Union Wins Go Ahead For TMS Industrial Action Ballot

26 October 2009 2:05pm Fair Work Australia has today granted the MUA's application for a second protected action ballot of its members at Total Marine Services, after a full bench overturned the first ballot order because the union wasn't genuinely trying to reach an agreement.

Senior Deputy President Anne Harrison's ruling this morning follows Commissioner Colin Thatcher granting the initial ballot application on September 1 and a full bench - Vice President Graeme Watson, Senior Deputy President Jonathan Hamberger and Commissioner Michael Roberts - overturning it on October 9, saying the union had taken only "preparatory" steps in negotiations and had failed to establish that it had genuinely tried to reach an agreement.


The MUA then made a fresh application for a ballot, which Senior Deputy President Harrison heard last Monday. In today's decision, she adopted Commissioner Thatcher's findings about the course of negotiations and the conduct of the MUA and TMS, noting that the full bench hadn't found any error in them.

She then considered evidence from the union and company about negotiations beyond the timeframe (up to early August) taken into account by Commissioner Thatcher. The evidence itemised emails, meetings and documents exchanged between the parties from August 6 until October 15 (see paragraph 15 of the decision).

The MUA said the evidence meant it was unarguable that it was genuinely trying to reach an agreement, while TMS maintained it showed that the union was still taking preparatory steps and that the process had involved no more than sifting, sorting and consolidating of claims. FWA finds union genuinely trying; process a poor example of meeting ballot legislation's objective Senior Deputy President accepted the union had met the statutory prerequisite at http://www.austlii.edu.au/au/legis/cth/num_act/fwa2009114/s443.html">s443(1) of genuinely trying to reach agreement, while articulating her disquiet at the process.

She said the courses the two ballot applications had taken "do not provide a good example of achieving the object of the protected action ballot division which is to establish a fair, simple and democratic process to determine if employees wish to engage in particular industrial action".

Senior Deputy President Harrison added that the Fair Work Act's explanatory memorandum, at paragraph 1755, is in similar terms: "The Division contains facilitative provisions designed to provide a means for assessing the level of support for protected industrial action. The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees". Member says "a little more" because of parties' opposing positions Senior Deputy President Harrison said her factual findings should constitute adequate reasons for her decision, but she had decided to "say a little more" because of the opposing positions the parties had taken on "the weight, relevance and adequacy of the evidence in the formation of the requisite level of satisfaction required in s.443(1)(b)".

She firstly considered the number of meetings between the parties and the extent to which they had articulated their claims. She accepted the MUA's contention that she needed to give weight to its "numerous requests" for face-to-face meetings. TMS responded that it wanted further particulars of the union's claims before agreeing to meet, while the union said it would provide the further details at a meeting.

She noted that the company's agreement to the union's request coincided with the MUA applying for a s229 good faith bargaining order. Senior Deputy President Harrison then considered the timeframe over which the parties had attended a series of meetings and exchanged documents.

On one of the issues that had brought the MUA application undone on appeal - the negotiation of some items at industry level - Senior Deputy President Harrison said that by August 14 "the MUA was seeking to deal with TMS on an enterprise basis and the claims against TMS were set out in a TMS specific log". The full bench found the union's wage claim hadn't been fully specified, but Senior Deputy President Harrison said the claim for 30% over three years had been specified by "at least" August 14, while other wage-related matters had also been discussed.

Senior Deputy President Harrison accepted that Commissioner Thatcher's September 16 ruling on the company's good faith bargaining order bid was "part of the context" surrounding her consideration of whether the union had genuinely tried. She noted that both the Commissioner and the full bench had been careful not to equate good faith bargaining with genuinely trying, while accepting that the question of whether good faith bargaining requirements had been met could be relevant.

She agreed with Commissioner Thatcher and the full bench that there was nothing to suggest the MUA was other than genuine in its approach to negotiations. "That has continued for the whole of the period under consideration in this decision", she said. Senior Deputy President Harrison said the evidence had persuaded her that the MUA "has also been, and is, genuinely trying to reach agreement with TMS". She rejected the TMS challenge to the form of questions to be put to employees in the ballot. MUA v Total Marine Services Pty Ltd [2009] FWA 815 (26 October 2009) (a link to the decision will be provided as soon as it is available).

Meanwhile, a Fair Work Australia full bench - Vice President Michael Lawler, Senior Deputy President Ken Ives and Commissioner Paula Spencer - on Friday heard Farstad shipping's appeal against a ballot order (see Related Article). The bench, on concluding the hearing, told Farstad it had been unsuccessful and said it would issue reasons later.