A union’s strategic choice to switch the scope of its proposed enterprise agreement (EA) so as to avoid protected industrial action restrictions does not mean it is not genuinely trying to reach agreement, according to a Fair Work Commission (FWC) full bench. The bench – Deputy Presidents Val Gostencnik and John Kovacic and Commissioner Danny Cloghan – found such a decision was not a bar to the Maritime Union of Australia’s (MUA) protected action ballot order (PABO) for workers at vessel operator Swire Pacific Ship Management in Western Australia’s offshore oil and gas industry. The PABO is the second one granted to the MUA in the vessel operator negotiations, which involve 21 employers. It follows the same full bench granting a PABO for Mermaid Marine workers after also finding the MUA’s scope change did not mean it was not genuinely trying to reach agreement (WF19065).
During the Swire hearing, MUA assistant secretary Will Tracey was open that the union had sought a narrower EA scope to keep alive its protected action options. Under the MUA’s previously proposed scope, pushed since late 2012, Swire employees could not take protected action because some of them were also covered under a second agreement designed for Gorgon project work and which did not expire until July 31, 2014. From November 2013, the MUA sought a new EA that excluded those workers covered by the Gorgon EA.
Swire, with the Australian Mines and Metals Association intervening, argued the union’s change of scope was “simply a ruse” to enable it to take protected action to press its original claim for an EA with a broader scope.
The bench said if the union was using the PABO to press its original scope claim that would raise “serious questions” about its “motive, purpose and genuineness”. But it found no evidence the union was pursuing a broader scope agreement, and Tracey had expressly rejected such a proposition. The bench acknowledged that some “anomalies” in MUA correspondence supported Swire’s submission that the new scope position was merely an attempt to avoid s438(1) of the Act. The section prevents employees covered by two or more agreements from applying for a PABO until 30 days before the latest expiry date of those agreements. However, the bench said it could not identify any Fair Work Act provision that expressly precluded switching scope for that reason.
Change of position was part of dynamics of bargaining
“In and of itself, a bargaining representative making a particular strategic choice which is permissible under the bargaining scheme established by the Act, is not a basis on which to conclude that the bargaining representative is not genuinely trying to reach an agreement or that the bargaining representative has some extraneous intent or purpose,” it said. “That the MUA seeks to avoid particular consequences which would deprive it of pursuing a lawful and legitimate right, by altering its position on scope, without probative evidence that doing so is to enable the MUA to further its original position on scope, is not a sound basis for concluding that the bargaining representative is not genuinely trying to reach an agreement.”
It said the MUA’s change of position on scope was “reflective of the dynamics of bargaining”.
The bench issued a PABO order but changed the wording to more clearly identify the employee group excluded from the MUA’s proposed EA. As a “postscript”, it warned the MUA’s obligation to genuinely try to reach an agreement with Swire did not end with the PABO. It was also a condition for organising and taking protected industrial action. “[A]ny industrial action which is subsequently organised by the MUA and taken by relevant Swire employees will only likely be protected if, inter alia, the MUA continues to genuinely try to reach an agreement (the MUA Proposed Replacement Agreement) with Swire,” it said.
NERR does not determine scope
The bench (above) rejected Swire’s other grounds of appeal, referring to its reasons given in Mermaid Marine. In particular, it laid down its findings regarding notice of employee representational rights (NERR):
- A NERR did not determine the “proposed EA”.
- Where a proposed EA’s scope was in dispute at notification time, the NERR should be given to employees within the broader EA scope.
- The NERR did not determine the identity of the bargaining representatives for the proposed EA, and did not “set in stone” the persons who will be covered by the proposed EA, or its scope.
On s438, it agreed with the MUA that questions of overlapping EA covereage should be determined by reference to the coverage of the proposed EA at the time, not some possible future coverage.
(Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd , FWCFB 2587, 16/04/2014)
(Workforce 19115, 17 April, 2014)