1
Fair Work Act 2009
s.437—Protected action
Maritime Union of Australia, The
v
Mermaid Marine Vessel Operations Pty Ltd
(B2013/1582)
COMMISSIONER WILLIAMS PERTH, 3 JANUARY 2014
Proposed protected action ballot by employees of Mermaid Marine Vessel Operations Pty
Ltd.
[1] This decision concerns an application made by The Maritime Union of Australia (the
MUA or the applicant) under section 437 of the Fair Work Act 2009 (the Act) for a protected
action ballot order. The respondent is a Mermaid Marine Vessels Operations Pty Ltd
(Mermaid or the respondent).
[2] Mermaid oppose the Commission making the ballot order on the grounds that the
application cannot be made because of the terms of section 438 of the Act and the particular
circumstances of this case.
Background
[3] Evidence for the applicant was given by Mr William Tracey (Mr Tracey) the Assistant
Branch Secretary of the Western Australian branch of the MUA. His evidence is
uncontroversial and was not challenged by the respondent.
[4] Relevantly the evidence is that the MUA as a bargaining representative is seeking an
enterprise agreement for cooks, caterers, integrated ratings and seafarers employed by
Mermaid on offshore oil and gas operations where Mermaid supplies labour.
[5] The employment of this group of employees is currently regulated by the Mermaid
Marine Vessel Operations Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers
(Offshore Oil and Gas) Enterprise Agreement 2010 [AE879860] (the 2010 Agreement). The
nominal expiry date of the 2010 Agreement is 30 July 2013 and the 2010 Agreement has not
been terminated.
[6] There is another agreement, the Mermaid Marine Vessel Operations Pty Ltd
Integrated Ratings, Cooks, Caterers and Seafarers Gorgon Enterprise Agreement 2011
[AE890968] (the 2011 Gorgon Agreement) which covers a subgroup of the employees who
otherwise would be covered by the 2010 Agreement who are performing offshore work under
[2014] FWC 8 [Note: An appeal pursuant to s.604 (C2014/2788) was
lodged against this decision - refer to Full Bench decision dated 7 March
2014 [[2014] FWCFB 1317] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB1317.htm
[2014] FWC 8
2
the Gorgon contract as this is defined in clause 2−Definitions of the 2011 Gorgon Agreement.
The nominal expiry date of the 2011 Gorgon Agreement is 15 January 2016.
[7] The evidence demonstrates that there has been a lengthy history of bargaining between
the MUA and Mermaid. Bargaining commenced in December 2012 and there have been
approximately 10 bargaining meetings held with the MUA officials and representatives of
Mermaid.
[8] In addition to these meetings between the MUA and Mermaid, there have been 18
industry level bargaining meetings facilitated by Commissioner Cloghan. At these industry
meetings Mermaid has been represented by their Human Resource Manager and by the
Australian Mines and Metals Association (AMMA) which is also representing the other
industry employers. These industry bargaining meetings span the period from late August
2013 to early December 2013.
[9] On 1 November 2013 on behalf of Mermaid and the other industry employers AMMA
provided the MUA with a draft proposed agreement.
[10] On 22 November 2013 Commissioner Cloghan held a hearing dealing with application
B2013/1496. Through the course of the proceedings the MUA opted to withdraw that
application for a protected action ballot order in part because Mermaid had objected on the
ground that there was an enterprise agreement that covered employees that the proposed
agreement sought to cover, that being the 2011 Gorgon Agreement,1 which had not reached
its nominal expiry date.
[11] Consequently on 25 November 2013 the MUA wrote to Mermaid’s representatives
advising that it was their claim that the work covered by the 2011 Gorgon Agreement should
be excluded from the scope of the agreement being negotiated2.
[12] The response from AMMA on behalf of the vessel operators including Mermaid was
that the change in the scope of the agreement claimed by the MUA was in their view not
consistent with good faith bargaining and indicative that the MUA was not genuinely trying to
reach agreement3.
[13] In response the MUA further explained that the MUA’s changed position on scope of
any agreement simply reflected the legal position identified in the previous ballot order
application and the change was proposed as a logical solution consistent with the relationship
between the 2010 Agreement and the 2011 Gorgon Agreement.
[14] I note that in the proceedings of this matter Mermaid does not argue that the MUA has
not been or is not now genuinely trying to reach agreement.
[15] The Form F34−Application for a Protected Action Ballot Order in this matter
identifies the employees to be balloted as follows:
“3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED
In accordance with s.437(5) of the Act, the employees to be balloted are all employees
of Mermaid Marine Vessel Operations Pty Ltd to whom the Mermaid Marine Vessel
Operations Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil
[2014] FWC 8
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and Gas) Enterprise Agreement 2010 [AE879860] applies and who are members of
the Union, with the exception of those employees to whom the Mermaid Marine Vessel
Operations Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers Gorgon
Enterprise Agreement 2011 [AE890968] applies.”
The legislation
[16] The relevant sections of the Act are set out below:
“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 the FWC 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) a greenfields agreement; or
(b) a multi-enterprise agreement.
Matters to be specified in application
(3) The application must specify:
(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.
(4) If the applicant wishes a person other than the Australian Electoral Commission to
be the protected action ballot agent for the protected action ballot, the application
must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission
unless the FWC specifies another person in the protected action ballot order as the
protected action ballot agent (see subsection 443(4)).
(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) either:
[2014] FWC 8
4
(i) are represented by a bargaining representative who is an applicant
for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of
an employee organisation that is an applicant for the protected action
ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information
prescribed by the regulations.”
“438 Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered by
the proposed enterprise agreement, an application for a protected action ballot order
must not be made earlier than 30 days before the nominal expiry date of the enterprise
agreement, or the latest nominal expiry date of those enterprise agreements (as the
case may be).
(2) To avoid doubt, making an application for a protected action ballot order does not
constitute organising industrial action.”
Submissions
[17] The respondent submits that by virtue of section 438 of the Act this application cannot
be made in the particular circumstances of this matter.
[18] It is submitted that the 2011 Gorgon Agreement which has a number of years before
its nominal expiry date is reached covers some of the employees who will be covered by the
proposed enterprise agreement and consequently this application cannot yet be made.
[19] It is not disputed that the 2011 Gorgon Agreement is within term. The central issue to
be determined by the Commission is whether the 2011 Gorgon Agreement covers employees
who will be covered by the proposed enterprise agreement.
[20] Importantly the parties have competing positions as to whom the employees are who
will be covered by the proposed enterprise agreement.
[21] The applicant says the employees who will be covered by the proposed enterprise
agreement are those employees who they seek to be balloted. These employees are all
employees of Mermaid Marine Vessel Operations Pty Ltd to whom the 2010 Agreement
applies and who are members of the Union, with the exception of those employees to whom
the 2011 Gorgon Agreement applies (the MUA’s preferred scope).
[22] The respondent say the employees who will be covered by the proposed enterprise
agreement are those employees covered by the 2010 Agreement including those employees
covered by the 2011 Gorgon Agreement (Mermaid’s preferred scope)4.
[2014] FWC 8
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[23] The MUA submit that the scope of a proposed enterprise agreement can be subject to
bargaining and that it is for them, the applicant, to decide which employees will be covered by
a proposed enterprise agreement (its scope) and so who are the group of employees to be
balloted. In the particular circumstances of this case the MUA submit that there is nothing to
stop them from claiming a different scope for a proposed enterprise agreement. Indeed this is
what has occurred in this case and they have put their claim for a revised scope to Mermaid
and they are now seeking a ballot of employees for a proposed enterprise agreement that
would have this scope.
[24] The respondent argues that section 438 of the Act prohibits making this application
because some of the employees to be covered by the proposed enterprise agreement are
covered by an enterprise agreement that has not reached its normal expiry date.
[25] The respondent is of the view that the employees who will be covered by the proposed
enterprise agreement are currently covered by more than one enterprise agreement.
[26] The two agreements, the 2010 Agreement and the 2011 Gorgon Agreement, currently
cover employees of Mermaid who will be covered by the proposed enterprise agreement.
Whilst the 2010 Agreement has a normal expiry date of 31 July 2013, the 2011 Gorgon
Agreement has a normal expiry date of 15 January 2016 and so is still in term.
[27] It is submitted that the coverage of the 2010 Agreement encompasses those employees
covered by the 2011 Gorgon Agreement but by virtue of the terms of the 2011 Gorgon
Agreement, the 2010 Agreement does not apply to those employees.
[28] The respondent argues that since bargaining commenced in December 2012 and up
until the time of these proceedings it has always been the position of Mermaid that the
proposed enterprise agreement would cover Mermaid and their employees employed in
maritime offshore oil and gas industry in any of the classifications contained within the
proposed enterprise agreement and as such the proposed enterprise agreement would cover
employees who are currently covered by both the 2010 Agreement and the 2011 Gorgon
Agreement with no distinction between the two.
[29] The respondent points out the bargaining commenced on this basis and it is only since
25 November 2013 that the MUA has purported to place the scope of the proposed enterprise
agreement in dispute by seeking to exclude those employees covered by the 2011 Gorgon
Agreement from the coverage of the proposed enterprise agreement.
[30] The respondent agrees that the scope of the proposed enterprise agreement can
properly be the subject for bargaining however it submits that the MUA cannot now
unilaterally change the group of employees it represents and the coverage of the proposed
enterprise agreement to which the parties have together been negotiating for approximately 12
months by merely presenting a claim during negotiations.
[31] The respondent submits that if the MUA wants to change the scope of the proposed
enterprise agreement it should seek a scope order under section 238 of the Act.
[32] In summary because the proposed enterprise agreement will, the respondent says,
cover employees who are currently covered by an in term agreement no application for a
[2014] FWC 8
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protected action ballot can be made for any of the employees who will be covered by the
proposed enterprise agreement. Consequently this application must be dismissed.
Consideration
[33] There have been a number of decisions of the Commission that have considered
disputes about the scope of proposed enterprise agreements.
[34] A Full Bench of the Commission in MSS Security Pty Ltd v Liquor, Hospitality and
Miscellaneous Union [[2010] FWAFB 6519] (the MSS Security case) considered the
expression “ proposed enterprise agreement” and said:
“[8] The Fair Work Act 2009 (FW Act) uses the expression “proposed enterprise
agreement”, “proposed single-enterprise agreement” and “proposed agreement” in a
number of places. An agreement may be “proposed” by an employer or it may be
“proposed” by a bargaining representative of employees or there may be different and
competing agreements “proposed” by both. Where a person makes an application
under the FW Act in their capacity as a bargaining representative for a “proposed
enterprise agreement” or “proposed single enterprise agreement”, the bargaining
representative is entitled to rely on the agreement it has proposed or it may choose to
make the application in relation to an agreement proposed by another bargaining
representative. In this case, it was the LHMU that first “proposed” an agreement and
it was the agreement proposed by the LHMU that was the “proposed single enterprise
agreement” for purposes of the LHMU’s application for a protected action ballot
order under s.437.” (Underlining added)
[35] Applying this approach then the MUA has made an application in their capacity as a
bargaining representative for a proposed enterprise agreement and as such they are entitled to
rely on the agreement they have proposed which in this case means a proposed enterprise
agreement with the MUA’s preferred scope, which excludes from its coverage employees
covered by the 2011 Gorgon Agreement. The MUA have previously notified Mermaid and
AMMA of the MUA’s preferred scope and this is indeed recorded in the most recent version
of the AMMA draft agreement5.
[36] The fact that throughout the process of bargaining from late 2012 until November
2013 the MUA had agreed with the respondent as to the scope of the proposed enterprise
agreement does not alter their right to now make a ballot order application for a proposed
enterprise agreement with the MUA’s preferred scope.
[37] The respondent and the applicant both accept that the scope of a proposed agreement
is a matter that can itself be the subject of bargaining. The authorities are clear on this point.
As the Full Bench in the MSS Security case observed:
“[14] In Stuartholme School v The Corporation of the Trustees of the Roman Catholic
Archdiocese of Brisbane (Stuartholme) a Full Bench of Fair Work Australia held that
the scope of a proposed agreement is a matter than can itself be the subject of
bargaining for the agreement. We respectfully endorse the reasoning and conclusion
of the Full Bench in that regard.” (References omitted)
[2014] FWC 8
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[38] The Full Bench in the MSS Security case also considered the situation of the parties
where they were in dispute over the scope of the proposed agreement and observed that:
“[18] ...Where there is a continuing disagreement between the bargaining parties as to
the scope of the proposed enterprise agreement, the remedy for the party who wants a
narrower scope is to seek a scope order pursuant to s.238. In the absence of such an
order, bargaining will proceed on the basis of the Respondents preferred scope, save
that the parties are entitled to continue bargaining over the scope itself until such time
as the scope of the proposed agreement is settled through bargaining or by the making
of a scope order.” (Underlining added)
[39] Obviously pursuing a section 238 scope order is one option open to a bargaining party
as a means of resolving a dispute about a proposed agreements scope. In my view though the
first sentence of this statement from the Full Bench is not to be taken as authority for the
proposition that the bargaining party who wants the narrower scope, where this is disputed, is
obliged to seek a scope order under section 238 of the Act. This is in effect what the
respondent has submitted is the correct approach for the MUA in this case.
[40] Rather the Full Bench was merely pointing to the fact that applying for a section 238
scope order is a remedy available. The benefit to such a party of a section 238 scope order
application is that potentially one party’s view of the preferred scope for a proposed enterprise
agreement will be imposed on the other bargaining party by virtue of a Commission order.
However the Full Bench went on to note that in the absence of a scope order the parties are
entitled to continue bargaining over the scope until that is settled through bargaining or by the
making of a scope order.
[41] The employee bargaining representative in this matter as part of seeking to resolve the
dispute over the scope of the proposed agreement and other disputed matters has opted to
apply for a ballot order to test whether the employees they wish to be covered by the proposed
agreement support potentially taking industrial action to influence Mermaid to accept their
claims. Within the scheme of the Act such a ballot order application is part of that process of
bargaining.
[42] The parties are in dispute about the scope of the proposed agreement and a range of
other elements of the proposed agreement. The MUA could have chosen to make application
for a scope order to resolve that matter. The MUA is equally entitled to try to resolve this
disputed claim in the same way it may for any other claim which is not agreed, by further
bargaining. As part of that bargaining the MUA may apply for a ballot order. In such an
application they are entitled to rely upon the proposed enterprise agreement they have asked
Mermaid to agree to, which in this case is an agreement which would have the MUA’s
preferred scope.
[43] In this application the employees who will be covered by the proposed enterprise
agreement are those who fall within the MUA’s preferred scope. The MUA’s preferred scope
excludes employees covered by the 2011 Gorgon Agreement. As such section 438 of the Act
is not applicable in this instance. My decision is to dismiss the jurisdictional objection of the
respondent.
[2014] FWC 8
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The ballot order
[44] I am satisfied that an application has been properly made under section 437 of the Act
and the notice of application required by section 440 of the Act has been provided. The
respondent does not dispute and the evidence does demonstrate to my satisfaction that the
MUA has been, and is, generally trying to reach an agreement with Mermaid. I am satisfied
that all the requirements of the Act have been met and as required by section 443 I must now
make a protected action ballot order in relation to the proposed enterprise agreement.
[45] The parties have agreed that an extended period of notice for industrial action will
apply. Accordingly the period of written notice referred to at section 414(2) of the Act is
extended to six (6) days (inclusive of Saturdays, Sundays and public holidays).
COMMISSIONER
Appearances:
E. Palmer on behalf of the applicant.
A. Power of Counsel for the respondent.
Hearing details:
2013.
Perth:
December 23.
Printed by authority of the Commonwealth Government Printer
Price code C, PR546371
1 (B2013/496) Transcript at PN322 to PN329 and PN347.
2 Exhibit A1, Attachment WT5.
3 Ibid., Attachment WT6.
4 Respondent’s outline of submissions at paragraphs [10] and [11].
5 Exhibit A1, tracked changes MU0A31 in the margin of clause 4 Coverage in Attachment WT15.
