Originally published in Workplace Express on 1  November 2016.

After twice refusing to issue bargaining orders against the MUA over its conduct in negotiations with offshore oil and gas vessel operators, the FWC has told it to set the record straight on a string of misrepresentations about the “status, content and character” of bargaining.

The MUA has until November 11 to provide AREEA with correspondence correcting information it gave to members about bargaining with Mermaid Marine, Swire Pacific Ship Management and Offshore Marine Services (now owned by Programmed Marine) for a deal to replace agreements that expired in mid-2013.

Commissioner Danny Cloghan last year found the MUA played “fast and loose with the truth” and behaved in a manner that raised questions about whether it was genuinely trying to make replacement agreements, but twice refused to grant bargaining orders sought by AREEA.

In an interim decision last July, Commissioner Cloghan found the MUA “strayed from reality and gave a false impression to members and the media” when then WA branch assistant secretary Will Tracey said vessel operators withdrew a 16.5% wage offer, when the union had in fact rejected it (see Related Article).

He found the union also misrepresented the companies’ position on “foreign labour”; incorrectly said the companies were refusing to meet; and used a “straw man” argument to suggest they were preparing to offer non-union agreements because they communicated directly with employees.

Commissioner Cloghan declined in December to grant bargaining orders under s230 of the Fair Work Act for a second time, to enable him to consider developments since one vessel operator, Farstad Shipping, struck an agreement with the MUA (see Related Article).

However in GFB orders issued yesterday, Commissioner Cloghan directed the union, in its capacity as bargaining representative for members covered by the Mermaid Marine Vessel Operations Pty Ltd Integrating Racings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010, to correct information it gave to them in 2014 “about the status, content and character of enterprise bargaining to replace the agreement” including that:

• AREEA and offshore vessel operators had withdrawn a 16.5% wage offer, when the MUA in fact rejected the offer in January 2014;
• AREEA was “running fast and loose with the truth. . . and then withdrawing [wage offer] when the MUA finally accepted that offer”, when the MUA had actually rejected it and then “purported acceptance of the offer was conditional”;
• Mermaid Marine sought to deny the employees a replacement agreement until June 2015, when “in fact, Mermaid Marine were seeking a replacement agreement as early as possible”;
• vessel operators were refusing to meet to bargain, when in fact Mermaid Marine “had not refused to meet with the MUA”;
• the MUA and Mermaid Marine had not resolved a proposed foreign labour clause, when in fact they had; and
• offshore employers “appear to flag offer of non-union agreement”, when this had “no basis in fact”.

Commissioner Cloghan also directed the MUA to refrain “when communicating with relevant employees and the media” from misrepresenting Mermaid Marine’s position on the “union’s claims, its status or progress of bargaining for a replacement enterprise agreement”.

A further direction to refrain from “making it a condition” that the bargaining group include a third party is understood to be a reference to changing positions over whether Chevron should be involved.

The MUA has until 4pm on November 16 to provide members with a copy of the order and correspondence correcting the information and by the following day must provide AREEA and the FWC with evidence that it has complied.

Over the past five months the FWC has approved agreements for some MUA-covered work groups, including at DOF Management, MMA Offshore and Smit Lamnalco.

The MUA in August said it was challenging the approvals, questioning the validity of bargaining groups and accusing the companies of attempting to “pursue non-union agreements as part of a protracted campaign” led by AREEA (see Related Article).

A Programmed Marine Management proposed agreement is awaiting approval.

Australian Mines and Metals Association PR587085 (31 October 2016)