Fair Work Australia|2009-09-01

The Maritime Union of Australia v Total Marine Services Pty Ltd - re Protected action ballot order [2009] FWA 187 (1 September 2009)

Note: An appeal pursuant to s.604 (C2009/10480) was lodged against this decision - refer to Full Bench decision dated 9 October 2009 [[2009] FWAFB 368] for result of appeal.

s.437 - Application for a protected action ballot order

[1] The Maritime Union of Australia (MUA) has applied to Fair Work Australia (FWA) for an order requiring a protected action ballot to be conducted to determine whether cooks, caterers, integrated ratings and seafarers, employed by Total Marine Services Pty Ltd (TMS) in the offshore oil and gas operations for which TMS supplies labour (the relevant employees), wish to engage in particular protected industrial action for a proposed enterprise agreement. The application purports to be made under s.437 of the Fair Work Act 2009 (the Act).

[2] FWA�s role in determining applications for a protected action ballot order 1 is contained in Subdivision B (Protected action ballot orders) of Division 8 (Protected action ballots) of Part 3-3 (Industrial action) of Chapter 3 (Rights and responsibilities of employees, employers, organisations etc) of the Act. Section 443 therein prescribes the function of FWA as including the following:

�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:

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.�

[3] Further s.441 (Application to be determined within 2 days after it is made) states:

�(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.�

[4] Section 440 requires that within 24 hours of making an application, the applicant must give a copy to the employer and the Australian Electoral Commission or person who the applicant wishes to be the ballot agent.

[5] Thus, FWA is required to make a protected action ballot order if the application has complied with paragraph 443(1)(a) and it is satisfied that that the conditions in paragraph 443(1)(b) have been met and FWA must not make such an order unless those matters have been complied with or, as the case may be, met or if FWA is satisfied that the applicant has given the application to the relevant employer and the Australian Electoral Commission or other ballot agent.

[6] Section 437, which is referred to in paragraph 443(1)(a), relevantly includes:

�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) 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.

(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.

[7] Section 435, which is the Guide to Division 8, includes:

�This Division establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement.

Subdivision B provides for FWA to make a protected action ballot order, on application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement, requiring a protected action ballot to be conducted.

[8] The following object of Division 8 is then prescribed:

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.�

[9] Consideration may be given to extrinsic material not forming part of an Act that is capable of assisting in ascertaining the meaning of a provision, to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in that Act and the purpose or object underlying that Act. 2 The Explanatory Memorandum to the Fair Work Bill 2008,3 when dealing with what was to become s.436 of the Act, states:

1755. Clause 436 states that the object of the Division is to provide bargaining representatives with access to a fair, simple and democratic secret ballot process in order to determine whether employees wish to take certain types of protected industrial action. 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.�

[10] TMS submits that an onus is on the MUA to demonstrate that its application has met the requirements of s.443 and this has not been discharged. The TMS opposition might be summarised as:

(a) a valid application has not been made under s.437. More particularly,

(i) The application does not comply with s.437(3)(b) because it does not clearly specify the nature of the proposed industrial action;

(ii) By seeking that the proposed enterprise agreement contain a matter that is not a matter permitted for an agreement, the MUA�s application does not seek to ballot employees about whether they wish to engage in protected industrial action and so is not an application for the purposes of s.437(1). The purported non-permitted matter is a MUA demand that TMS employ persons from the MUA Database; and

(b) FWA can not be satisfied that the MUA has been, and is, genuinely trying to reach an agreement with TMS on a proposed enterprise agreement. More specifically:

(i) The MUA had not been �really trying to get as far as it could for an agreement before making its application�;

(ii) The MUA has been engaged in conduct antithetical to good faith bargaining. TMS stated:

�� s.443(1), its still facilitative in the sense I�ve described, but its not carte blanche, and its now to be construed also in the context where (FWA)(sic) has got a role in monitoring good faith bargaining and therefore it brings back those good faith bargaining considerations into the consideration of whether the union has discharged the test of genuinely trying.�; 4

(iii) The MUA had been and is seeking that the proposed enterprise agreement be linked to its demands for non-permitted matters, namely that TMS pay a training levy to the Maritime Employees Training Limited (MET) and that TMS inter into a Memorandum of Understanding that limits the employment of integrated ratings from New Zealand. Also, if the MUA Database claim is not a condition of the proposed enterprise agreement (refer to subparagraph (a)(ii) above) then it is a non-permitted matter linked to the proposed enterprise agreement;

(iv) The construction claim would result in a 300% increase in costs and is fanciful;

(v) The MUA did not advise TMS that the union was a bargaining representative of the relevant employees until 3 days before the application was lodged;

(vi) There is insufficient evidence that the MUA had been representing the views of the relevant employees.

(a) The application meets the requirements of s.443(1). The process is, in effect, a simple, administrative exercise as �its positive in the scheme of the Act�. In oral submissions it elaborated on the process as follows:

�Coming to the Tribunal and saying, we�d like to go and now ballot the employees and the Tribunal simply needs to be satisfied of two things in section 443. �(sic) Are you trying to get a proposed enterprise agreement under this Act, it�s not some other agreement that you want to get? Yes, we are that�s clear. And, are you genuinely trying to reach agreement? Yes, we are. That�s also clear. That is the test. This is not a good faith bargaining case �..

Now my friend seems to be suggesting that your role in this proceeding is to be the referee to be down on the field adjudicating on every play of the game. That�s not what these provisions are about.

These particular provisions are about simply ensuring that the application that is made for the ballot order and the balloting of the employees, occurs within the framework of the Act. No judgment should be made about the nature of negotiations. There should be no suggestions that before you get a ballot order there should be x number of meetings that seems to arise from what my friend says. There should be y number of documents exchanged between the parties which seems to be what my friend wants to say. It�s not a case of (FWA)(sic) getting down in amongst the parties and making rulings as to how long meetings should go another thing that is suggested in the submission�; 5

(b) In relation to s.228 (Bargaining representatives must meet the good faith bargaining requirements) and the �genuinely trying to reach an agreement� provisions of s.412(3) (Pattern bargaining), when dealing with an application under s.437 FWA should not embark upon an exercise of inquiring whether the requirements of other provisions of the Act have been met. To do so would be to cause delay and frustrate the taking of protected industrial action by employees. In particular, FWA should resist any attempt to establish a checklist of matters for which FWA must consider before being satisfied that a bargaining representative has been and is genuinely trying to reach an agreement with the employer. Such an approach would be to monitor rather than facilitate bargaining, unnecessarily complicate the process and be a brake on bargaining;

(c) If TMS has some complaint that the MUA has not been bargaining in good faith then its remedy is to seek a bargaining order under s.230 of the Act;

(d) If TMS is concerned that the MUA is about to embark on industrial action that is not protected industrial action, the disagreement should take place at the time TMS receives notice of the action;

(e) The MUA is not claiming the 3 matters, which TMS submits are not permitted matters, as items of the proposed enterprise agreement, as evidenced by their absence from the notice that initiated the bargaining period;

(f) The MUA does not accept that the construction claim would result in a 300% increase in costs and there is insufficient evidence to support such a claim;

(g) The Act does not place any requirement on the bargaining representative to inform employees of the claims being made during bargaining.

Mr Will Tracey, a State Organiser of the WA Branch of the MUA;

Mr Michael Doleman, Assistant National Secretary, MUA;

Ms Dayle Carnachan, Employee Relations Consultant, Australian Mines and Metals Association (AMMA);

Mr Michael Llewellyn, Industrial Relations and Business Development Manager, TMS.

[13] The nominal expiry date of the existing pre-reform s.170LJ certified agreement between TMS and the MUA, namely the Total Marine Services Pty Ltd � Integrated Ratings, Cooks, Caterers and Seafarers Agreement, 2006-2009 (the existing agreement) is 21 March 2009.

[14] At a meeting on 18 November 2008 Mr Doleman presented the MUA�s industry log of claims for integrated ratings, cooks, caterers and seafarers 6 to representatives of AMMA and companies in the offshore oil and gas industry, including TMS. The log of claims contained 193 items.

[15] There was a further meeting between the MUA (including Mr Paddy Crumlin, National Secretary) and representatives of AMMA and vessel operators on 5 December 2008.

[16] On 19 January 2009 Mr Doleman wrote to AMMA and the participants in the offshore industry forum indicating that the MUA intended writing to a number of the employers seeking to engage them in negotiations on an enterprise basis. The MUA also indicated a willingness to engage with employers who determine that an industry approach was more appropriate. 7

[17] There were industry discussions about the industry log of claims on 20 and 21 January 2009. Whilst Mr Llewellyn was not able to represent TMS at those meetings, Mr Doleman and Ms Carnachan were amongst those who attended.

[18] On 20 February 2009, AMMA, on behalf of industry employers, forwarded the MUA the employers consolidated response to its industry log of claims, which stated there was agreement to 43 of the items. 8

[19] On 3 April 2009, AMMA wrote to Mr Doleman advising that following further meetings of the employers, AMMA had been authorised to expand on the 20 February 2009 offer. The additional offer related to items including the quantum and timing of salary increases and an increase in the construction allowance for employees working on specialist vessels on construction projects. 9

[20] Mr Doleman clarified the difference between industry �negotiations� and �discussions� (from the MUA�s perspective) in the following exchange during cross-examination:

�� So if for example it turned out that there were any matters that were necessary to be dealt with on an industry basis which would be ultimately for inclusion in a particular company's enterprise agreement was it your intention that that company would not be a part of negotiations on those industry matters? ---Well, let's just make clear what industry negotiations are. We are dealing with enterprise agreements. There are matters that have effect across all companies. Crew cycles might be an example. We would be prepared to sit down with the whole of the industry to talk about those but then go back to the enterprise to negotiate the agreement within that enterprise but everybody would be welcome to participate in an industry forum, not a negotiation, an industry forum to discuss relevant matters that affect all of the employers.

Including people who were served with bargaining notices?---If and when that time comes, yes.

So your letter was not intended to make the representation that even those people who have been served with bargaining notices would not be welcome at these industry negotiations?---Because they're not industry negotiations. We are prepared to have industry dialogue and discussion, as was the case on the 10th of last month, but not negotiations.� 10

[21] On 17 April 2009, Mr Chris Cain, WA Branch Secretary of the MUA wrote to TMS notifying it of the MUA�s decision to seek negotiations for a replacement enterprise agreement with TMS on an individual basis. It sought that TMS indicate a suitable nominal expiry date, the claims that TMS would make, and suitable times for meetings to discuss claims. 11

[22] According to Mr Doleman, since that time the WA Branch of the MUA (MUAWA) has had responsibility for negotiations with TMS on the enterprise agreement. 12

[23] On 29 April 2009 Mr Doleman responded to AMMA�s consolidated industry response dated 20 February 2009 and its expanded offer dated 3 April 2009, rejecting those offers. The MUA indicated a readiness to meet with employers in a collective way. However it intended to negotiate separately with employers who have been served with bargaining notices. 13

[24] On 12 May 2009 the MUA served on TMS a notice to initiate a bargaining period under s.423 of the Workplace Relations Act 1996 signed by Mr Cain of the MUAWA. 14 The notice contained a list of subject headings (without details) of some 19 matters that the union sought be dealt with in the proposed collective agreement.15

[25] TMS did not respond directly to Mr Cain�s letter of 17 April 2009 and the notice to initiate a bargaining period which he had signed. Rather, on 18 May 2009 TMS wrote to the National Secretary, MUA on the basis that it understood that the National Secretary is responsible for directing the drafting of claims in respect of a collective agreement made by the MUA. In its correspondence 16 TMS:

(a) confirmed it was agreeable to commence negotiations for a replacement collective agreement;

(b) agreed to the MUA proposal for a 3 year nominal term;

(c) attached a without prejudice Draft Collective Agreement 17 containing terms which it considered reflected the current industry standards (which had been prepared with the assistance of AMMA). TMS proposed to use the document as a base from which negotiations could be commenced;

(d) stated: �To assist in the negotiation process could you please provide further details of your claims in respect of the proposed collective agreement we will then be in a better position to provide your Union with our requests concerning the replacement Agreement�;

(e) proposed a meeting the following week and stated:

�For meaningful discussions to occur at our first meeting, it is important that TMS is provided with your particularised claims in advance of the meeting and request these be provided as soon as possible.�

[26] Representatives of the MUAWA and TMS met on 29 May 2009 for the purpose of commencing negotiations for a replacement collective agreement. The meeting discussed the overview for the process for negotiations and concluded on the basis that prior to the next meeting the MUAWA would provide TMS with its claims and TMS would send back a version of its Draft Collective Agreement which showed tracked changes. According to Mr Tracey:

�At that meeting on 29 May we identified a process, the first two steps of which would be taking the industry log � and then separating out the enterprise issues as identified by AMMA and in our view because of the work that had already been done with both Mermaids and Go with the TMS representative in the room and Geoff Bull, that was a process that would not take very long at all and in our view it was the 19 points that essentially were going to be threshold issues between us. That's why we sought to engage on those issues.� 18 [Note: Geoff Bull is a representative of AMMA. The 19 points are referred to in paragraph 28 below.]

[27] On 2 June 2009 TMS forwarded the MUAWA a tracked-changes version of its Draft Collective Agreement.

[28] On 4 June 2009, Mr Tracey emailed TMS (with copies to AMMA), 19 stating: �As per our meeting last Friday, May 29th, below are the TMS company specific EBA claims/issues from the MUA�. The email then listed in bullet point form 19 items. Also it listed in similar form 8 other items �that we would like to go through at our meeting next Friday.� The email�s conclusion included: �We anticipate that part of next week�s meeting will also involve the MUA speaking to its claims and clarifying any issues that TMS may have in relation to the claims.� The 19 items were not the only claims being pursued by the MUA with TMS, the others being those that had been identified at the industry level.

[29] The next meeting to discuss the proposed agreement (with representatives of the MUAWA and TMS and a representative from AMMA) occurred on 19 June 2009. Following discussion, the union withdrew certain claims and �parked� others for further consideration, possibly on an industry basis**.** There was no agreement reached at the meeting.

[30] A further meeting to discuss the proposed agreement between representatives of the MUAWA and TMS was held on 23 June 2009. At that meeting the union withdrew two further claims, parked two others, and pressed amongst other claims, its construction claims. At the end of the meeting the MUA proposed that the construction claim be dealt with by conciliation with the AIRC.

[31] No further meetings of the parties to the proposed agreement have occurred to discuss the proposed agreement. Rather the following series of emails 20 have been exchanged between Mr Tracey and Mr Llewellyn:

(a) On 10 July 2009 Mr Tracey advised Mr Llewellyn in general terms of the MUA claims in respect of an increase in the overseas allowance and its construction claims, including parity with a tradesperson - meaning that the employees would receive the same overall remuneration received by a tradesperson on a construction job over a period such as 8 weeks.

(b) On 14 July 2009 Mr Llewellyn provided Mr Tracey with a table that included TMS comments/counter claims (seeking clarification of several matters) in respect of the overseas allowance and the construction claims. TMS required the further details in order to be able to cost the claims prior to the next meeting.

(c) On 20 July 2009 Mr Llewellyn sought additional clarification of the claim for parity with a tradesperson on construction jobs.

(d) On 22 July 2009 Mr Tracey returned Mr Llewellyn�s table with an additional column containing the union�s response and responded to the requests for additional information.

[32] A meeting in Sydney on 10 July 2009 between MUA and employers in the offshore oil and gas industry was attended by Mr Llewellyn and Ms Carnachan, although not Mr Tracey. Mr Doleman told the meeting there would be no industry negotiations about industry issues and that all issues would be negotiated at an enterprise basis. Mr Doleman described the MUA position as preferring to negotiate enterprise agreements with individual employers through to conclusion. However if an employer wants to discuss issues with the MUA on an industry basis, the employer and the union are to get as far as they can in their negotiations on enterprise specific matters. Subsequently, at the conclusion of the enterprise negotiations, there would be a discussion with all of the industry dealing with matters that have broad application to all employers before referring those matters back for further negotiations at the enterprise level. 21

[33] Following the commencement of the Act as from 1 July 2009, on 28 July 2009 Mr Tracey emailed the TMS to confirm that the MUA is a bargaining representative for MUA members employed by TMS who are seeking to conclude negotiations and enter into an enterprise agreement. He sought a list of available dates to continue negotiations. 22

[34] On 31 July 2009 the MUA lodged its application for a protected action ballot order.

[35] On 3 August 2009 TMS wrote to Mr Tracy stating that although the parties had met, negotiations in respect of the proposed enterprise agreement had not occurred. Whilst TMS had provided its detailed position, the MUA had only identified in broad terms the matters it sought to address. To enable negotiations to commence, TMS required information and detail about the matters the MUA seeks in the proposed enterprise agreement to enable it to undertake a costing exercise on each item. Further:

�Unless and until we receive such details, we are unable to provide any comment or response in relation to those matters. We are also yet to receive your views on our Draft Agreement, or alternatively a draft agreement prepared by the MUA containing its claims.� 23

[36] Apart from the TMS letter of 3 August 2009, the parties did not lead evidence on events subsequent to the MUA�s lodgement of the application for the protected action ballot order. It was submitted that TMS is still seeking the requested information from the MUA.

[37] At the time of finalising this decision, I am aware that TMS and the MUA have each lodged applications under s.229 (Applications for bargaining orders) of the Act, although for present purposes I have not given weight to those developments.

HAS AN APPLICATION BEEN MADE UNDER s.437 (paragraph 443(1)(a))

[38] The wording of paragraph 443(1)(a) requires FWA to establish that �the application has been made under s.437.� In that respect it is noted that the wording of paragraph 443(1)(a) is different to:

(a) s.418 (FWA must order that industrial action by employees or employers stop etc) which requires only that �it appears to FWA� that industrial action is, or would not be, protected industrial action;

(b) paragraph 443(1)(b) which requires that �FWA is satisfied� of the conditions therein.

[39] The wording �made under s.437� reflects a statutory intention that an element of the �fair, simple and democratic process� referred to in the object of the Division (s.436) is that compliance with s.437 is one of the prerequisites to FWA making a protected action ballot order. Further, a failure to comply with paragraph 443(1)(a) requires FWA not to make such an order (s.443(2)).

[40] Turning to s.437, it seems plain that subclauses (3), (4) and (5) (under the heading �Matters to be specified in application�) and subclause (6) (under the heading �Documents to accompany application�) refer to matters encompassed by paragraph 443(1)(a). It has not been contested that the MUA has complied with those requirements.

[41] However, in my view, subsection (1) (under the heading �Who may apply for a protected action ballot order� also refers to matters encompassed by paragraph 443(1)(a).

[42] One of the requirements of s.437(1) is that the applicant is a bargaining representative for a proposed enterprise agreement (s.176). It has not been contested that the MUA is a bargaining representative of an employee who will be covered by a proposed enterprise agreement to replace the exiting agreement.

[43] However s.437(1) also provides that such an eligible bargaining representative:

�� 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.� (emphasis added)

[44] The question arises as to the extent to which FWA, in deciding whether an application has been made under s.437, should establish whether the particular industrial action which will be the subject of the ballot would be protected industrial action.

[45] In the matter before the tribunal, particular industrial action is protected industrial action for a proposed enterprise agreement if it is employee claim action for the agreement (refer paragraph 408(a)). Section s.409 (Employee claim action) states:

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(d) meets the additional requirements set out in this section.

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

(4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.�

[46] TMS submits that in considering s.437 applications, FWA needs to satisfy itself that the particular industrial action that would be the subject of the ballot is protected industrial action. 24 On the other hand it seems that the MUA submission is that I should only examine identified issues which could have the effect that the proposed industrial action would not be protected industrial action.25

[47] In my opinion for the following reasons, the ordinary meaning of the wording of s.443 and s.437(1) supports a statutory intention that in considering whether an application has been made under s.437, FWA should establish from the circumstances of the particular case that the application does not involve circumstances which are inconsistent with the proposed industrial action becoming protected industrial action:

(a) Paragraph 443(1)(a) is a new provision which has work to perform. There was no equivalent mandatory provision under s.461 (Application not to be granted unless certain conditions met) of the Workplace Relations Act 1996;

(b) s.437(1) does not state that the applications for an order requiring a protected action ballot to be conducted is to determine whether employees wish to engage in particular industrial action in support of the agreement that may or would be likely to be protected. Rather it states �whether employees wish to engage in particular protected industrial action for the agreement�;

(c) Under the Workplace Relations Act 1996 there was accepted case law that an applicant for a ballot order could not be genuinely trying to reach an agreement if the proposed collective agreement contained prohibited content. 26 Under the Act, industrial action is not employee claim action, and therefore protected industrial action, unless the claims in relation to the proposed enterprise agreement are only about, or reasonably believed to be only about, permitted matters.(paragraph 409(1)(a)) Therefore under the Act the prohibition on protected action ballots involving a claim for prohibited content is now stated explicitly (via s.443(2)) within paragraph 443(1)(a) by reason of s.437(1), rather than reliance on the �genuinely trying to reach an agreement� test under paragraph 443(1)(b);

(d) If this was not the statutory intention, employees could not have confidence that the particular proposed industrial action included in the questions put to them in a ballot would, subject to requirements in relation to conduct and other developments subsequent to the ballot, be protected industrial action, (s.415 - Immunity provision) when they voted on whether they wished to engage in particular protected industrial action;

(e) The construction is not over-technical. The application of paragraph 443(1)(a) in this manner is assisted by the following clause in the Explanatory Memorandum to the Fair Work Bill 2008:

�1770. FWA must make a protected action ballot order if an application has been made in accordance with clause 437 (which deals with content and related requirements) and the applicant is and has been genuinely trying to reach an agreement with the employer of the employees to be balloted (subclause 443(1))� (emphasis added);

(f) Similar to the other pre-requisite in s.443(1) that the applicant for a protected action ballot order has been and is genuinely trying to reach an agreement, the requirement that the particular industrial action in the ballot be protected industrial action �will help to ensure that parties focus on agreement making and the Government does not fully fund ballots authorising industrial action which would be unprotected at the time of the application�; 27

(g) The approach is consistent with paragraph 443(3)(d) which provides that a protected action ballot order must specify �the nature of the proposed industrial action� rather than the nature of the proposed protected industrial action. Whilst FWA can establish that an application does not involve circumstances which are inconsistent with the proposed industrial action becoming protected industrial action, it can not, of course, declare that the proposed industrial action will be protected industrial action.

[48] Such an application of paragraph 443(1)(a) and s.437(1) is assisted by reference to the following clause in the Explanatory Memorandum to the Fair Work Bill 2008 that refers to s.172(1), which provides that an enterprise agreement may be made about certain permitted matters prescribed therein:

�667. Whether an enterprise agreement is about permitted matters is also significant in the context of protected industrial action for the purpose of clause 409 (which deals with employee claim action). Employees and their bargaining representatives cannot organise or take protected industrial action in support of claims for a proposed enterprise agreement that will include terms that are not about permitted matters.�

[49] The organising of industrial action can occur prior to the taking of industrial action and may include the making of an application for a protected action ballot order. If the construction of paragraph 443(1)(a) and s.437(1) which I have adopted is wrong, what then are the express means in the Act of preventing a union from making application under s.437 for an order for a ballot to determine whether employees wish to engage in particular protected industrial action for an agreement when the claims are not only about permitted matters?

[50] I have arrived at this construction not without some reservation given that:

(a) Whilst a protected action ballot order may be of comfort to employees, it does not provide certainty that the industrial action which is authorised by the ballot will, when if engaged in, be protected industrial action;

(b) s.436 provides that the object of Division 8 includes �to establish a fair, simple and democratic process� and s.441 provides that FWA must, as far as practicable, determine applications for protected action ballot orders within 2 working days after the application is made. A requirement that in considering s.437 applications FWA establish whether the particular industrial action on which employees will be voting will be protected industrial action (s.408) has potential to add a degree of procedural complexity but not, in my opinion to an extent that it would delay or frustrate the taking of protected industrial action by employees.

[51] In adopting this construction, I note that the role of FWA in making protected action ballot orders differs significantly from its role in approving enterprise agreement. Section 253 (Terms of an enterprise agreement that are of no effect) has the effect that an enterprise agreement will still be valid even where it includes terms that are not about permitted matters. However, to the extent that a term of an enterprise agreement is not about permitted matters, the term is of no effect. In that respect the Explanatory Memorandum to the Fair Work Bill 2008 states:

�It is not intended that FWA will have to scrutinise each enterprise agreement to ensure that all its terms are about permitted matters as this would unduly delay the agreement approval process.� 28

[52] TMS submits that the MUA claim for the proposed enterprise agreement contains a matter that is not a �permitted matter� for an enterprise agreement, namely that TMS must use the MUA Database for employing its workforce. [Note: At this stage I am not dealing with TMS alternative submission that such a claim is linked to an enterprise agreement which is relevant to paragraph 443(1)(b) and whether the MUA has been genuinely trying to reach an agreement with TMS.]

[53] In Re: Tyco Australia Pty Ltd trading as Wormald 29 the Full Bench stated:

�[20] There is no doubt that the provisions dealing with the negotiation and making of workplace agreements outlaw prohibited content. �It may be accepted that a union which makes prohibited content a part of its claims cannot be said to be genuinely trying to reach agreement. That is because agreement in this context must mean a workplace agreement under the Act, as explained by Senior Deputy President Acton in Kempe Engineering Services. [Endnote: PR973592, 8 August 2006, at paras 21-24] Of course it is not always easy to say whether claims involve prohibited content. Whether it can be said that a union is advancing such claims depends upon the evidence as to the nature of the claims and the union's statements and conduct. � it is conceivable that a party may be 'genuinely trying' to reach an agreement under the Act even though, as a matter of ultimate conclusion, the claims it is advancing do contain prohibited content. In cases where doubt exists it is open to a union to make it clear that it is not pursuing claims containing prohibited content and, given that industrial action to advance such claims is not protected action, it might be prudent to do so.�

[54] The MUA did not concede that such a claim would not be a permitted matter. It submits it has not been seeking that the enterprise agreement prescribe that TMS must use the MUA Database for employing its workforce.

[55] The November 2008 MUA industry log of claims contained as one of the 193 items, the following:

All employers must use the MUA Database for employing their workforce

[56] The notice to initiate a bargaining period the MUA served on TMS on 12 May 2009 did not have amongst its list of subject headings any mention of the MUA Database.

[57] Mr Tracey�s list of 19 items that he emailed to Mr Llewellyn on 4 June 2009 did not include any mention of the MUA Database. Further there was no evidence of any mention of the MUA Database in any subsequent correspondence or discussion between the MUA and TMS on the proposed enterprise agreement.

[58] In his evidence Mr Doleman explained that although the item was contained in the industry log which was applicable to various employers, the particular item was not relevant to TMS. This was because the current agreement already contained Clause 7 (Recruitment, selection and engagement of employees) which included that: �In identifying suitable candidates for a position, the Employer will in the first instance utilize the Maritime Employers� Database and the Employment Assistance System�. He acknowledged that the wording of the item in the industry log of claims was not the union�s intention as the practice is for the database to be one of many employment and recruitment methods that are included in enterprise agreements with the MUA. 30 The MUA was not making a claim in terms of the wording in the industry log of claims,31 although it had not expressly advised TMS of the withdrawal of such a claim.32 Mr Doleman also gave evidence that some persons on the MUA database do not become members of the union until they obtain employment.33

[59] In the circumstances I think that TMS is drawing too long a bow to characterise what has occurred as a MUA demand for �no ticket, no start�. 34

[60] I am satisfied that the particular industrial action which will be the subject of the protected action ballot is not for the purpose of supporting or advancing a claim for the enterprise agreement in terms of TMS�s interpretation of item 13 of the November 2008 industry log of claims. If ever such a claim was made on TMS, for some months the MUA has not been pursing such a claim and the item is irrelevant to the negotiations for the enterprise agreement.

(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.�

[62] The amended protected action ballot order sought by the MUA contains the following:

Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement to govern the terms and conditions of employment with Total Marine Services (TMS), authorise protected industrial action in the form of

an unlimited number of stoppages of work of 4 hours duration?

an unlimited number of stoppages of work of 12 hours duration?

an unlimited number of stoppages of work of 24 hours duration?

an unlimited number of stoppages of work of 48 hours duration?

an unlimited number of stoppages of work of 7 days duration?

bans on tie ups for an unlimited number of periods of 24 hours duration?

bans on tie-ups for an unlimited number of periods of 48 hours duration?

bans on let-go�s for an unlimited number of periods of 24 hours duration?

bans on let-go�s for an unlimited number of periods of 48 hours duration?

bans on the productive use of cranes for an unlimited number of periods of 24 hours duration?

bans on the productive use of cranes for an unlimited number of periods of 48 hours duration?

bans on anchor handling for an unlimited number of periods of 24 hours duration?

bans on anchor handling for an unlimited number of periods of 48 hours duration?

In any Industrial Action taken in reliance on this ballot the following will be exempt:

� All dealings with emergency equipment in any manner

[63] TMS submits that for the following reasons the order sought does not satisfy the requirements of s.437(1):

(a) A dictionary meaning of �specify� means to �state in detail� and the proposed questions in the application do not detail the �nature of the proposed industrial action�;

(b) A lack of detail in the MUA�s draft order is contrary to the object of Division 8 in s.436 which includes �to establish a � democratic process�. It does not enable employees to understand the implications for them while at work, and other relevant circumstances. For example, the location and nature of the proposed industrial action is unclear;

(d) It is not clear what the consequences would be for relevant employees if the industrial action takes place on the high seas, where employees have to comply with the master�s demands or on foreign flag vessels. The MUA has not informed employees of such consequences notwithstanding that as a �representative� it has an obligation to do so. If the relevant employees are not informed of those consequences they cannot make an informed choice on how to vote.

[64] There is ample authority for the meaning of the term �stoppage of work�. 35

[65] In Re: Country Fire Authority, 36 the Full Bench, when considering an appeal involving an application for an order for a protected action ballot under the Workplace Relations Act 1996, considered wording which is similar to paragraph 437(3)(b) and stated:

�[20] � it appears logical that when employees are asked whether to authorise industrial action in a protected action ballot, the nature of the proposed industrial action is expressed clear enough to enable them to make an informed choice.

[21] The predecessor to s.441(6) was s.170MO(5). The latter section was considered by a Full Court of a Federal Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463. At paragraph 88 the Court said:

�[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, �an indefinite strike of all employees�, �a lockout of all employees employed in the AB fabrication plant�, �a ban on overtime�, �a ban of the use of MN equipment�, �rolling stoppages throughout the mine�, �a ban on the servicing of delivery vehicles�.�

[22] The Federal Court has found serious questions to be tried in relation to whether notices adequately describe the nature of the intended industrial action in PWB Anchor v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1482 (13 October 2000) per Goldberg J at paragraphs 24 and 25; Adelaide Brighton Cement v Australian Workers Union [2002] FCA 601 (10 May 2002) per Von Dossa J. at paragraphs 20-22 and Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union [1999] FCA 1443 (27 August 1999) per Carr J at paragraphs 13-20.

[31] In determining whether to engage in protected action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view, this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances.�

[66] If particular protected industrial action for an enterprise agreement is authorised by a protected action, before an employee engages in employee claim action for the proposed agreement, the bargaining representative must given written notice of the action to the employer. Section 414 sets out such requirements, including the minimum periods of notice and that the nature of the action must be specified.

[67] Division 3 (Geographical application of this Act) of Part 1-3 (Application of this Act) of the Act and Division 3 (Geographical application of the Act) of Part 1-3 (Application of the Act) of the Fair Work Regulations 2009 may have application for some relevant employees on the high seas. Regulation 1.15D (Modification of application of Act - foreign ships engaged in innocent passage) may have some application, depending on the circumstances. Subject to those provisions there is nothing in the Act to suggest that employee claim action (which has been authorised by a protected action ballot) will not attract the immunity provisions of s.415.

[68] As an arbitration tribunal charged with statutory powers, duties and obligations it is not the role of FWA, generally speaking, to form an opinion about issues of jurisprudence in relation to any competing laws when considering s.437 applications. In any event, TMS only raises queries and has not gone so far as to suggest that s.415 would not have force and effect if relevant employees engaged in protected industrial action for the proposed enterprise agreement on the high seas or on foreign flag vessels.

[69] I am not satisfied that the object of Division 8 would be defeated if, other requirements being satisfied, industrial action is taken by the relevant employees consistent with the questions in the MUA�s amended application.

[70] The questions to be put to relevant employees, as contained in the amended protected action ballot order sought by the MUA, would sufficiently enable them to understand the nature of the particular protected industrial action on which they will be balloted, i.e., to understand what work would not be undertaken and what work would remain to be done.

[71] The questions sufficiently include the nature of the proposed industrial action and comply with paragraph 437(3)(b).

[72] TMS did not suggest that the MUA was engaging in pattern bargaining.

[73] The application does not involve circumstances which are inconsistent with the proposed industrial action becoming protected industrial action.

[74] For the purposes of paragraph 443(1)(a) the application has been made under s.437.

At a glance

Court

Decision date

Source

Judgment (339 paragraphs)

The Maritime Union of Australia v Total Marine Services Pty Ltd - re Protected action ballot order [2009] FWA 187 (1 September 2009)

Parties

Legislation Cited (8)

Cases Cited (2)