[2009] FWAFB 368

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Fair Work Act 2009
s.604 - Appeal of decisions

Total Marine Services Pty Ltd
Maritime Union of Australia



Appeal against decision [2009] FWA 187 and order PR988979 of Commissioner Thatcher at Sydney on 1 September 2009 in matter number B2009/10385 – level of specificity required in ballot questions – use of term ‘unlimited’ in ballot questions – whether applicant genuinely trying to reach agreement – Fair Work Act 2009 ss 443, 437.


[1] This decision concerns an application for permission to appeal and an appeal by Total Marine Services Pty Ltd (TMS) pursuant to s 604 of the Fair Work Act 2009 (the Act). The application and the appeal relate to a decision and protected action ballot order issued by Commissioner Thatcher on 1 September 2009. 1

[2] The matter was heard on 23 September 2009. Mr H Dixon SC and Mr T Caspersz, of counsel, represented TMS. Mr T Slevin, of counsel, represented the Maritime Union of Australia (MUA). Mr D Jacka represented the Australian Council of Trade Unions (ACTU) which was granted leave to intervene. At the conclusion of the proceedings, the parties were permitted to file evidence of subsequent events and further written submissions. Affidavits were filed on behalf of the MUA and TMS and written submissions were subsequently received from all parties.


[3] On 31 July 2009 the MUA applied for a protected action ballot order pursuant to s 437 of the Act. The application sought that a ballot be held of all cooks, caterers, integrated ratings and seafarers employed by Total Marine Services in the offshore oil and gas operations for which it supplies labour and who would be covered by the proposed enterprise agreement.

[4] The existing enterprise agreement Total Marine Services Pty Ltd - Integrated Ratings, Cooks, Caterers and Seafarers Agreement 2006-2009 (the existing agreement) had a nominal expiry date of 21 March 2009. The agreement addressed industry issues common to all industry participants.

[5] The application related to negotiations which the MUA had been conducting with TMS and other employers in the industry for several months. The negotiations had been conducted partly on an industry basis and partly on an enterprise basis. It is important to briefly set out the chronology of those negotiations.

[6] On 18 November 2008 the MUA presented the employers in the industry with a log of claims containing 193 items. These claims were the subject of discussions in industry meetings held on the 20 and 21 January 2009.

[7] On 19 January 2009 the MUA indicated to industry participants its intention to seek enterprise level negotiations with a number of employers, and also that it was willing to proceed with industry level negotiations should that be viewed as more appropriate. On 20 February 2009 the Australian Mines and Metals Association (AMMA), on behalf of the industry, responded to the MUA’s log of claims and expressed agreement on 43 out of the 193 items. The employers expanded on their response by letter from AMMA on 3 April 2009.

[8] On 17 April 2009 the MUA wrote to TMS to seek negotiations for an enterprise agreement on an individual basis.

[9] On 29 April 2009 the MUA wrote to AMMA rejecting its offers of 20 February and 3 April 2009. It indicated that it intended to negotiate directly with employers who had been served with bargaining notices.

[10] On 12 May 2009 the MUA served a notice to initiate a bargaining period on TMS pursuant to s 423 of the Workplace Relations Act 1996. The notice contained 19 items the MUA wished to be dealt with in the proposed enterprise agreement.

[11] TMS responded to the MUA on 18 May 2009. The response agreed to commence negotiations, requested the MUA to particularise their 19 items, provided a draft enterprise agreement thought to reflect current industry standards and proposed a meeting for the following week.

[12] The first meeting between TMS and the MUA was held 29 May 2009. This meeting reviewed the process for the future negotiations. The MUA agreed that prior to the next meeting it would particularise its 19 items. TMS agreed that it would provide an amended draft enterprise agreement for the MUA.

[13] On 2 June 2009 TMS provided an amended draft enterprise agreement to the MUA. On 4 June 2009 the MUA emailed TMS re-stating its 19 specific EBA claims plus an additional eight items. Both lists were in bullet point form. The MUA said that it would speak to the items at the next meeting.

[14] The second meeting was held 19 June 2009. Discussions led to the MUA withdrawing some of its 19 items and ‘parking’ others pending further consideration, possibly on an industry basis.

[15] A third and final meeting was held on 23 June 2009. The meeting lasted around an hour but for part of the period dealt with other issues. The MUA withdrew two further claims and ‘parked’ two others. It provided some further detail on its construction claims, which covered 5 separate items, one of which was ‘parity with tradesperson’. The MUA proposed that the construction claims be dealt with via a conciliation conference before the AIRC.

[16] At an industry meeting on 10 July 2009, the MUA communicated to the industry participants that it now proposed to deal with all issues at the enterprise level. The MUA indicated that it would be willing to discuss items with the industry as a whole, but its preference was for further negotiations on those items to occur at the enterprise level. Some industry level discussions occurred at the conclusion of the meeting.

[17] Until the hearings before the Tribunal no further meetings were held between TMS and the MUA. However on 10, 14, 20 and 22 July 2009 emails were exchanged between the parties. The MUA further addressed some of the particular items being pursued. TMS responded to these items and provided counter claims in the form of a table. The MUA responded to this table as well as a request for additional information to enable TMS to cost certain items.

[18] On 28 July 2009 apparently for the purposes of the Act, the MUA wrote to TMS confirming its position as bargaining representative for the employees of TMS currently covered by the existing agreement. The MUA also sought a list of available dates from TMS for future negotiations.

[19] According to TMS, as a result of the three meetings and email correspondence, from the initial list of claims provided on 4 June 2009, 6 claims had been withdrawn, 4 claims were referred back to industry negotiations, 2 claims were being pursued at the enterprise level, 1 claim was parked up pending a review of TMS OH&S systems, 1 claim was to be subject to rewording and it was unclear what other claims would be pursued. The MUA had not provided details of its claim for a wage increase because it said that its claim depended on the outcome of its construction claims.

[20] On 31 July 2009 the MUA applied for a protected action ballot order pursuant to s 437 of the Act.

[21] TMS responded to the MUA on 3 August 2009. It asserted that negotiations for the proposed enterprise agreement had not occurred because the MUA had not particularised its claims. For negotiations to have taken place, the MUA would have to have provided particulars of the items sought and provided information to TMS already requested.

[22] The matter was heard by Commissioner Thatcher on 4, 5, 11 and 21 August 2009.

[23] TMS opposed the application on two grounds. First, it submitted that the application had not been properly made under s 437 because the proposed industrial action is not protected industrial action as required by s 437(1), and in addition the application did not satisfy s 437(3)(b). Secondly, TMS submitted that the Tribunal could not be satisfied that the MUA had been and was genuinely trying to reach an agreement, as required by s 443(1)(b) of the Act.

[24] Commissioner Thatcher rejected both arguments. The application was granted and an order and decision was issued on 1 September 2009. The questions to be put to employees in the ballot are as follows:

Grounds of appeal

[25] The grounds of appeal traverse the arguments raised before Commissioner Thatcher. TMS contends that a valid application has not been made under s 437 of the Act and Fair Work Australia cannot be satisfied that the MUA has been genuinely trying to reach an agreement with TMS. Hence, TMS submits that both requirements of s 443(1) have not been complied with and as such the jurisdiction of the Fair Work Australia to issue a protected action ballot order is not enlivened.

[26] TMS contends that the Commissioner erred in finding that the application made by the MUA was made in accordance with s 437 because far more particularity about the nature of the proposed industrial action is required. TMS submits that the requirement in s 437(1) that the particular industrial action be identified, and the requirement in s 437(3)(b) that the questions to be put to employees specify the nature of the proposed industrial action are for the purpose of ensuring employees make an informed decision on whether to engage in the particular industrial action.

[27] TMS submits that the use of the term ‘unlimited’ in reference to various forms of industrial action in the questions makes them ambiguous, open-ended and therefore uncertain. It contends that the decision to engage in industrial action is a decision for an employee and there is no scope under the Act for this decision to be delegated to another. It is submitted by TMS that the questions, in effect, will delegate to the bargaining representative the decision as to the time, extent and duration of the industrial action.

[28] TMS also submits that the Commissioner erred in finding that the MUA had been, and was, genuinely trying to reach an agreement under s 443(1)(b) of the Act. It submits that the Commissioner could not have been satisfied to the requisite level required under s 443(1)(b) and that he failed to have proper regard to certain evidence in reaching his finding.

[29] The MUA and the ACTU oppose permission to appeal. They submit that the decision under appeal involves no error. They submit that there is ample evidence before the Tribunal that the MUA had been genuinely trying to reach an agreement. Both the MUA and the ACTU submitted that it was inappropriate for Fair Work Australia to enquire into the state of affairs between the bargaining parties to assess whether the bargaining had progressed to a sufficient stage that an application for a protected action ballot should be made. They also submitted that the form of the questions formulated in the ballot is sufficiently clear.

Genuinely trying to reach an agreement

[30] The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process of establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.

[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 2 It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.

[33] Arising from the submissions of the parties in the matter before him, Commissioner Thatcher considered a number of questions relevant to s 443(1)(b). He considered whether the MUA tried to get as far as it could in the negotiations but fell short of reaching a conclusion on the matter because the test involved a different question. In our view he was correct in that approach. He considered whether the MUA was bargaining in good faith as a relevant consideration to whether the MUA was genuinely trying to reach an agreement and again correctly in our view fell short of equating the concepts.

[34] Commissioner Thatcher considered whether the MUA was impermissibly mixing its claims for an enterprise agreement with claims for other types of agreement and found that it was not. He considered whether there was a need to demonstrate that the MUA was representing the views of employees it purported to represent and determined that the Act did not require that type of supervision. We believe he was correct in this view.

[35] Commissioner Thatcher then considered all circumstances. He said that nothing turns on the fact that the parties are focussing on enterprise specific claims and had agreed to ‘park’ certain industry matters. He concluded that the MUA strategy of waiting to determine what general wage increases it will press until the union had achieved a ‘landing’ on its construction claim is not a factor that goes against a finding that the MUA has not been genuinely trying to reach an agreement.

[36] In this conclusion we believe that the Commissioner fell into error. It is clear on the evidence that the negotiations involved limited face to face meetings and limited articulation of many of the claims. Certain matters were being dealt with in concurrent industry negotiations. Many items were only set out in a list of headings and were not explained or discussed. The wage claim had not been specified. There is nothing to suggest that in taking the steps that it did, the MUA was other than genuine. Nevertheless, in our view it cannot be said in these circumstances that the MUA had genuinely tried to reach an agreement. The steps it had taken were preparatory to developing an agreement but in our view insufficient to satisfy the test its application needed to meet. The error made by the Commissioner involves both a mistake of fact and an error of principle.

[37] We are therefore of the view that the pre-requisite for the application under s 443(1)(b) was not satisfied and the Commissioner did not have jurisdiction to make the order. We believe in the circumstances that the application should not be considered by us on the basis of subsequent circumstances. The MUA is of course free to make a further application.

Clarity of questions

[38] The further ground of appeal relates to the nature of the questions asked. Commissioner Thatcher concluded that the questions asked in the ballot are sufficient to enable employees to understand the nature of the protected action they will be asked to authorise. We believe he was correct in that view.

[39] TMS is critical of the use of the term ‘unlimited’ in relation to the particular forms of industrial action. The precise length of any action will be determined subsequently by the bargaining agent who organises the action and the members of the union who choose to participate. It is inevitable that the precise timing and length of the action is not determined at the stage of authorisation. But in voting to authorise the action the employees would have no doubt of the outer limits of the action involved. In our view the requirements for an application are satisfied.


[40] For the reasons above we are of the view that the jurisdictional pre-requisite for making the order in s 443(1)(b) of the Act was not satisfied and the application should have been dismissed. We grant permission to appeal, allow the appeal and quash the order of Commissioner Thatcher dated 1 September 2009.



Mr H. Dixon SC with Mr T. Caspersz of counsel for Total Marine Services Pty Ltd

Mr T. Slevin of counsel for the Maritime Union of Australia

Mr D. Jacka for the Australian Council of Trade Unions

Hearing details:

September 23

 1   [2009] FWA 187 and PR988979

 2   Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Print T1982; Re Media, Entertainment and Arts Alliance PR928033

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