AREEA has asked an FWC presidential member to correct the public record, claiming he was wrong in upbraiding the employer body for its “apparent failure” to inform the Commission about changes to its client’s ownership during a good faith bargaining case.
Senior Deputy President Matthew O’Callaghan said in his January ruling that AREEA’s alleged inaction seems to “go directly to the credibility” of the employer organisation.
He said he was unable to see “any appropriate reason” for AREEA’s “apparent failure (to) provide timely advice” to former Commissioner Danny Cloghan on “corporate and employment changes” within its client, Offshore Marine Services.
The deputy president said the employer’s status changed twice during the good faith bargaining case, starting out as Offshore Marine Service until it was incorporated into Skilled Group Ltd as a subsidiary, Skilled Offshore Pty Ltd, in 2014.
“It does not appear that any advice of these changes was provided to the commissioner,” Senior Deputy President O’Callaghan said.
Then, in October 2015, Programmed Maintenance Services acquired Skilled Offshore.
“Again, it does not appear that this development was raised in the proceedings before the commissioner,” he said.
Senior Deputy President O’Callaghan said the employer organisation’s failure to inform the Commission about the changes “appears to go directly to the credibility of AREEA as a bargaining representative seeking the assistance of the FWC”.
“The obligation to inform the parties, and, to the extent that the FWC is involved, of changes to relevant organisational structures is an issue which should be addressed by AREEA in any future matter,” he said.
But AREEA, in a letter today to Senior Deputy President O’Callaghan’s chambers, details the occasions on which it informed the Commission of the changes to its client’s status.
It says the comments at paragraph 27 of the decision are not based on facts and should be corrected.
The employer body wants a correction under the s602 power to fix “obvious errors” and/or the s603 power to revoke or vary Commission decisions.
The fix is needed to avoid any further damage to its reputation among members of AREEA and the FWC, the employer body says.
Senior Deputy President O’Callaghan also rounded on the MUA, saying that “throughout the matter (it) appears to have adopted an intransigent approach to the issues in dispute rather than committing itself to the conclusion of the negotiation process.
“This reflects a position which the MUA should reflect upon for the future,” he said.
Commission quashes GFB order
Senior Deputy President O’Callaghan acceded to the MUA’s request that would “effectively revoke” a bargaining order made by Commissioner Cloghan in October last year (See Related Article).
He said the parties agreed that Commissioner Cloghan’s order “cannot now be complied with and has no utility because of a shared failure to provide advice to the commissioner about these corporate changes”.
Senior Deputy President O’Callaghan said he would vary Commissioner Cloghan’s decision to exclude the order from the final paragraph of his October 31 decision.
He stressed, however, that there was “no suggestion” that Commissioner Cloghan’s conclusions on the MUA’s conduct were incorrect and “this revocation decision must not be taken as altering that aspect of the Commissioner’s decision”.
The senior deputy president revoked Commissioner Cloghan’s order.
Australian Mines and Metals Association [2017] FWC 18 (3 January 2017) Order (3 January 2016)