerned the actions of Mr Tracey. Mr Tracey attended the hearing and gave written and oral evidence that the MUA has been and is genuinely trying to reach agreement on the replacement agreement.

[11] On 17 March 2014, I issued my decision and reasons for decision concerning PABO application [2014] FWC 1733. While I concluded that the MUA had been and is genuinely trying to reach agreement with the Employer for a replacement agreement, I gave scrutiny to the conduct of Mr Tracey as alleged by Tidewater [paragraphs 35-72].

[12] The PABO was made on 17 March 2014. The AEC declared the results of the PABO on 7 May 2014. The employees endorsed the taking of protected industrial action in support of advancing their claims in a replacement enterprise agreement.

[13] There is no dispute between the parties that the procedural requirements of the proposed industrial action scheduled for 27 May 2014 was in accordance with the declaration of the ballot results of the employees on 7 May 2014, and the FW Act.

BROADER NEGOTIATIONS

[14] Negotiations with the Employer for a replacement enterprise agreement are not taking place in isolation but part of far wider negotiations in the offshore oil and gas industry. The wider negotiations involve over 20 other Vessel Operators. These negotiations commenced in December 2012/January 2013. Since August 2013, pursuant to s.572(2)(aa) of the FW Act, I have facilitated over 30 conferences between representatives of the MUA, Vessel Operators and the Australian Mines and Metals Association (AMMA) in what are described as “industry negotiations “. Mr Tracey has been present at the majority of these industry negotiations.

[15] In January/February 2014, Mr Tracey advised the Commission that the MUA was now disposed to individual Vessel Operator negotiations. At this point, I requested the parties to “report back” to the Commission on a periodic basis.

[16] Following conflicting reports of the progress/benefits of the individual Vessel Operator negotiations, I facilitated specific time/dates of certain MUA/Vessel Operator/AMMA negotiations.

[17] In addition, a small group of Chief Executive Officers (CEOs) have met with the National and Western Australian Secretaries of the MUA, together with Mr Tracey. The smaller group of CEOs includes those from Tidewater, Mermaid Marine Vessel Operations Pty Ltd (Mermaid Marine), Swire Pacific Ship Management (Australia) Pty Ltd (Swire), and Offshore Marine Services Pty Ltd (OMS).

[18] The Commission has been copied into some of the correspondence between the parties with regards to the individual Vessel Operator negotiations. I could not say that there has been unity of understanding of the respective positions and outcomes of the negotiations.

RECENT APPLICATIONS AND THE ACTIONS OF RELEVANT PARTIES

[19] On 16 May and 20 May 2014, AMMA, as the bargaining representative for Tidewater, Mermaid Marine, Swire and OMS lodged applications seeking bargaining orders (Bargaining Order Applications) pursuant to s.229 of the FW Act (B2014/786, 787, 788 and 795). The bargaining orders require the MUA to undertake certain actions. The applications were the subject of a conference on 21 May 2014 and a scheduled hearing on 27 May 2014. Procedural directions were issued on 22 May 2014 for the hearing on 27 May 2014.

[20] On 20 May 2014, the MUA gave notice to Tidewater that the employees would take employee claim action commencing at 4:00 am on 27 May 2014 for a period of 48 hours.

[21] On 22 May 2014, Tidewater made this s.418 Application.

[22] Separately, on 7 March 2014 a Full Bench of the Commission, including the Commission as presently constituted, quashed a PABO made on 3 January 2014 [2014] FWCFB 1314 by another member of the Commission concerning Mermaid Marine employees who are represented by the MUA in bargaining for a replacement agreement. The Full Bench remitted the originating application back to me for determination as to whether the MUA is genuinely trying to reach agreement with Mermaid Marine on the proposed enterprise agreement (Remitted Application).

[23] Scheduling of the various applications prior to the hearing on 26 May 2014 into this s.418 Application was as follows.

● s.418 application (C2014/4553) 26 May 2014

● Bargaining Order Applications

(B2014/786, 787, 788 and 795) 27 May 2014

● Remitted Application 28 May 2014

(B2013/1582)

CONSIDERATION OF s.418 APPLICATION

[24] Unbeknown to me, the parties had discussions between themselves regarding the scheduling of the Bargaining Order Applications and Remitted Application. Mr Power advised that the parties had reached agreement that these two applications be heard jointly on 9 and 10 June 2014 subject to my availability. Mr Edmonds advised me that the parties had agreed to the two applications being adjourned but there was “no concession that they should be heard together and there’s no concession on our part that the factual issues that arise in those applications are the same or substantially the same as the ones that arise in this application” 1. The only agreement, it appears is that the applications be adjourned.

[25] With respect to the Bargaining Order Applications and this s.418 Application, I am satisfied on the documents submitted that two particular matters, at least, are common. Firstly, the assertion that the MUA is not “genuinely trying to reach agreement”. Secondly, it is alleged that agreement on relevant replacement enterprise agreements are conditional on an outcome of an extraneous matter.

[26] In both the s.418 Application and the Bargaining Order Applications, what appears critical are the words and documents authored by Mr Cain and Mr Tracey.

[27] Mr Edmonds submitted that to adjourn this application was an abuse of process and “acts as a permanent injunction to the taking of the protected action...” 2. The Interim Order is not a permanent injunction. There is nothing to prevent the MUA making an application to extend the period of taking industrial action by a further 30 days commencing 7 June 2014.

[28] Secondly, Mr Edmonds submitted that, if interim relief was to be granted to Tidewater, it should occur only after Tidewater gave evidence. The Employer objected on the grounds of prejudice and fairness as the Employer did not know whether or not Mr Cain or Mr Tracey would give evidence and what that evidence would be in general.

[29] In response, the MUA submits that the nature of s.418 applications is that they are brought on urgently and there is no capacity for applicants to know whether or not respondents intend to lead any evidence. Furthermore, there is no obligation for respondents to lead evidence. All that is true. However, on Friday 23 May 2014 at 6:09 pm, the MUA advised the Commission that Mr Tracey “will need to give his evidence in the matters...by telephone”. At that time, both Tidewater and the Commission were advised that Mr Tracey was to give evidence. In such circumstances, I agree with Mr Power that the Employer was being asked to take all the prejudice in giving its evidence and the MUA is not.

[30] In Total Marine Services 3 the concept of “genuinely trying to reach agreement” was considered in the following manner:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.”

[31] The majority in JJ Richards v TWU [2010] FWAFB 9963 adopted and endorsed the conclusion of the Full Bench in John Holland 4 that “the expression ‘genuinely trying to reach agreement’ in s.443(1)(b) should be given its ordinary meaning”5.

[32] The majority in JJ Richards v TWU continue in their Decision:

“[58] The expression “genuinely trying” in s.443(1)(b) is, clearly enough, concerned with the genuineness of the “trying”, the efforts, to reach the stated goal, namely an enterprise agreement that meets the requirements of the FW Act. It is directed at the authenticity of the applicant’s efforts to reach that goal. The genuineness or authenticity of an applicant’s efforts to reach that goal will turn on its motivation - the intention, object or purpose.

...

[63] ...it is difficult to conceive of circumstances where it could properly be found they were not [genuinely trying to reach agreement], unless there is cross-examination or other evidence establishing that the applicant in truth has some other, extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act. For example, the evidence may demonstrate that the applicant is pursuing an agreement...or that the true motivation is to apply pressure in pursuit of political or environmental goals or simply to punish the employer for some perceived wrong doing.” (my emphasis)

[33] In the circumstances of this application, the authenticity of whether the MUA is genuinely trying to reach agreement is being questioned. Tidewater submitted that the proposed industrial action is for an extraneous purpose. In doing so, Tidewater have provided documents to the Commission and proposed witness statements. In addition, Tidewater required Mr Tracey to give his evidence in person.

[34] “Motivation”, “purpose”, “intention” are all aspects of behaviour associated with the object of achieving a particular outcome or goal. As the majority in JJ Richards v TWU observed, “it is difficult to conceive of circumstances where it could properly be found that they were not [genuinely trying to reach agreement] unless there is cross examination...”. In view of the importance of cross examination to properly establish whether the MUA has been, and is motivated, to genuinely try to reach agreement, cross examination is of significant importance. If the cross examination was to take place by telephone, it may be prejudicial to the Employer and inappropriate in the circumstances.

[35] With respect to witness evidence, I think it uncontroversial that the Commission is better able to observe and evaluate the credibility and significance of witness evidence, if the person is present. Secondly, as this application involves findings of fact, the importance of witness evidence is crucial and should be considered in the best circumstances.

[36] In conclusion, Mr Tracey indicated prior to the hearing into the s.418 application that he would give evidence by telephone. This was opposed by Tidewater. This situation then resulted in the MUA indicating that it may or may not bring any evidence. Further, a decision by the MUA to bring evidence would only occur after it had heard the Employer’s evidence. In such circumstances, I agree with Mr Power for Tidewater, that the Employer was being asked to bear all the prejudice in this set of circumstances.

[37] These circumstances developed on the day of the hearing, and I came to the view that the Commission would be unable to determine the application fairly and made the Interim Order.

[38] In making the Interim Order, I do not consider it contrary to the public interest pursuant to s.430(3) of the FW Act.

[39] I do not consider the Interim Order oppressive or prejudicial.

[40] Further, in my view, the Commission is entitled, but not obliged, to take into consideration procedurally the context of an application to wider enterprise bargaining if it exists. Not all negotiations for replacement enterprise bargaining agreements occur in isolation and in a straight line free of any Commission involvement. Where negotiations involve multiple applications over a period of time, it is not unreasonable to take into account the history or chronology of events where common matters arise for procedural purposes. An evaluation of this overall picture of negotiations is of assistance in exercising the discretion to provide interim relief and adjourn proceedings for a short period of time. In my view, this is reasonable, not prejudicial and commonsense.

[41] To date, I have not received any advice on how the parties wish to proceed on all the applications mentioned above. As a postscript, I have received an application from the MUA to extend the period to which the employees are able to take protected industrial action for a further 30 days. This application also needs to be added to the list of applications to be determined.

COMMISSIONER

Appearances:

A Power of Counsel for the Applicant

L Edmonds for the Respondent.

Hearing details:

2014:

Perth

26 May.

 1   Transcript PN45

 2   Transcript PN54

 3   [2009] FWAFB 368

 4   [2010] FWAFB 526

 5   Paragraph [67] of [2010] FWAFB 9963

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