Fair Work Act 2009

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:

(c) the date by which voting in the protected action ballot closes;

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

[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

(c) meets the common requirements set out in Subdivision B; 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;

(c) Questions 1-5 refer to stoppages of work and it is not clear what is intended;

(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.

HAS THE MUA BEEN GENUINELY TRYING TO REACH AN AGREEMENT WITH TMS (paragraph 443(1)(b))

[75] Paragraph 443(1)(b) remains substantially unchanged from paragraphs 461(1)(a) and (b) of the Workplace Relations Act 1996, although there is no longer the requirement that the genuinely trying to reach an agreement is limited to the bargaining period that existed under the former legislation, but does not exist under the Act. Nothing seems to turn of the change in wording from �reach agreement� to �reach an agreement�, which is not mentioned in the Explanatory Memorandum to the Fair Work Bill 2008.

[76] The effect of the provision is that the applicant must not only have tried to reach an agreement but must also be genuinely trying to reach an agreement at the time the application is made to and determined by FWA. These involve the same concepts but refer to different points in time.

[77] Firstly, I will consider the requirement that FWA be satisfied that the applicant has been genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[78] Section 18 of Part 5 (Effect of conduct engaged in while bargaining for WR Act collective agreement) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that FWA in deciding whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed agreement, may take into account conduct engaged in by the bargaining representative while bargaining for a collective agreement under the Workplace Relations Act 1996.

[79] The issue of whether a party is genuinely trying to reach an agreement was considered by Munro J (in another context) in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors 37 (AIG v AFMEPKIU) in which His Honour stated that a party's negotiating conduct must evidence a genuine try to reach an agreement and if the party, in truth, is not trying to reach agreement then the negotiating conduct fails the test. He continued:

�[45] Such questions of fact and degree obviously need to be answered by reference to evidence and details of particular facts. The more the negotiation conduct can be categorised as evidencing a refusal to allow agreement other than on an all or none basis, the greater the likelihood that it should be found to fail the genuinely try to reach agreement with the other negotiator test. However, there are variations and permutation of demands, conduct, and character of negotiating parties that must be assessed.�

[80] The decision in AIG v AFMEPKIU was adopted by the Full Bench in Re: Media, Entertainment and Arts Alliance 38 which stated:

�[46] We adopt those observations as a useful guide for the application of the genuine try test. In particular, we endorse the emphasis given to the application of the test through an even handed assessment of the industrial context, of demands, conduct, and character of the negotiators and negotiations, in which it becomes an issue. We note that a similar emphasis upon assessment of circumstances, context, and reasonableness, may be discerned in decisions dealing with the analogous concepts of �bargaining in good faith� in United States industrial jurisprudence, and in the construction and application of �best endeavours� clauses in Australian and U.K. commercial contract law.� [End notes omitted]

[81] The questions of whether the MUA has been genuinely trying to reach an agreement with TMS involves questions of fact to be determined by reference to all of the circumstances of the particular case. Fact finding, therefore, is an essential element in the decision required by paragraph 443(1)(b). 39

[82] The satisfaction referred to in paragraph 443(1)(b) requires the exercise by FWA of a discretion. 40

[83] TMS submits that the question of whether the MUA had made or was making a �genuine try� to reach an agreement before the lodgement of its application should be objectively assessed and that the MUA�s subjective intention is not relevant.

[84] However it conceded 41 that this approach was at odds with the case law in LHMU v CSBP (on which it sought to rely elsewhere in this matter) in relation to a protected action ballot application under the Workplace Relations Act 1996 which, when referring to what constitutes genuinely trying to reach agreement, included:

�[77] Whether the test required is a purely objective one was canvassed by the parties at my request. I consider that the test should be an objective one based on the evidence but it does not mean that it should be a solely objective test. Inevitably, in my view, there will be elements of subjectivity.� 42

[85] Assistance in the meaning of this aspect of paragraph 443(1)(b) can be drawn from the Explanatory Memorandum to the Fair Work Bill 2008 which, when dealing with the �genuinely trying to reach an agreement� expression in s.413 (Common requirements that apply for industrial action to be protected industrial action) stated.

�Specified persons organising or engaging in industrial action must be genuinely trying to reach an agreement (subclause 413(3)). The question whether a person is genuinely trying to reach an agreement requires a subjective assessment of the actual intention of the person and the overall circumstances. � � 43

[86] I will adopt the approach of the Commission in LHMU v CSBP referred to above.

[87] I will now consider the issues that were canvassed in respect of the question of whether the applicant has been genuinely trying to reach an agreement.

[88] In support of its submission that paragraph 443(1)(b) requires an applicant to first really try to get as far as it can in negotiating a proposed enterprise agreement with the employer, TMS submits that:

(a) According to the Concise Macquarie Dictionary, 44 to �reach� means to get as far as; �genuinely� means really;

(b) Unlike s.461(1) of the Workplace Relations Act 1996, which required an applicant to have genuinely tried to reach agreement during the bargaining period, no time limit for the trying is prescribed;

(c) Paragraph 443(1)(b) referred to the reaching of �an agreement�, not �a proposed enterprise agreement�; 45

(d) A protected action ballot order is a necessary pre-condition for protected industrial action. It opens the gateway to industrial action. Therefore the consequences to an employer of such an order are potentially grave and of paramount importance;

(e) In the context of the Act, protected industrial action is a last resort.

[89] Whilst TMS might submit that the dictionary meaning of individual words might support its submission, a similar approach by McCarthy DP in LHMU v CSBP (see above) included the following:

�[62] What then is the ordinary meaning of the words �genuinely try�? To �try� has a variety of meanings. The dictionary definitions that are relevant here define �try� as:

�try : 5. Make an attempt at; make an effort to achieve or accomplish� [New Shorter Oxford English Dictionary]

�try : 1. to attempt to do or accomplish� [Macquarie Concise Dictionary]

[63] �Genuinely� is the adverb of the noun �genuine�. The relevant dictionary definitions define �genuine� as:

�genuine: 1. being truly such; real; authentic... 2. properly so called... 3. sincere, free from pretence or affectation...� [Macquarie Concise Dictionary]

�genuine: 1. Natural or proper to a person or thing. 2. Having the character claimed for it; real, true, not counterfeit� [New Shorter Oxford English Dictionary]

[64] �Genuinely try� then has an ordinary meaning of making a real, true and authentic attempt or effort to achieve or accomplish something. The effort or attempt must be an attempt or effort that is authentic or true.�

[90] The context of �genuinely try� should be viewed within the framework of the Act as a whole. In that respect:

(a) s.230 (When FWA may make a bargaining order) enables FWA to make a bargaining order, subject to it being satisfied of certain requirements, including that one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements;

(b) s.240 (Application for FWA to deal with a bargaining dispute) enables a bargaining representative for a proposed enterprise agreement to make application for FWA to deal with a dispute if the bargaining representatives for the agreement are unable to resolve the dispute;

(c) s.413 (Common requirements that apply for industrial action to be protected industrial action) includes a requirement that bargaining representatives must be genuinely trying to reach an agreement;

(d) Division 6 (Suspension or termination of protected industrial action by FWA) includes grounds for FWA to suspend or terminate protected industrial action and Division 7 (Ministerial declarations) provides for declarations that can be made by the Minister to terminate protected industrial action.

[91] The above demonstrates that there is ample provision elsewhere in the Act to assist the bargaining process in circumstances where an employer might form the opinion that the bargaining representative of employees has acted prematurely in making application for a protected action ballot order.

[92] TMS submits that the MUA had not genuinely tried to reach agreement because of its conduct in the discussions for the proposed agreement by:

(a) not providing it with sufficient detail of its claims, as TMS had requested;

(b) not responding to the TMS proposals to a sufficient extent;

(c) Mr Tracey not spending sufficient time in discussions with Mr Llewellyn; and

(d) parking some matters which it would return to later.

[93] Whilst TMS has not been seeking a draft of the proposed enterprise agreement from the MUA, it submits that the MUA has not been sufficiently fulsome in respect of its claims.

[94] It is trite to say there is no requirement in the Act that a union must reach an impasse or the like in negotiations for an enterprise agreement before making application for a protected action ballot order.

[95] Employee claim action, which occurs subsequent to industrial action being authorised by a protected action ballot, is �for the purpose of supporting or advancing claims in relation to the agreement.� (s.409(1))

[96] There is nothing in the Act to indicate that such protected industrial action requires a bargaining representative of employees to try and get as far as it could in negotiations before taking such industrial action. Rather, the Act relies on the �genuinely trying to reach an agreement� test.

[97] No doubt there would be circumstances where a union could act so prematurely in making application for a protected action ballot that the circumstances would demonstrate that it had not been genuinely trying to reach an agreement (and the MUA gave a hypothetical example in its submissions). 46

[98] Certainly genuinely trying to reach an agreement means more than serving the other party with what constitutes a claim, which was the context in which French J, in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2), 47 considered the requirements for the initiation of a bargaining period under the Workplace Relations Act 1996.

[99] In Part 3-3 of the Act, the term �proposed enterprise agreement� (which is included in s.437(1)) �can be an idea, or it can be a series of claims on behalf of a group of employees whose bargaining representatives seek to negotiate with the employer with a view to it becoming an agreement that is ultimately approved by FWA.� 48

[100] I agree with the MUA that in considering a s.437 application, it is not for FWA to determine that a point has been reached in the bargaining where a bargaining representative �can go and ask the employees if they want to take action now.� 49 The questions that FWA must consider are whether the representative has been and is genuinely trying to reach an agreement. As already stated, those involve questions of fact to be determined by reference to all of the circumstances of the particular case.

[101] Without doubt there is a close relationship between genuinely trying to reach an agreement and bargaining in good faith. Examples of this view are:

(a) a decision of Marshall J in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd 50 which considered whether a party had �genuinely tried to reach agreement�. In that decision His Honour cited with approval (with the alteration of the word �would� to read �could�) Hancock SDP in Re Australian, Rail, Tram and Bus Industry Union51 where His Honour, when dealing with bargaining in good faith said:

�� bargaining in good faith does not require a willingness to make concessions. It is consistent with adopting �a hard line�. Equally, it does not imply moderation of demands. It does imply a preparedness to consider seriously offers and proposals made by the other side and to take account of arguments; but if, having done these things, a bargaining party is unmoved, it may still be bargaining in good faith. The inability of parties to reach an agreement is not evidence that either is acting in bad faith. The adoption of a hard line or the making of extravagant demands may evince an underlying intention of obstructing agreement. This tactic would constitute bad faith, but in few cases, if any, could its existence be inferred from the bargaining stance alone.� 52

(a) The decision of the Full Bench in Re: Media, Entertainment and Arts Alliance, referred to in paragraph 80 above.

(b) The Regulatory Analysis in the Explanatory Memorandum to the Fair Work Bill 2008 discussed the respective concepts as follows:

�r.137. Currently, the only test to ensure the parties are genuinely bargaining occurs if an application is made for a secret ballot for industrial action. This means that it is possible for parties to act capriciously or unfairly in bargaining without repercussions.

r.138. An employer�s ability to object to secret ballot orders on grounds that the union has not genuinely sought to reach agreement has created a mechanism for employers to ask the AIRC, albeit indirectly, to impose good faith bargaining requirements on employee representatives.[Footnote: G Orr and S Murugesan �Mandatory Secret Ballots Before Employee Industrial Action� Australian Journal of Labour Law, 20(3), November 2007] However, there is no reciprocal right for employees to impose good faith bargaining requirements on employers, creating an imbalance.�

�� the purpose of the proceedings is not to make a good faith bargain order. But, in my submission, it defies common sense to suggest that genuinely trying to reach an agreement does not require a consideration of the good faith bargaining requirements, particularly given the context of these provisions in the Act, the references to good faith bargaining requirements, and others such as 412(3)(c), that is the overall notion of bargaining.� 53

[103] The MUA opposed such an approach, as outlined in subparagraphs 11(a), (b) and (c) above.

[104] In my view consideration of whether FWA is satisfied that a bargaining representative has been or is genuinely trying to reach an agreement under paragraph 443(1)(b) is likely to include consideration of any evidence that the bargaining agent has been bargaining in good faith.

[105] Section 228 (Bargaining representatives must meet the good faith bargaining requirements) prescribes certain requirements that a bargaining representative for a proposed enterprise agreement must meet. Given that requirement I can not see how, in considering the pre-requisite for a protected action ballot order under paragraph 443(1)(b), namely whether the representative has been or is genuinely trying to reach an agreement, it would not be relevant to take into account that the bargaining representative is meeting the prescribed good faith bargaining requirements of the Act.

[106] However, that is not to say that in the course of considering paragraph 443(1)(b) FWA must of necessity consider whether all or any of the requirements of s.228 have been met or make a finding to that effect. If that had been the Parliament�s intention it would have included such a requirement in paragraph 443(1)(b).

[107] Further, consideration by FWA under paragraph 443(1)(b) of whether it is satisfied that a bargaining representative has been or is genuinely trying to reach an agreement with an employer is not limited to an assessment of whether the representative is complying with the good faith bargaining requirements of the Act.

[108] In relation to the TMS suggestion that in considering paragraph 443(1)(b) FWA should consider as relevant the factors included in s.412(3), which are factors relevant to whether bargaining conduct with a particular employer is not pattern bargaining because the bargaining representative is genuinely trying to reach an agreement, regard must be had to s.412(5) which prescribes that s.412 does not affect the meaning of the expression �genuinely trying to reach an agreement� used elsewhere in the Act. In any event, the factors in s.412(3) are not exhaustive.

Linkages to matters that are not Permitted Matters

[109] The issue of whether paragraph 443(1)(b) is satisfied in circumstances where a bargaining agent is concurrently seeking an enterprise agreement under the Act and a common law deed or the like containing matters that are not permitted matters, is similar to the issue under the Workplace Relations Act 1996 that was considered by the Full Bench in Re: Country Fire Authority. 54 The Full Bench stated:

�[38] In our view, the pursuit of claims which involve prohibited content at the same time as seeking a Workplace Agreement, whether the prohibited content forms part of the proposed agreement or otherwise, strongly suggests that the Union is not genuinely trying to reach a Workplace Agreement which complies with the requirements of the Act. In the circumstances of this case, claims for prohibited content had been made, and at no time prior to, or during the proceedings before the Commissioner, was there any reliable evidence to show that the claims were no longer being pursued or were otherwise irrelevant to the negotiations for a collective agreement. In these circumstances, we do not believe that the Commissioner could have been satisfied that the UFU was genuinely trying to reach an agreement during the bargaining period, or at the time of the application.�

[110] The advancing of claims for matters that are not permitted matters will not prevent a finding that the bargaining representative has genuinely tried and is genuinely trying to reach an agreement within the meaning of paragraph 443(1)(b) where there is satisfactory evidence that a bargaining representative will not press any claims that are not permitted matters before the enterprise agreement is concluded. 55 Whether it can be said that a union is advancing or pressing such claims depends upon the evidence as to the nature of the claims and the union�s statements and conduct.56

[111] From the evidence I am satisfied that there have been and remain contemporaneous claims by the MUA for an enterprise agreement (which does not contain prohibited content) and the MOU.

[112] However the MUA�s pursuit of both claims is not enough for FWA to be satisfied that the MUA has not been and is not genuinely trying to reach an agreement with TMS on the terms of an enterprise agreement.

[113] What FWA must consider is whether, within all of the circumstances, the MUA�s statements and conduct in relation to the proposed MOU and in relation to the proposed enterprise agreement are such that it can be satisfied that the union has genuinely tried and is genuinely trying to reach an agreement.

[114] On the evidence 57 I find, although not without some hesitation, that the MUA�s claims in respect of the enterprise agreement and the MOU have not been and are not sufficiently linked such that I can draw an inference that the MUA will not enter into the proposed enterprise agreement without an agreement to the MOU.

[115] As already stated, if ever such a claim was made on TMS, for some months the MUA has not been pursing such claim and the item is irrelevant to the discussions or negotiations for the enterprise agreement.

[116] There is insufficient evidence from which I can drawn the inference that the MUA will not enter into the proposed enterprise agreement without an agreement to TMS�s interpretation of item 13 of the MUA�s industry log of claims.

[117] I am satisfied that the MUA has considered training as a make or break issue. 58

[118] Payment by employers of a training levy was not included amongst the MUA�s 193 items in its industry log of claims. This is supported by the AMMA document 59 in response to the MUA�s industry log of claims which stated in a column headed �Status� against Item 1:

�During negotiations MUA referred to a claim for a training levy on operators. P Crumlin addressed operators in Perth on the nature of the claim and creation of Maritime Employees Training Ltd (MET) December 5. It is noted that the log of claims does not make any reference to the MET or a training levy.�

[119] The basis of the purported linkage comes from evidence of what Mr Doleman said during the industry level discussions on 18 November 2008 and what Mr Crumlin said at the industry level discussions on 5 December 2008. 60 According to Mr Llewellyn, a training levy was how the MUA thought to address the problem with training61 and it was the only proposal the MUA put.62

[120] During Mr Doleman�s cross-examination the following exchange occurred:

�Now, at that meeting on 18 November - I'm sorry, just bear with me. My instructions are that you actually stated to all present that there would be no agreement unless the employers agreed to an MUA training levy paid into the company known as Maritime Employees Training Ltd. What is your response to that?---Not true. It was a first meeting of the enterprise process. There are 16 claims on training. It was the first meeting, hardly a meeting to make such a statement and in fact following that meeting the national secretary, Paddy Crumlin, gave a presentation to all of the employers on the component parts of the MET training scheme on �what the costs may be. It was a voluntary arrangement for employers to come in. There's economies of scale for training.� 63

[121] Ms Carnachan understood the MUA claim to mean that as TMS gives the officers 5% performance pay, it wanted a training levy for the relevant employees. According to her contemporaneous notes of a meeting between vessel operators and the MUA (which Mr Mick Doleman attended) on 20 January 2009:

�Mick � bulk of training spent on officers not IRS. MUA happy to sit down as frequently as logically possible to talk about training. Will not sign off on EBA without progression of training position. Can do it as cold, calculated EBA negotiation where MUA impose their views or discuss 5% performance paid to officers, for just tilting head. IRS want as training levy � don�t believe in getting something for nothing.� 64

[122] There was no evidence of the MET demand or a training levy being the subject of discussion or correspondence between Messrs Tracey and Llewellyn.

[123] Ms Carnachan�s evidence included her contemporaneous notes of a further meeting between vessel operators and the MUA on 10 July 2009. 65 Those notes made no mention of a MET demand or a training levy.

[124] There is insufficient evidence from which I can draw the inference that the MUA will not enter into the proposed enterprise agreement without an agreement to TMS paying a training levy for the relevant employees into MET.

�A bargaining representative on its ordinary natural meaning clearly means a representative of someone, and representative is to represent someone's views. Now, how on Earth an applicant could argue that there's good faith bargaining going on or, more particularly and more relevantly, there's a genuine try to get as far for an agreement which under this Act is made between the employer and the employee, and how it can say it's genuinely trying to do that as a bargaining representative, which is what section 443(1) requires, without some evidence that it is representing views, in other words, there has been some communication between employees and the union is, in my submission, beyond me.� 66

[126] I agree with the MUA submission that there is nothing in Division 8 that would require FWA, in determining applications for protected action ballot orders, to supervise the conduct of bargaining representatives in relation to the employees they represent. 67

[127] The absence on the part of TMS of knowledge of the contact between MUA officials and the relevant employees is not a relevant consideration in dealing with this application.

[128] The process of allowing bargaining representatives to determine whether employees wish to engage in particular protected industrial action for the purpose of supporting or advancing claims is far different to the process for the approval of enterprise agreements, which includes the requirement (s.180(5)) that the employer take all reasonable steps to ensure that the terms of the agreement and the effect of those terms are explained to the employees. Also, the employer gives affected employees a copy of, or access to, the proposed agreement and certain other material prior their approving the agreement.

[129] I am satisfied on the evidence that negotiations had been occurring between the MUA and TMS over the terms of a proposed enterprise agreement. This is evidence, amongst other things, by Mr Tracey�s actions in withdrawing several of the MUA claims.

[130] Further I am satisfied on the evidence that both parties engaged in genuine negotiations directed to concluding the agreement, including Mr Tracey�s itemisation of the MUA�s claims, Mr Llewellyn�s provision of a draft enterprise agreement and his response in respect of the MUA�s construction claim and Mr Tracey�s response to Mr Llewellyn�s response.

[131] I appreciate TMS frustration that there is much detail still to be addressed with the MUA and I do not take lightly the need for a specialist provider of manning to estimate the costs of union claims. However in my experience with industrial negotiations, an absence of detail at this stage of the bargaining process is not unusual. Indeed, in order to progress negotiations, it is not extraordinary for an employer to take responsibility for fleshing-out what the parties have been discussing by volunteering to prepare drafts of options to which the parties can then direct their focus. Of course, there is no obligation on an employer to adopt such an approach.

[132] The MUA did not act so prematurely in making application for a protected action ballot order such as to demonstrate that it was not genuinely trying to reach an agreement with TMS.

[133] The claim for overall parity with tradesmen on construction sites was sufficiently expressed and would have been addressed by further meetings of the parties, as would the claims that had been accepted by Mermaid Marine and Go Offshore and which the MUA wishes to press with TMS � although I do not share Mr Tracey�s optimism that, with Mr Bull�s assistance, reaching agreement with TMS on claims that have been accepted by those employers would only take 30-40 minutes. 68

[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 drawn 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.

[136] At this stage of the negotiations the MUA�s construction claim for parity with tradesmen over a given period can not be regarded as so extravagant and fanciful as not to be a serious claim, even if the achievement of such an outcome may seem remote.

[137] Given s.18 of Part 5 (Effect of conduct engaged in while bargaining for WR Act collective agreement) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 nothing turns on the MUA not having advised TMS until 28 July 2009 that it was the bargaining representative under the Act.

[138] I am satisfied that for the purposes of paragraph 443(1)(b) of the Act, the MUA has been genuinely trying to reach an agreement with TMS in relation to a proposed enterprise agreement for the relevant employees.

IS THE MUA GENUINELY TRYING TO REACH AN AGREEMENT WITH TMS (paragraph 443(1)(b))

[139] The second requirement of paragraph 443(1)(b) is that the applicant must be genuinely trying to reach an agreement. This is expressed by reference to the present, or the time of making or determining the application. 69

[140] This condition involves similar considerations to those I have already traversed on whether the MUA has been genuinely trying to reach an agreement.

[141] There is nothing in the scheme of the Act to suggest that the lodgement of an application for a protected action ballot order should be taken to be evidence that the bargaining representative is no longer genuinely trying to reach an agreement with the employer.

[142] Although the last correspondence from Mr Tracey to Mr Llewellyn was on 22 July 2009, given the circumstances, I am satisfied that at the time of the making and determination of the application the MUA is genuinely trying to reach an agreement with TMS on the proposed enterprise agreement.

[143] Paragraph 443(1)(a) has been complied with. The application for a protected action ballot order has been made under s.437.

[144] I am satisfied that that the requirements in paragraph 443(1)(b) have been met, namely that the MUA has been, and is, genuinely trying to reach an agreement with TMS which is the employer of the employees who are to be balloted.

[145] The MUA notified TMS of the application, as required by s.440.

[146] I am obliged to grant the application for a protected action ballot order. I order accordingly [PR988979].

Mr Casperz with Ms L D�Ascanio for Total Marine Services Pty Ltd

2 Paragraph 15AB(1)(a) of the Acts Interpretation Act 1901. Subparagraph 15AB(2)(e) of that Act provides that the material that may be considered includes any Explanatory Memorandum relating to the Bill containing the provision.

3 And I accept, of course, the TMS submission that in referring to that material, the primary task of FWA is to construe the statute and not the Explanatory Memorandum.

11 Exhibit S1, Annexure WT1.

12 Exhibit S2, para 12.

14 Exhibit S1, Annexure WT2.

15 Examples included, Wages and classifications, Expenses, Hours of work, Overtime.

16 Exhibit S1, Annexure WT3.

17 Exhibit S1, Annexure WT4.

19 Exhibit S1, Annexure WT5.

20 Exhibit S1, Annexure WT6.

22 Exhibit S1, Annexure WT7.

23 Exhibit S1, Annexure WT8.

24 PN1183, PN1187, PN1189, PN1193, PN1199 and PN1200.

26 Re: Tyco Australia Pty Ltd trading as Wormald, PR974317, 12 October 2006, per Giudice J, Lawler VP, Williams C.

27 Refer to r.321 of the Regulatory Analysis within the Explanatory Memorandum to the Fair Work Bill 2008.

34 To which s.346 (Protection) would apply and, as such, would be an �objectionable term� (s.12 � The Dictionary) and therefore an �unlawful term� of an enterprise agreement (s.194). For industrial action to be employee claim action, s.409(3) prescribes that the action must not be in support of, or to advance, claims that include unlawful terms in the proposed enterprise agreement.

35 For example, City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union-Western Australian Branch, [2008] AIRC 135, 13 February 2008, per Williams C, which canvassed the issue.

36 PR973841, 8 September 2006, per Watson VP, Lacy SDP and Hingley C.

38 PR928033, 11 March 2003, per Munro J, Leary DP and O�Connor C.

39 Similar to the situation with s.461 of the Workplace Relations Act 1996 - Re: Tyco Australia Pty Ltd trading as Wormald, op cit, at para 12.

40 Similar to the comparable provision in s.461 of the Workplace Relations Act 1996 - Bilfinger Berger Services (Australia) Pty Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied services Union of Australia, [2008] AIRCFB 763, 7 October 2008, per Giudice P, Lacy SDP and Gay C, at para 26.

42 Liquor, Hospitality and Miscellaneous Union � Western Australian Branch v CSBP Limited and CSBP Limited v Liquor, Hospitality and Miscellaneous Union, (LHMU v CSBP) 15 June 2007 [2007] AIRC 469, per McCarthy DP.

48 Clause 643 of Explanatory Memorandum to the Fair Work Bill 2008.

50 [1999] FCA 310, 91 IR 356.

55 Refer to the summary of decisions of the Commission regarding the requirements of s.461 of the Workplace Relations Act 1996 as they related to the inclusion of prohibited content, contained in the decision of VP Lawler in CFMEU v Ulan Coal Mines Ltd, PR974347, 13 October 2006, at para 13. Similar principles apply under the Act in relation to matters that are not permitted matters.

56 Refer to Re: Tyco Australia Pty Ltd trading as Wormald, op cit, at para 20.

57 Including, Exhibit C14 which refers to a donation but nothing about any link with the making of enterprise agreements and Mr Doleman�s evidence (PN378) that it was absolutely untrue that he had said that no enterprise agreement would be signed without employers agreeing to the MOU covering NZ employees.

69 Re: Country Fire Authority, op cit, at para 33.

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