[2014] FWC 8130

The attached document replaces the document previously issued with the above code on 17 November 2014.

Appearances updated.

Associate to Commissioner Johns

Dated 21 November 2014

Fair Work Act 2009
s.418—Industrial action

Farstad Shipping (Indian Pacific) Pty Ltd
v
Maritime Union of Australia, The
(C2014/7708)

Proposed protected action ballot by employees of Farstad Shipping (Indian Pacific) Pty Ltd, Notice requirements, ambiguity, allegation of pattern bargaining, whether genuinely trying to reach agreement

[1] This decision arises out of an application by Farstad Shipping (Indian Pacific) Pty Ltd (Farstad) for orders under s.418 of the Fair Work Act 2009 (FW Act) that threatened, impending or probable industrial action not occur. The application seeks an Order against the Maritime Union of Australia (MUA) and members of the MUA who are employees of Farstad.

[2] An Interim Order [PR557752] under s.420 of the FW Act was issued in this matter following initial proceedings held on the evening of Thursday, 13 November 2014. Those proceedings were confined to whether it would be contrary to the public interest to issue an interim order. For the reasons set out in the transcript of the preliminary hearing, the Commission, as presently constituted, determined that it was not contrary to the public interest to issue the Interim Order and issued the same.

[3] The substantive hearing of this matter was held in Sydney on Sunday, 16 November 2014. It was conducted via Video-Link to Melbourne and Perth. At this hearing Mr F Perry, of Queen’s Counsel, appeared for Farstad, and Mr S Moore, of counsel, appeared on behalf of the Maritime Union of Australia. Permission to be represented was granted to both parties at the earlier hearing on 13 November 2014 because the Fair Work Commission, as presently constituted, was satisfied that the matter was invested with sufficient complexity that it would be assisted in efficient conduct of the matter if permission was granted pursuant to s.596(2)(a) of the FW Act.

[4] The threatened, impending or probable industrial action that is the subject of the application relates to “stoppages of all work for 24 hours” planned to occur on 15, 16, 17 and 18 November 2014. By reason of the Interim Order, the programming of the hearing on 16 November 2014 and the date of this decision only the planned stoppage on 18 November 2014 remains a live issue.

Background

[5] The employment of Farstad employees (relevant to this application) is presently covered by the Farstad Shipping (Indian Pacific) Pty Ltd Integrated ratings, Cooks, Caterers and Seafarers Agreement (Offshore Oil and Gas) Enterprise Agreement 2010 (Current Agreement). The Current Agreement passed its nominal expiry date on 31 July 2013.

[6] In an earlier decision 1 relating to the MUA’s application for a protected action ballot order (PABO) the Commission set out the history of the bargaining between the parties as follows:

[9] The uncontested evidence is that:

a) On 7 February 2013 there was a preliminary meeting between Farstad and the MUA to discuss the business context in which an enterprise agreement to replace the [Current Agreement];

b) On 21 February 2013 Farstad formally commenced bargaining by issuing a Notice of Employee Representational Rights;

c) Negotiations commenced on 13 March 2013;

d) There were further meetings (24 in total) in May 2013, June 2013, July 2013, August 2013, September 2013, October 2013, January 2014, February 2014 and March 2014;

e) In April 2014 Farstad made application to the Commission for assistance in relation to the bargaining dispute under section 240 of the FW Act; and

f) By the time of the PABO hearing the Commission had facilitated meetings (5 in total) between the MUA and Farstad in May and June 2014.

[7] On 4 July 2014 the MUA made a PABO application pursuant to s.437 of the FW Act.

[8] On 1 September 2014 the Commission, as presently constituted, issued a PABO. 2 A ballot was subsequently conducted and industrial action authorised in accordance with the FW Act. The ballot was declared on 31 October 2014.

[9] Notwithstanding the issuing of the PABO, the authorisation of industrial action and the declaration of the ballot, discussions between the parties continued. It is common ground between the parties that there were meetings and further correspondence passing between them in September, October and November 2014. 3 The last meeting occurred on 5 November 2014.

[10] At 16.17 on 5 November 2014 the MUA served formal notice of intention to take Employee Claim Action (Exhibit PB16 and also Exhibit “F1”) or protected industrial action (PIA Notice). The PIA Notice provided that,

Pursuant to s.414(2) of the Fair Work Act 2009, I advise that all members of the Maritime Union of Australia (“the MUA”) employed by Farstad Shipping (Indian Pacific) Pty Ltd and to whom the Farstad Shipping (Indian Pacific) Pty Ltd Integrated ratings, Cooks, Caterers and Seafarers Agreement (Offshore Oil and Gas) Enterprise Agreement 2010 applies shall:

• Engage in a stoppage of all work for 24 hours commencing on 15 November 2014 at 4.00 am;
• Engage in a stoppage of all work for 24 hours commencing on 16 November 2014 at 4.00 am;
• Engage in a stoppage of all work for 24 hours commencing on 17 November 2014 at 4.00 am;
• Engage in a stoppage of all work for 24 hours commencing on 18 November 2014 at 4.00 am.

I confirm that these stoppages of all work will be subject to the following exempted duties with will continue to be preformed.

• Watch keeping at sea
• Fire rounds
• Port Security watches
• Safety drills
• Provision of meals and mess room services
• Movement of perishable stores
• All dealings with emergency equipment in any manner
• Any and all safety and emergency related issues [(the “Eighth Exemption”)]

[(collectively the “Exempt Duties”)]

The Employee Claim Action of which you are being notified is being taken for the purpose of supporting or advancing claims made in respect of the proposed Enterprise Agreement.

[11] On Friday, 7 November 2014 Farstad’s Peter Barrow had a discussion with the MUA’s Dave Cushion about the PIA Notice.

[12] On Monday, 10 November 2014 Farstad wrote to the MUA to confirm the exempted duties. Farstad complained that the Exempt Duties “are so broad that Farstad cannot be certain about precisely what duties will be performed.” Farstad demanded certain undertakings. Farstad put the MUA on notice that “if such commitment is not forthcoming, then please be aware that Farstad will take whatever steps necessary to ensure that this issue is resolved…”

[13] At 19.12 on Tuesday, 11 November 2014 the MUA responded. It made some concessions, but not all of those necessary to satisfy Farstad. That precipitated the present application being made by Farstad on Wednesday, 12 November 2014.

[14] By the time of the substantive hearing all of the matters in respect of which Farstad sought undertakings had been addressed except the Eighth Exemption.

Issues to be determined

[15] At the commencement of the substantive hearing the Commission, as presently constituted, confirmed with the parties’ advocates that the issues to be determined were as follows:

a) Does the PIA Notice comply with s.414 of the FW Act having regard to the Eighth Exemption concerning “Any and all safety and emergency related issues”? (the Notice Issue)

b) Is the MUA engaging in pattern bargaining? (the Pattern Bargaining Issue);

c) If, at first appearance, the MUA is engaging pattern bargaining is it otherwise genuinely trying to reach an agreement with Farstad (the Genuine Trying Issue).

[16] Each of these issues will now be dealt with in turn.

Authorities

[17] In the course of the hearing and in the written submissions the Commission was referred to the following authorities:

a) Davids Distribution Pty Ltd v NUW (1999) (Davids Distribution); 4

b) CFMEU v Yallourn Energy Pty Ltd (2000) (CFMEU); 5

c) Woodside Petroleum (WA) Pty Ltd v AIMPE (2005) (Woodside); 6

d) Australian Nursing Federation v Trinity Garden Aged Care (2006) (Trinity Garden); 7

e) Telstra Corporation Limited v CEPU (2009) (Telstra); 8

f) Alcoa of Australia v AWU (2010) (Alcoa); 9

g) CEPU v Pinnacle Career Development Pty Ltd (2010) (Pinnacle); 10

h) Energy Australia Yallourn Pty Ltd v CFMEU (2013) (EA Yallourn); 11

i) NTEIU v Monash University (2013) (NTEIU); 12

j) Tidewater Marine Australia Pty Ltd v MUA (2014) (Tidewater); 13 and

k) MUA v Farstad (PABO decision). 14

[18] The Commission, as presently constituted, has had regard to each of the authorities in coming to its decision.

Evidence

[19] Witness evidence was received from:

a) Peter Barrow, Farstad’s General Manager of Human Resources;

b) Jason McLean, one of Farstad’s Operations Managers;

c) Simon White, Principal Employee Relations Consultant with the Australian Mines and Metals Association Inc.

d) Werner Cohrs, a Chief Integrated Rating employed by Farstad; and

e) Will Tracey, the MUA’s Assistant Branch Secretary (WA Branch).

[20] The Commission, as presently constituted has taken into account all of the evidence of those witnesses incoming to its decision.

The Notice Issue

[21] Section 414 of the FW Act provides:

414 Notice requirements for industrial action

Notice requirements—employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

Notice requirements—employee response action

(4) Before a person engages in employee response action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

Notice requirements—employer response action

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

Notice requirements—content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

[22] Farstad does not take issue the first part of the PIA Notice which sets out the stoppages that MUA members “shall engage in”. Nor does it take issue with the first seven exemptions. Its attack on the PIA Notice is centred on the Eighth Exemption. Farstad submits it does not meet the requirements of the FW Act, in particular s.414(6) of the FW Act in that it “lacks particularisation and definition.” Further, it says “in the context of Farstad’s maritime operations in the oil and gas industry, it does not know, and cannot know, the manner in which, and the scope of, duties that are exempted from the stoppage of all work.” 15 In particular the evidence of Mr McLean went to this point.

[23] If Farstad is correct in its submission that the PIA Notice is defective by reason of its ambiguity then it follows that:

a) Notice was not given as required by the FW Act;
b) Any threatened industrial action is not protected;
c) Immunity from legal liability will not be enjoyed in respect of the threatened industrial action; and
d) An order under s.418 of the FW Act can be issued in respect of the threatened industrial action.

[24] The MUA says that the PIA Notice does conform with the established principles applying to the construction of notices under s.414(6) of the FW Act. The MUA submits that:

a) the PIA Notice properly specifies what industrial action will be taken;
b) a complaint about the PIA Notice not specifying what industrial action will not be taken is a misdirection of the requirements of s.414(6);
c) in any case, the Eighth Exemption is clear because it refers to “Any and all…” issues related to safety and emergencies; and
d) having regard to “practically applied circumstances of the workplace” it is understood that the Master of a ship identifies safety and emergency issues as they arise and crew are obliged to respond as directed. 16

[25] Evidence about the general protocol on a vessel which sees the Master determine and give direction about emergency and safety issues was given by Mr Cohrs. 17 He also gave uncontested evidence that,

“In all my time as a seafarer, I have not experienced a situation where the Ratings have refused to do everything necessary to address a situation identified as an emergency or a safety-related issue by a Master.

In fact, during the previous industrial dispute with Farstad in around 2009, I recall that the Ratings continued to complete all safety rounds and safety drills at the direction of the Master.” 18

[26] In cross-examination Mr McLean conceded that the Master could make the direction (in relation to safety and emergency issues) and the Ratings would comply. His evidence on this point squarely accorded with Mr Cohrs’ evidence-in-chief.

[27] Having regard to its submissions and the evidence it intended to lead at the beginning of the substantive hearing and at the invitation of the Commission the MUA gave an undertaking such that the Eighth Exemption would effectively read as follows,

“Any and all safety and emergency related issues as determined and directed by the Master consistent with established understanding and practice.”

[28] Farstad rejected the notion that the undertaking could cure any defect in the PIA Notice and pressed its objection to the validity of the PIA Notice.

Principles relevant to s.414 Notices

[29] The following summary of principles can be extracted from the relevant authorities:

a) Davids Distribution (in relation to a notice given under the predecessor provision in s.170MO(5) of the Workplace Relations Act 1996 (WR Act)):

i. the notice requires more than an indication of industrial action;
ii. the notice does not require precise details of every future act or omission;
iii. the notice does not require specificity about exactly what steps (industrial action) will be taken;
iv. legalism in the requirements of a notice is to be resisted;
v. the subject of the industrial action should (by reason of the notice) be able to take appropriate defensive action;
vi. it is sufficient to describe the intended action in ordinary industrial English. 19

b) CFMEU (also in relation to a notice given under the predecessor provision in s.170MO(5) of the WR Act):

i. the approach in Davids Distribution is the correct approach;
ii. the nature of proposed action needs to be accurate;
iii. it is critical that the particularity be sufficient to enable the parties to be aware of the nature of the intended action; 20
iv. the issue of clarity in a notice is a question of degree;
v. no premium should be placed on legalism. 21

c) Woodside (in respect of an interlocutory hearing where there was found to be a serious issue to be tried in relation to the notice):

i. safety issues of their very nature raise issues of great seriousness;
ii. ambiguities in terms of responsibilities in relation to the conduct of matters pertaining to safety, raise a serious issue.

d) Telstra:

i. the approach in Davids Distribution remains the correct approach;
ii. in considering whether the notice meets the statutory requirements, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking;
iii. there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations;
iv. whether a notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking industrial action. 22

e) Alcoa:

i. notices need not state when the industrial action is to commence and end;
ii. it is enough that the duration of the stoppage is stated;
iii. requiring more particularity supplants the role of the legislature in prescribing industrial behaviour;
iv. the notice requirements should be construed with an understanding that under the FW Act the union and its members have right to engage in protected industrial action. 23

f) Pinnacle:

i. the adequacy of a notice must be examined in context;
ii. the adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act or respond in a particular way. 24

g) EA Yallourn:

i. the approach in Davids Distribution remains the correct approach (i.e. it is not necessary for the notice to contain precise details of when and how every future act or omission will or may occur); 25
ii. balancing the level of specificity required so that the employer make take defensive action against the right of employees to take protected industrial action in the context of bargaining for an agreement is not erroneous. 26

h) Tidewater (where the Notice was inconsistent with the PABO by failing to refer to the Exempt Duties (unlike in the present matter)):

i. the approach in Davids Distribution remains the correct approach;
ii. it is a practical question whether it can be said on viewing the Notice that the action is identified with sufficient practical content so as to achieve its statutory purpose;
iii. an overly legalistic approach should not be adopted (noting that notices are frequently not drawn up by lawyers);
iv. the cases give a good flavour of the statutory purpose of the Notice and the degree of flexibility which will be appropriate in the circumstances and context;
v. it must be the Notice itself which is examined, not surrounding circumstances after the event;
vi. there is force in the submission that there is no requirement, no logic in specifying employment actions that will be performed (the FW Act requiring notice of what will not be performed);
vii. the failure to list the Exempt Duties was fatal to the Notice.

[30] In this regard the facts in Tidewater can be clearly distinguished from the facts in the present matter. The very same Exempt Duties contained in the PIA Notice issued to Farstad were left out of the Notice given to Tidewater. The case turned on this point. No argument was run that had the Exempt Duties been included in the Notice given to Tidewater that the notice would have been ambiguous. No attack was made on the Eighth Exemption (which was in the same terms in both the Tidewater and Farstad PABOs). The applicant was successful in Tidewater because the Eighth Exemption did not appear at all in the Notice. It does appear in the PIA Notice served on Farstad. The decision in Tidewater is of no assistance to Farstad save that it stands for the proposition that post notice conduct cannot cure defects in a Notice.

Conclusion re the Notice Issue

[31] Having regard to the authorities and the evidence in this matter the Commission, as presently constituted, finds no defect and no ambiguity in the PIA Notice. Having regard to the evidence of Mr Cohrs and Mr McLean it seems obvious that a rational reader of the PIA Notice would know that the Eighth Exemption includes all safety and emergency issues determined by the Master.

[32] Properly understood in the context of what occurs on a ship on a day-to-day basis the PIA Notice had the effect of conveying exactly what the MUA was prepared to state by way of undertaking to the Commission. While it might have been preferable for PIA Notice to be expressed in the same terms as the undertaking ultimately given, the fact that it was not, is not fatal to the PIA Notice.

[33] In the present matter the Commission finds that there is no ambiguity in the PIA Notice because it specifies the nature of the action and the day on which it will start and as such the PIA Notice complies with s.414(6) of the FW Act. The approach to be taken that was urged upon the Commission by Farstad was too legalistic and ignored the practical applied circumstances on Farstad’s vessels. It is an approach that is to be rejected.

[34] Likely what this will conclusion will mean is that Farstad will now be caused a degree of inconvenience and expense by reason of the protected industrial action. However, as regrettable as that is, it is not a relevant consideration. As Barker J observed in Alco “the fact that [an employer] may suffer loss of profits and its operation and staff may be inconvenienced is no reason of itself to fine that a notice should [be] as specific as the [employer in this case would like it to be.” 27

The Pattern Bargaining Issue

[35] Farstad also alleges that the MUA is engaging in Pattern Bargaining. In particular it points to the MUA pursuing, against both Farstad and the other operators who are a part of the wider industry bargaining, the following claims:

a) a 4 Week Swing (the 4 Week Swing Claim);
b) payment for a “Dead Day” or payment for travel (the Dead Day Claim); and
c) the same Expiry Date or a common end date (the Expiry Date Claim).

[36] Section 412 of the FW Act provides:

(1) A course of conduct by a person is pattern bargaining if:

(a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and

(b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and

(c) the course of conduct relates to 2 or more employers.

Exception--genuinely trying to reach an agreement

(2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.

(3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include the following:

(a) whether the bargaining representative is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement;

(b) whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees;

(c) whether the bargaining representative is meeting the good faith bargaining requirements.

(4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies.

Genuinely trying to reach an agreement

(5) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.

[37] It is common ground between the parties that the first leg of s.412(1) is met in the present matter, that is that the MUA is a negotiating party to 2 or more proposed collective agreements: s.412(1)(a). No argument was raised about s.412(1)(c).

[38] The essential dispute is about whether the MUA is engaged in a course of conduct that involves “seeking common …. conditions of employment for 2 or more of those proposed collective agreements”: s.412(1)(b).

Principles relevant to Pattern Bargaining

[39] The following summary of principles can be extracted from the relevant authorities:

a) Trinity Garden:

i. there is no error in interpreting the expression “common” to mean the “same” or “identical”; 28
ii. it is correct to find that a union is not seeking “common wages” if, at the time [that the s.418 application is made] the union has indicated a preparedness to negotiate different increments for different employers (even if the cumulative arithmetic of the increases ended up the same). 29

Evidence in relation to the 4 Week Swing Claim

[40] Evidence of what is being sought by the MUA in the negotiations being conducted with the 21 vessel operators (other than Farstad) (Industry Vessel Operators) was provided by Mr White 30 and Mr Tracey.

[41] Evidence of what is being sought by the MUA in the Farstad agreement was provided by Mr Barrow and Mr Tracey.

[42] The claims can be summarised as follows:

Finding in relation to the 4 Week Swing Claim

[43] As stated above, in Trinity Garden the Full Bench held that it is correct to find that a union is not seeking “common wages” if, at the time [that the s.418 application is made] the union has indicated a preparedness to negotiate different increments for different employers.

[44] By analogy that is what the MUA has also done in relation to the 4 Week Swing Claim. That is to say, it has indicated to the industry a preparedness to negotiate (in fact abandon) the 4 Week Swing Claim. The same cannot be said for the 4 Week Swing Claim against Farstad. The MUA has never even hinted at resiling from the 4 Week Claim with Farstad. In this regard, in relation to the 4 Week Swing Claim the MUA is not pursuing the same course of conduct as between the Vessel Operators and Farstad.

[45] Further, the 4 Week Swing Claim against Farstad has an element of “grandfathering” associated with it. There is no evidence that has ever been the case with the Vessel Operators. It is not the same claim. It is not identical. It is not a common condition that is being sought.

Evidence in relation to the Dead Day Claim

[46] Again having regard to the evidence of Messrs White, Barrow and Tracey, the claims can be summarised as follows:

Finding in relation to the Dead Day Claim

[47] What is clear from the evidence and the Commission, as presently constituted, finds is that the Dead Day Claim made against the Vessel Operators is not the same claim being made against Farstad. It is not identical. It is not a common condition that is being sought.

Evidence in relation to Expiry Date Claim

[48] Again having regard to the evidence of Messrs White, Barrow and Tracey, the claims can be summarised as follows:

Finding in relation to Expiry Date Claim

[49] The evidence is that, as at 28 October 2014, the MUA are pursuing an Expiry Date of 31 October 2017 with the Vessel Operators. Noting that no agreement has been reached with the Vessel Operators this means that, if the MUA is successful in its claim, the Vessel Operators’ Agreements will operate for less than three years.

[50] The evidence is that, as at 22 October 2014, the MUA is content with either a 3 or 4 year Agreement. In around 27 February 2014 the MUA indicated that its non-preference for a 3 or 4 year agreement had the caveat of “but would expect an industry outcome on term of agreement”, 36however, the evidence of Mr Tracey was that the MUA’s expectation was that Farstad would want to align with the Vessel Operators. His unchallenged evidence before the Commission yesterday was that the MUA will “take what [Farstad] want”, if Farstad “want a three year agreement, we’ll give them three”, “it’s their choice.”

[51] Having regard to this evidence the Commission, as presently constituted, finds that the Expiry Date Claim made against the Vessel Operators is not the same claim being made against Farstad. It is not identical. It is not a common condition that is being sought.

Conclusion re Pattern Bargaining Issue

[52] For the reasons stated above the Commission, as presently constituted, finds that the MUA is not seeking common (i.e. the same or identical) conditions of employment for 2 or more proposed collective agreements. Consequently, the Commission, as presently constituted, finds that the MUA is not engaged in Pattern Bargaining.

The Genuine Trying Issue

[53] Having found that the MUA is not engaged in Pattern Bargaining it is not strictly necessary to determine if it is genuinely trying to reach agreement. However, if I am wrong about the Pattern Bargaining Issue, then, in any case, I would go on to find that the MUA is genuinely trying to reach an agreement with Farstad.

[54] It is accepted by all parties that the MUA bears the onus of proving that it is genuinely trying to reach agreement.

[55] The relevant matters are as follows:

a) whether the MUA is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of Farstad, including in relation to the nominal expiry date of the agreement;

b) whether the MUA is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees; and

c) whether the MUA is meeting the good faith bargaining requirements. In the present proceedings no complaint has been made by Farstad that the MUA is not engaging in good faith bargaining.

Conclusion re genuinely trying to reach agreement

[56] While accepting the statement that “nothing is agreed, until everything is agreed” the evidence in this matter, in particular the attachments to Mr Barrow’s witness statement (that traverse the history of the negotiations and, significantly, the narrowing of the final issues that remain in real contention to 6 as at 5 November 2014), demonstrate the amount of ground both of the parties have travelled in the negotiation since it began (and in particular this year) has been considerable.

[57] The documentary evidence demonstrates that concessions have been made on both sides. And while the documents indicate that Farstad has been more willing to make concessions, that does not mean that the MUA has not been willing to do so. The evidence does not demonstrate that the MUA is not genuinely trying to reach agreement. True it is that the MUA are engaging in hard bargaining, but they are entitled to do so.

[58] In respect of the 4 Week Swing Claim the fact of the matter is that MUA genuinely hold to the view that a 4 week swing is more family friendly. Having regard to the demographics of their staffing profile, Farstad do not agree. Further, Farstad do not accept the MUA’s contention that “the 4 week swing issue has been raised as a threshold [issue] at all stop work meetings and ship board meetings run by the delegates [at Farstad] throughout this EA campaign”. 37 It is not so much that the MUA has not been providing reasons for the 4 Week Swing Claim, it is more a case that Farstad does not like the answers it is receiving. To the extent that Farstad are confident that they better understand the wants, needs and desires of it employees, it should put the MUA’s claims of support (for a 4 week swing) to the test by putting an agreement out to vote that retains the current 5 week swing arrangement. Alternatively, it could conduct its own poll of its employees. 

[59] For the reasons set about above and having regard to the authorities referred to, the Commission is satisfied the MUA is genuinely trying to reach agreement with Farstad.

[60] Consequently, the Commission is satisfied that the MUA is not engaged in pattern bargaining.

Overall conclusion

[61] Returning then to the issues to be determined (as stated above) the Commission, as presently constituted, answers the questions posed as follows:

a) Does the PIA Notice comply with s.416 of the FW Act having regard to the eighth exemption concerning “Any and all safety and emergency related issues”?

“Yes”.

b) Is the MUA engaging in pattern bargaining?

“No”.

c) If, at first appearance, the MUA is engaging pattern bargaining is it otherwise genuinely trying to reach an agreement with Farstad?

Not applicable, but in any case “Yes”.

[62] For the above reasons Farstad’s application for a s.418 order is dismissed and the substantive application having now been determined the interim order preventing industrial action issued on 13 November 2014 ceases to operate.

[63] Of course if any resulting industrial action endangers the life, the personal safety or health, or the welfare, of the population or of part of it; or is likely to cause significant damage to the Australian economy or an important part of it, there may be other remedies available to Farstad. Short of that, the Commission should respect the role of the legislature in prescribing industrial behaviour which, under the FW Act, allows (arguably encourages) parties engaged in bargaining to engage in the “rude and barbarous process of strike and lockout”, 38 where force displaces reason.

[64] The Order [PR557796] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

Mr F Parry of Queen’s Counsel and Mr N Harrington of counsel for the Applicant.

Mr S Moore and Ms E Levine of counsel for the Respondent.

Hearing details:

Sydney by videolink to Melbourne and Perth.

16 November 2014.

 1   [2014] FWC 4546.

 2   PR552870.

 3   Exhibit “F4”, Witness Statement of Peter Barrow, [25] - [31]. Exhibit “MUA2”, Witness Statement of Will Tracey, [14]-[15].

 4   (1999) 91 FCR 463.

 5   (2000) 100 IR 52.

 6   [2005] FCA 403.

 7   (PR973718) (21 August 2006).

 8   (2009) 190 IR 342.

 9   (2010) 196 IR 103.

 10   (2010) 190 FCR 581.

 11   [2013] FWAFB 3793.

 12   [2013] FWCFB 5982.

 13   [2014] FCA 172.

 14   [2014] FWC 4546.

 15   Applicant’s Outline of Submissions, para 6.

 16   Respondent’s Outline of Submissions, paras 12-16.

 17   Exhibit “MUA1”, paras 3-5.

 18   Exhibit “MUA1”, para 6.

 19   (1999) 91 FCR 463, [84]-[88] per Wilcox and Cooper JJ.

 20   (2000) 100 IR 52, [17].

 21   (2000) 100 IR 52, [21].

 22   [2009] FWAFB 1698, [12].

 23   (2010) 196 IR 103, [33] – [35].

 24   (2010) 190 FCR 581, [58].

 25   [2013] FWAFB 3793, [60].

 26   [2013] FWAFB 3793, [55]-[56].

 27   (2010) 196 IR 103, [35].

 28   (PR973718) (21 August 2006), [21]-[22].

 29   (PR973718) (21 August 2006), [28]-[31].

 30   In particular Exhibits SW-1 and F7.

 31   Exhibit WT-5.

 32   Exhibit PB-12.

 33   Exhibit PB-12.

 34   Exhibit SW-1.

 35   Exhibit PB-9.

 36   Exhibit WT-6.

 37   Exhibit PB-17.

 38   Henry Bournes Higgins, ‘A New Province for Law and Order’ (1915) 29 Harvard Law Review 13, 13–14.

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