[2009] FWA 290 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
COMMISSIONER THATCHER |
SYDNEY, 16 SEPTEMBER 2009 |
Application for bargaining orders – whether good faith bargaining requirements met by union
[1] Total Marine Services Pty Ltd (TMS) has applied to Fair Work Australia (FWA) under s.229 of the Fair Work Act 2009 (the Act) for bargaining orders under s.230 of the Act.
[2] The application is in relation to negotiations between TMS and the Maritime Union of Australia (MUA) for a proposed enterprise agreement to replace the Total Marine Services Pty Ltd – Integrated Ratings, Cooks, Caterers and Seafarers Agreement 2006-2009.
[3] The orders TMS seeks is that the MUA provide it with:
1. a tracked changes version of the amendments the MUA proposes to the existing agreement together with a reasonable explanation of the rationale/basis for any increase in payments or benefits to employees covered by the agreement;
or
2. as an alternative to 1, an annotated version of the MUA’s industry log of claims, which identifies the claims therein that are being pursued against TMS, together with a reasonable basis/explanation of the rationale for such claims;
and
3. a written response to the TMS proposed claims which were contained in the tracked changes version of the proposed agreement that it provided to the MUA.
[4] Section 230 (When FWA may make a bargaining order) relevantly prescribes:
“Bargaining orders
(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; and
(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) FWA must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) …
(c) …
(d) …
Good faith bargaining requirements not met
(3) FWA must in all cases be satisfied:
(a) that:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) …; and
(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”
[5] The good faith bargaining requirements referred to in subparagraph 230(3)(a)(i) are prescribed in s.228 as follows:
“228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
(2) The good faith bargaining requirements do not require:
[6] There is no dispute that TMS and the MUA are each bargaining representatives 1 for a proposed enterprise agreement or that the application for the bargaining order has been made under s.229 (Applications for bargaining orders).
[7] Rather, the contest between the parties is whether the MUA has not met, or is not meeting, the good faith bargaining requirements in paragraphs (b), (c), (d) and (e) of s.228(1).
[8] The TMS submissions may be summarised as:
(a) Despite its requests to do so, the MUA has persistently refused to provide TMS with all of the claims made in relation to the replacement agreement;
(b) The actions of the MUA have created confusion about the nature and extent of the claims made against TMS;
(c) The MUA has not responded to the TMS proposal in relation to the replacement agreement or given genuine consideration to it.
[9] The MUA submits that:
(a) For some time, TMS has been aware of the MUA claims;
(b) It has been seeking to meet with TMS, which has been refusing to meet with the union;
(c) The TMS application is about putting form over substance. 2
[10] 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 it is reasonable in all the circumstances to make a bargaining order in relation to a 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.
Evidence
[11] Evidence on behalf of TMS was given by Mr Michael Llewellyn, Industrial Relations and Business Development Manager, TMS.
[12] No witnesses were called by the MUA.
[13] In paragraphs 13 to 34 of my decision of 1 September 2009, 3 which made an order that the MUA hold a protected action ballot of employees to be covered by the proposed enterprise agreement, I outlined the discussions and negotiations between the parties from 18 November 2008 up until 3 August 2009.
[14] In these proceedings I adopt those findings (not being persuaded otherwise by the evidence or submissions), with the addition of the following:
(a) In relation to industry level discussions, on 4 May 2009, prior to the MUA serving TMS with a notice to initiate a bargaining period, Mr Doleman, Assistant National Secretary, MUA wrote to AMMA requesting a meeting with industry employers on the AMMA further offer dated 3 April 2009 as soon as possible. However the two companies that had already been served with notices to initiate a bargaining period were not to be invited because they were subject to enterprise negotiations; 4
(b) At the enterprise level meeting between the MUA and TMS on 19 June 2009, Mr Tracey, Organiser, MUA and Mr Bray, Assistant Secretary, WA Branch of the MUA, advised Mr Llewellyn that the MUA had not had the opportunity to respond to the TMS tracked changes version of its draft collective agreement (which it had forwarded to the union on 2 June 2009) and, according to Mr Llewellyn, ‘they would get back to us shortly’; 5
(c) At the meeting between the MUA and TMS on 23 June 2009 when Messrs Tracey and Bray provided TMS with the enterprise claims it was pressing, Mr Llewellyn sought further details - which would enable TMS to cost and make an informed response to the claims. According to Mr Llewellyn, Mr Tracey undertook to respond ‘within a few days.’ 6
[15] Subsequent to the MUA lodging its application for a protected action ballot order on 31 July 2009, on 3 August 2009 TMS responded to Mr Tracey’s request of 28 July 2009 for a list of available dates to continue negotiations. The TMS letter stated that:
“To date, whilst TMS has provided its detailed position with respect to an enterprise agreement to be made under the Act (by way of the draft Agreement provided on 21 May 2009 and again on 2 June 2009), the MUA has only identified in broad terms the matters it seeks to address in any proposed enterprise agreement.
… TMS requires information and detail about the matters the MUA seeks to address in the proposed enterprise agreement. For example, and as previously requested, we require details about those matters to enable us to conduct a costing exercise on each item. 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.” 7
[16] On 6 August 2009 (after the protected action ballot order proceedings in FWA had commenced) Mr Tracey emailed Mr Llewellyn as follows:
“Just a quick email to confirm the process with respect to the EBA as advanced by us, and we believe agreed by TMS, in the meetings in May and June. The ballot process will take care of itself but we still need to reach some landing on this EBA.
It is our understanding that with the attached Industry Log sent to us by AMMA in February, and referred to as C3 in yesterday’s hearing, the following was agreed:
1. The starting point is the industry log.
2. All matters agreed in it, that is matters agreed at the industry level, are also agreed between us. That is the 43 matters highlighted in green in the attached Industry Log.
3. We would then meet and separate out the enterprise issues in a process agreed to along the lines of the Go and MMS meetings.
4. Because of the work with Go and MMS we think this meeting will take half an hour or so.
Please confirm when you can meet again.” 8
[17] In a letter dated 7 August 2009 9 Mr Llewellyn formally responded to Mr Tracey. After advising that TMS considered Mr Tracey’s email to have been prompted by his evidence in the FWA proceedings and that TMS did not wish to pre-empt FWA’s determination of the application, he indicated that:
(a) TMS was not aware that the MUA had agreed to AMMA’s position in respect of any of the matters in the MUA’s industry log of claims;
(b) AMMA’s agreement to the 43 items appeared to be inconsistent with certain aspects of the MUA’s claims;
(c) There had been ample opportunity for the parties to meet to separate out the enterprise issues prior to the MUA making application for the protected action ballot order;
(d) Given the lack of detail of the issues the MUA was seeking, TMS could not comment on how long the meeting would take;
(e) TMS was unclear as to, and confused about, ‘the current state of affairs (and)(sic) the nature and extent of the MUA’s claims regarding any proposed enterprise agreement’;
and concluded:
“In these circumstances, it is appropriate and reasonable that the MUA now document particulars of the claims that it makes against TMS, including advising its attitude to the TMS claims contained in the tracked changes version of the document that is attachment WT4 to your statement. This should be done as a precursor to any further meetings that the MUA proposes with TMS, to allow TMS a proper opportunity to consider such.”
[18] On 14 August 2009 Mr Tracey emailed his response 10 which expressed concern about TMS confusion on where the parties were at in the negotiations. Further, he:
(a) attached a 22 page ‘TMS log of claims’ (which was an updated version of the AMMA response to the MUA’s industry log of claims). It consisted of 119 items from the original 193 items in the MUA’s industry log and included the remaining enterprise specific claims from his email of 4 June 2009, with Mr Tracey’s comments typed in blue;
(b) indicated that the MUA expected that matters with which AMMA had indicated agreement (shaded in green) would remain agreed between the MUA and TMS;
(c) stated the MUA’s intention that all matters be dealt with at the enterprise level. It expected that AMMA would satisfy TMS in relation to information about items previously considered industry issues;
(d) sought clarification that the tracked changes in the TMS draft agreement of 2 June 2009 reflected only the industry position that had been put by AMMA in its further offer of 3 April 2009 and, ‘to be sure’, listed the various items. It continued: “If there are any changes in your ‘tracked changes’ document over and above those highlighted above could you please respond and indicate what they are’;
(e) indicated that the MUA was seeking general wage increases of 30% over 3 years;
(f) requested a meeting the following week ‘so we can continue to work through the claims’.
[19] In Mr Llewellyn’s response to Mr Tracey on 17 August 2009 11 he:
(a) stated that a number of the items that were shaded in green in the TMS log of claims had not been agreed by AMMA (with some items removed and others added to its position). Others appeared to contradict MUA evidence in the FWA proceedings;
(b) identified what TMS considered to be inconsistencies between the MUA’s industry log of claims and its TMS log of claims;
(c) indicated that TMS did not consider it acceptable to source from AMMA information on issues previously considered industry issues. It requested that the MUA provide such details;
(d) sought ‘full details of all the claims the MUA seeks to pursue against TMS’, including wage increases and claims in respect of vessel schedules;
(e) sought a detailed response to the TMS tracked changes draft agreement - for example, a MUA document which showed as further tracked changes the MUA’s proposed amendments thereto. TMS would be prepared to meet with the MUA prior to such response provided it was provided with the details of the MUA’s claims (refer to subparagraph (d));
(f) stated that TMS considered certain MUA conduct to be contrary to the good faith bargaining requirements and reserved its right to make application for a bargaining order.
[20] In respect of the ‘full details for all of the MUA claims’, the TMS letter stated:
“We set out below, by way of example, of the types of details required (the example utilises the MUA’s construction claim):
MUA’s claim |
Details required |
|
1.What is the amount in dollars that you claim is the parity with a tradesperson? 2.How does this relate to casuals and permanent employees? 3.How does this relate to various classifications within the MUA positions i.e. Steward, Cook, Chief Steward, Chief Cook, IR, IR Crane Op, CIR? 4.To what vessels does the claim relate? 5.At what time does the claim apply? 6.Is there to be an adjustment to the rate for additional/differences in leave claimed? If so, how is this to be done? 7.How do you see the claim for Norwegian Roster fitting with other crew on 4 week even time cycles on the vessels that you seek to apply the Norwegian Roster? 8.How will this apply to other vessels on the project that interact with TMS crews? 9.How is redundancy applied to permanent employees who are not made redundant? 10.Justification for the claim based on the current rates applied to such positions and/or the current relativity to other positions on the vessel. |
This is an example only - the details noted above in respect of the construction claim may not be relevant to other claims, and there may be other details that are relevant that are not captured by the above.
As we have previously advised, TMS requires sufficient details of the MUA’s claims so that we may properly consider them and, where relevant, conduct costing exercises in respect of the claims so that we may understand and consider the financial implications of the MUA’s claims on TMS business. Such information will enable meaningful discussions to work towards negotiating an enterprise agreement.”
[21] On 20 August 2009 (after an initial exchange of emails between Messrs Tracey and Llewellyn 12) Mr Tracey emailed Mr Llewellyn,13 expressing the view that Mr Llewellyn had misinterpreted much of Mr Tracey’s email of 14 August and the 22 page TMS log of claims. Rather than continue an exchange of emails, he proposed a meeting to work through the MUA’s 22 page log and TMS claims on the MUA. Certain dates were proposed.
[22] Later that day, Mr Llewellyn emailed his response to Mr Tracey, 14 reiterating TMS request that it be provided with details of the MUA claims and the MUA response to the TMS draft agreement. He queried why the MUA appeared to be seeking to delay providing the information.
[23] In his email response to Mr Llewellyn later that night, 15 Mr Tracey stated that the delay was being caused by the TMS refusal to meet to discuss the proposed agreement. He referred to the MUA requests to meet and stated that, despite these, there had been no meeting since 23 June 2009. He foreshadowed that, if TMS did not advise a date for a meeting, the MUA would seek a bargaining order.
[24] On 21 August 2009, the hearing of the MUA application for a protected action ballot order concluded. Also on that day, TMS lodged its application for bargaining orders.
[25] On 24 August 2009, the MUA lodged an application for a bargaining order that TMS meet with the MUA and negotiate in good faith.
[26] Also on 24 August 2009, Mr Llewellyn emailed Mr Tracey 16 with advice that TMS was prepared to meet once the MUA provided sufficient detail of its claims to enable TMS to cost, and therefore properly consider, the claims.
[27] On 25 August 2009, for procedural reasons the MUA withdrew its application dated 24 August 2009 and lodged a further application for a bargaining order that TMS meet with the MUA and negotiate in good faith.
[28] Also on 25 August 2009, Mr Tracey emailed Mr Llewellyn 17 in the following terms:
“There clearly needs to be a meeting to discuss the various issues raised in recent emails.
We believe we have provided you with sufficient information to cost our claims. We can discuss any further information you need at a meeting. This constant barrage of emails with claims and counter claims by you about our conduct is counter productive. Let us meet to discuss the claims and hopefully clear up any confusion you have.
As a matter of common sense we thought that even you would recognise the benefit of meeting, but as it stands, we have requested to meet on four occasions and we have not had a response. If you don’t want to meet just say so.”
[29] Later that day Mr Llewellyn emailed Mr Bray 18 in terms of the following:
“TMS is not, and has never been, opposed to meeting with the MUA. TMS is committed to progressing the bargaining process as soon as possible so that a new enterprise agreement may be made.
TMS stands by its position which has repeatedly been put to you, namely that TMS requires significant information from the MUA about its claims against TMS in respect of the proposed enterprise agreement, to enable meaningful discussions to occur between the parties. Accordingly, TMS reiterates the position put in our letter of 17 August 2009, and again requests that the MUA provides us with the information TMS has requested to date.
We propose a meeting for next Thursday 3 or Friday 4 September, either morning or afternoon - whichever suits you. We expect that the information we have requested (and continue to request) from you will be provided prior to that meeting to enable meaningful discussions to occur.”
[30] On 27 August 2009, Mr Bray emailed Mr Llewellyn 19 and proposed that the meeting occur on 4 September 2009.
[31] Later that day, Mr Llewellyn’s email to Mr Tracey and Mr Bray 20 included:
“As stated in my email of 25th August, TMS stands by its position which has repeatedly been put to you, namely that TMS requires significant information from the MUA about its claims against TMS in respect of the proposed enterprise agreement, to enable meaningful discussions to occur between the parties. As FWA has expressly recognised in a number of its decisions to date, meetings for a proposed enterprise agreement must have a real and apparent prospect for achieving an agreement between the parties. In this regard, we look forward to receiving your response to our letter of 17 August 2009, and, importantly, the information TMS has requested from the MUA to date, so that meeting between the parties may have a real and apparent prospect for achieving agreement.
On the basis that the MUA will actually provide the information on this occasion that it has undertaken to do so and to ensure that the bargaining process is not stalled or frustrated by the parties’ participation in FWA proceedings, and also in an attempt to ensure the bargaining process continues efficiently, we propose a schedule of meetings as follows:
Friday 4 September 2009 at 9.00am
Friday 11 September 2009 - time TBC
Friday 18 September 2009 - time TBC
Friday 25 September 2009 - time TBC”
[32] On 28 August 2009 Mr Tracey emailed his response to Mr Llewellyn’s letter of 17 August 2009, 21 which indicated:
(a) In respect of the TMS concerns about the matters that were shaded in green and apparent inconsistencies therein with his evidence to FWA, the MUA would clarify and discuss the issues when the parties met, to remove any misunderstanding between them on particular issues;
(b) The MUA intended to speak to all of its claims when the parties met. Those matters that have industry relevance can be resolved by reference to the industry level discussions and TMS can be informed by AMMA on those matters. If some details are missing they can be identified at the meeting and brought to the subsequent meeting;
(c) In respect of the TMS request for further details of the MUA claims, the union had previously identified the quantum of its wages claim and it sought discussion regarding a modernisation process in respect of the 10 vessel schedules. Questions about other claims in the TMS log of claims can be worked through at the meeting;
(d) In its correspondence of 14 August 2009 the MUA had listed the items that it understood were sought by TMS in its tracked changes draft agreement (being items in the expanded offer from AMMA) and requested advice of any items additional to those listed. TMS was yet to respond to the MUA request.
[33] On 31 August 2009, 22 Mr Llewellyn advised Mr Tracey, in effect, that he disagreed with most of his email of 28 August 2009. After repeating the substance of his email of 20 August 2009, Mr Llewellyn’s email outlined the following areas of concern and sought they be dealt with prior to the meeting on 4 September:
(a) What the MUA saw as the misunderstandings that TMS had with the MUA log of claims;
(b) In respect of claims that can be informed by the industry level discussions, TMS considered it unreasonable for the MUA to expect TMS to spend the resources to ascertain what claims the MUA is making against it.
(c) In the absence of further detail of the construction claim Mr Llewellyn estimated it involved an increase of 300-400%, which was fanciful and/or frivolous.
(d) Given that TMS had agreed to schedule 4 meetings over the next 4 weeks, TMS requested that the MUA withdraw its application for a bargaining order.
[34] On Tuesday 1 September 2009 the MUA withdrew its application for a bargaining order, given that the parties had agreed to a number of meetings commencing that Friday.
[35] Therefore the hearing of the TMS application for bargaining orders occurred in the context that the parties were to meet the following day and had agreed to meet weekly for a further 3 weeks.
CONSIDERATION
[36] Section 230 provides FWA with a discretion to grant an application for a bargaining order if the requirements of paragraphs 230(1)(a), (b) and (c) apply. Specifically, the application must have complied with the Act, the requirements of s.230 must be met and FWA must be satisfied that it is reasonable in all the circumstances to make the order.
[37] The requirements of s.230(3) include that FWA must be satisfied that a bargaining representative has not met or is not meeting the good faith bargaining requirements in s.228. The reference to the present is to the time of making or determining the application.
[38] Whether a bargaining representative has not met, or is not meeting the good faith bargaining requirements necessitates the application of s.228 to the conduct and performance of the representative according to the established facts, which are 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 subparagraph 230(3)(a)(i).
[39] The requirements in paragraph 230(1)(c) and s.230(3) that FWA be satisfied of prescribed matters each involve the exercise of a discretion.
[40] In applying the provisions, I will adopt ‘an even handed assessment of the industrial context, of demands, conduct, and character of the negotiators and negotiations, in which it becomes an issue’ – which is similar to the approach used by the Full Bench in Re: Media, Entertainment and Arts Alliance, 23 when applying the ‘genuinely trying to reach an agreement’ test. That decision noted a similar emphasis upon the assessment of circumstances, context, and reasonableness in decisions dealing with what it regarded as the analogous concepts of bargaining in good faith in United States industrial jurisprudence.
[41] Each requirement of the good faith bargaining requirements involves matters of degree. Therefore how stringently should the requirements be applied?
[42] 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, taking into account its context in that Act and the purpose or object underlying that Act. 24 The Explanatory Memorandum to the Fair Work Bill 2008, when dealing with what was to become s.228 of the Act, states:
“945. Division 8 sets out FWA’s role in facilitating the bargaining process. It lists the good faith bargaining requirements which bargaining representatives are required to meet when bargaining for a proposed single enterprise agreement or a multi-enterprise agreement in respect of which a low-paid authorisation is in operation.
946. It is anticipated that most bargaining representatives will bargain voluntarily and cooperatively without the need for assistance or intervention from FWA. In the occasional cases where this is not occurring, the Bill provides mechanisms for FWA to facilitate bargaining and, where necessary, make orders to ensure the integrity of the bargaining process.
947. If a representative does not meet the good faith bargaining requirements, another bargaining representative may apply to FWA for a bargaining order. …”
[43] It will be noted from the above that:
(a) the making of a bargaining order is a part of the role of FWA in facilitating the bargaining process; and
(b) the legislature anticipated that:
(i) most bargaining representatives will bargain voluntarily and cooperatively without the need for assistance or intervention from FWA;
(ii) FWA facilitation would be in the occasional cases where representatives are not bargaining voluntarily and cooperatively;
(iii) Bargaining orders to ensure the integrity of the bargaining process would be made on a ‘where necessary’ basis.
[44] Before applying each of the applicable requirements in s.228 to the conduct and performance of the MUA according to the facts outlined in paragraphs 13 to 34 above, it is necessary to consider the circumstances surrounding such conduct and performance, including the industrial context and the character of the negotiators and negotiations.
[45] Most of the conduct and performance of the parties has occurred within circumstances that include:
(a) The MUA application for a protected action ballot order. That application was filed on 31 July 2009 and the FWA hearing concluded on 21 August 2009. Much of that case involved a contest between the parties on whether or not the MUA had been and was genuinely trying to reach an agreement;
(b) The TMS taking action on 21 August 2009, to apply for bargaining orders requiring the MUA to provide further details of its claim and respond to the TMS proposal;
(c) The MUA taking action on 24 August 2009, and again on 25 August 2009, to apply for a bargaining order requiring TMS to meet with the MUA and negotiate in good faith;
(d) My decision of 1 September 2009 that I was satisfied at that time that the MUA had been, and was, genuinely trying to reach an agreement with TMS. My decision indirectly had relevance to whether the MUA was negotiating in good faith – although I made no finding on whether all or any of the requirements of s.228 had been or were being met;
(e) The proposed enterprise agreement will be a fourth generation agreement involving the parties. Each party is very familiar with the issues;
(f) Whilst negotiations are purported to be proceeding on an enterprise by enterprise basis, there are issues that involve industry level considerations;
(g) Concurrently, the MUA is negotiating with two competitors of TMS in a tight market for providers of manning;
(h) There may be disadvantages to an employer of being the first cab off the rank in a round of enterprise bargaining;
(i) There are advantages to the MUA of not being pinned down too early on specifics, when so many enterprise agreements in the industry are being negotiated;
(j) Each of the bargaining representatives is very experienced in negotiating industrial instruments and managing industrial disputes;
(k) Both of the key players, who have been the writers of most correspondence, are industrial representatives who can be described in positive terms as forces to be reckoned with in industrial relations, and who are familiar with negotiating tactics that will result in a beneficial outcome for their constituencies;
(l) More recently, TMS has been responding to a threat of protected industrial action by the MUA (if such action is authorised by the protected action ballot).
[46] Given all of the circumstance of the case, I do not consider the conduct and performance of the MUA (or TMS for that matter) as bargaining in bad faith. Rather, it could simply be a struggle (within the context of various other agendas) between:
(a) TMS wanting to consider the MUA claim as a whole, rather than responding on an item by item basis which could result in an incremental cost blow-out. It can do this by seeking further and better particulars of each of the MUA’s claims and costing each before committing itself to a whole of claim response. This can be assisted by obtaining in writing the detail needed to cost all items of the MUA’s log of claims: and
(b) the MUA wanting to keep some of its options open by being flexible in the approaches it can take with solutions to various claims and seeking to avoid requests for written detail when, as well as being resource intensive, its responses will most likely never be sufficient to satisfy TMS. This approach can be assisted by not responding to TMS claims independently of TMS responding to the MUA claims. By preferring to discuss issues the MUA can better explore options with the ‘assistance’ of TMS.
[47] The extent and nature of the correspondence that has been exchanged between the parties since they last met on 23 June 2009, gives the appearance that at least some of what has been written has been self-serving.
[48] Findings by FWA on whether good faith bargaining requirements are met, and indeed the terms of bargaining orders made by FWA, can never be a sufficient substitute for the good will between negotiating parties that is necessary to expedite enterprise bargaining in tense environments.
[49] I will now address the question of whether I am satisfied under subparagraph 230(3)((a)(i) in relation to each of the requirements in s.228(1) relied on by TMS. In doing so, I have noted that the wording of those provisions has been described as ‘generally self-explanatory’. 25
[50] In respect of paragraph 228(1)(b), on the evidence and given the surrounding circumstances, I am not satisfied that the MUA has not disclosed and is not disclosing relevant information to TMS in a timely manner.
[51] Whilst Mr Tracey probably intended that matters which were agreed at the industry level would become the basis for enterprise negotiations, AMMA’s response to the MUA’s industry log of claims lacks detail and needs to be informed by discussion. Mr Tracey’s comments in blue type should be considered in that light.
[52] Reliance only on the written correspondence between the parties may make TMS feel that the detail of the MUA’s claims is a little bit like trying to pick up a whisper in a breeze. 26 However the MUA does not rely only on such correspondence. Rather, for some time the union has been seeking a meeting with TMS without success.
[53] Notwithstanding the inconsistencies that TMS considers are contained within the revised 119 items in the MUA’s TMS log of claims, that document, when considered along with other information provided by the MUA (including its clarification of general wage increases, that it seeks a fresh approach to vessel schedules and its additional column to the construction claim table), is sufficient at this stage for the parties to meet and give consideration to the proposed agreement. Written detail to an extent similar to what TMS has sought on its construction claim (refer to paragraph 20 above) in respect of each of the 119 items seems excessive and oppressive.
[54] Speaking generally, the MUA does not need to explain why it has withdrawn certain claims, although such information may help inform negotiations.
[55] In respect of paragraph 228(1)(c), on the evidence and given the surrounding circumstances, I am not satisfied that the MUA has not responded and is not responding to proposals made by TMS in a timely manner.
[56] This assessment has not been made without doubt, as I accept that the MUA has not indicated to TMS whether it has agreed or rejected the tracked changes contained in the draft agreement which TMS forwarded on 2 June 2009. However the MUA has made several requests to meet for the purpose of discussion. Further, on 14 August 2009 the MUA provided the 22 page TMS log of claims which ‘responded to’ items in the TMS tracked changes draft agreement. Also, on 14 August 2009 and 28 August 2009 the MUA sought clarification from TMS on what was intended after listing what it understood were the matters – to which it is yet to receive a response. In the circumstances, it is probably more productive at this stage to discuss those items more generally and in concert with discussions on the MUA claims, rather than drilling into the detail of items that may not eventuate.
[57] In respect of paragraph 228(1)(d), on the evidence and given the surrounding circumstances, I am not satisfied that the MUA has not given, and is not giving, genuine consideration to the TMS proposals, and has not given or is not giving reasons for the MUA’s responses to those proposals.
[58] This item also refers to the TMS tracked changes draft agreement and therefore comments similar to those made in respect of paragraph 230(1)(c) apply. There was no evidence that the MUA has not given genuine consideration to the TMS proposals (although there was little evidence that it had) and there was no evidence that the MUA would not give this further consideration once TMS has responded to its requests. Further the MUA had indicated that it would agree to items in the MUA’s industry log of claims which AMMA had advised were agreed to by industry representatives. It can be inferred from the MUA’s various requests for meetings that it intended giving reasons for its position (including its response to the tracked changes in the TMS draft agreement) at such meetings.
[59] Under paragraph 228(1)(e), the good faith bargaining requirement is to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. The Explanatory Memorandum to the Fair Work Bill 2008 stated that such requirement:
“… is intended to cover a broad range of conduct. For example, conduct may be capricious or unfair conduct if an employer:
• fails to recognise a bargaining representative;
• does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees;
• dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or is participating in bargaining; or
• prevents an employee from appointing his or her own representative.”
[60] In respect of paragraph 228(1)(e), on the evidence and given the surrounding circumstances, I am not satisfied that the MUA has not refrained and is not refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining.
[61] I am far from satisfied that the TMS log of claims was draft by the MUA with the intention of including inconsistencies or that the union has been deliberately seeking to misrepresent AMMA’s position in order to gain some advantage.
[62] If items in the TMS log of claims were considered during the previous industry level discussions, including those that occurred during Mr Llewellyn’s absence, it is not unreasonable for TMS to seek the assistance of AMMA on those matters, rather than requiring the MUA to start from scratch.
[63] After applying the good faith bargaining requirements of s.228(1) as a whole to the conduct and performance of the MUA according to the established facts and taking into account all of the circumstances of this case, in my opinion the MUA has done enough at this stage to meet those requirements. Therefore I am not satisfied under s.230(3) and the requirements referred to in paragraph 230(1)(b) are not met.
[64] In any event, in relation to paragraph 230(1)(c), I am not satisfied that it is reasonable in all of the circumstances to make the orders sought. I consider such orders inappropriate for the purpose of promoting the efficient and fair conduct of bargaining between the MUA and TMS for the proposed enterprise agreement. As I stated in my decision of 1 September 2009, in my experience with industrial negotiations, an absence of detail at this stage of the bargaining process is not unusual. This is particularly the case in relation to the level of written detail sought by TMS in its letter of 17 August 2009 on each item. Considering that the parties have not met since 23 June 2009, my comments are still apposite to current circumstances.
[65] In the particular circumstances of this case, in my opinion each of the orders sought would require the MUA to provide a significant amount of written detail that may not be required after the parties have met and each has clarified its various claims, options and preferences. Those meetings are planned.
[66] It is often said that the devil is in the detail, and certainly this can be true of industrial negotiations. There may well come a stage in the negotiations where it is reasonable that significant detail is required of the MUA in writing. However in my view that stage has not, as yet, been reached.
[67] After considering these proceedings I am optimistic that the four planned weekly meetings between the parties will progress negotiations beyond the stand-off which appears to have developed. If I have any reservation about that being the case, it is as a consequence of the following evidence of Mr Llewellyn in relation to the meeting which was to occur between the parties on the following day:
“MR CASPERSZ: Do you know what you are going to be doing tomorrow?
---Yes, I'm going to be trying to get the information I've been asking for for the last 12 months. I mean I thought we were going to get it when we got told we were going to get a response to our letter on 17 August by no later than the close of business on Friday last week. Now, the letter we sent out on 17 August set out fairly specifically the information we wanted and all I got was a redraft of the email on the 14th.
Are you going to be in a position tomorrow to engage, from your point of view, in any meaningful sharing of information about claims?---No.
Are you in a position at the moment on behalf of the applicant to engage in any meetings and engage in a meaningful sharing of information about the claims of the respondent at all?---Not really, no.” 27
[68] As the requirements of s.230(1) do not apply, the discretion of FWA therein has not been enlivened and the application must be refused. I order accordingly.
[69] During the proceedings the MUA indicated its willingness to participate in conciliation with FWA and TMS if the Tribunal was troubled by any of the conduct of the union. 28 FWA is, of course, available to deal with applications pursuant to s.240 (Application for FWA to deal with a bargaining dispute).
COMMISSIONER
Appearances:
Mr Caperz with Ms L D’Ascanio for Total Marine Services
Mr A Slevin for the MUA
Hearing details:
2009
Perth
September 3
1 s.176(1).
2 PN447.
4 Exhibit C1, Appendix ML7.
5 Exhibit C1, para 49.
6 Exhibit C1, paras 56 & 60.
7 Exhibit C1, Appendix ML19.
8 Exhibit C1, Appendix ML20.
9 Exhibit C1, Appendix ML21.
10 Exhibit C1, Appendix ML3.
11 Exhibit C1, Appendix ML22.
12 Exhibit C1, Appendix ML23 ( Mr Tracey’s email to Mr Llewellyn dated 18 August 2009) & Exhibit C1, Appendix ML24 (Mr Llewellyn’s email to Mr Tracey dated 19 August 2009).
13 Exhibit C1, Appendix ML25.
14 Exhibit C1, Appendix ML26.
15 Exhibit C1, Appendix ML27.
16 Exhibit C1, Appendix ML29.
17 Exhibit C1, Appendix ML30.
18 Exhibit C1, Appendix ML31.
19 Exhibit C1, Appendix ML32.
20 Exhibit C1, Appendix ML33.
21 Exhibit C1, Appendix ML34.
22 Exhibit C1, Appendix ML35.
23 PR928033, 11 March 2003, per Munro J, Leary DP and O’Connor C, at para 46.
24 Paragraph 15AB(1) 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.
25 Explanatory Memorandum to the Fair Work Bill 2008, para 951.
26 PN653.
27 PN298-PN300.
28 PN644-PN645.
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