Australia: MUA Versus TMS – Analysis Of A Dispute

Enterprise - April 2010

At the time of writing it appears that the longstanding bargaining dispute between Total Marine Services Pty Ltd (TMS) and the Maritime Union of Australia (MUA) has finally resolved. The parties have been engaged in a bargaining stalemate and ongoing legal proceedings since August 2009.

The outcome of the dispute is highly controversial because the MUA has won members of the TMS workforce a 30% wage increase over an anticipated four year agreement, and an extremely generous suite of allowances. The most contentious of these allowances is a daily construction parity allowance of $180 per day (double the present entitlement) which increases to $200 during the course of the agreement. This claim for an allowance for construction work is part of the MUA's industry-wide bargaining campaign.

There are a number of reasons why the dispute has assumed considerable importance.

There are immediate concerns that benefits secured by MUA will flow through to agreements that the MUA is currently negotiating with two of TMS' competitors.

More broadly, the outcome of the dispute is an indication of demands the MUA and other unions will seek in bargaining negotiations, and the ability of unions to rely on the new bargaining provisions of the Fair Work Act 2009 (the FW Act).

Already the result of the TMS negotiations has raised questions of the relative pay and conditions earned by members of the Australian Institute of Marine and Power Engineers (AIMPE) who work as marine officers and engineers in Australia's offshore industries (and are generally significantly better qualified than members of the MUA). Will members of AIMPE be prepared to temper demands for improved terms and conditions of employment in the current environment?

The MUA relied upon its bargaining rights under the provisions of the FW Act throughout the dispute and ultimately engaged in various periods of protected industrial action. For its part TMS resorted to numerous legal applications in an effort to prevent the MUA from engaging in industrial action. Is this resort to legal claim and counterclaim a harbinger of how bargaining disputes will be fought out under the new laws?

The earliest legal decision in this ongoing battle was the decision of Commissioner Thatcher in Maritime Union of Australia v Total Marine Services Pty Ltd [2009] FWA 187 (1 September 2009). Here the MUA sought to obtain orders for the conduct of a protection action ballot order and TMS responded that the union had not genuinely tried to reach agreement. The principal argument of the employer was that the union had not provided it with sufficient detail of its claims, and had not responded to proposals made by TMS. The MUA's position was that it was not prepared to provide specific details of its proposed wages claim until after it had achieved a "landing" on its construction allowance claim. Did this mean that the MUA was not "genuinely trying to reach agreement?

What is perhaps important about this particular issue is the difference of view between the individual Commissioner hearing the matter, and the Full Bench of FWA which heard an appeal of that decision ([2009] FWAFB 368, 9 October 2009). In his original decision Commissioner Thatcher considered that any uncertainty about detail concerning the wages claim and the construction allowance did not necessarily mean that the MUA was not genuinely trying to reach agreement. He stated that his experience in industrial relations persuaded him that "absence of detail at this stage of the bargaining process is not unusual". He found that the MUA had not acted prematurely in making an application for a protected action ballot order. Further the Commissioner considered that the claim for the construction parity allowance (even though it was rumoured to be something like $400-500 per day) was not "so extravagant or fanciful as not to be a serious claim, even if the achievement of such an outcome may seem remote".

Ultimately the decision of the Full Bench in the appeal proceedings took a somewhat different view about this question whether the MUA had satisfied the statutory test of "genuinely trying to reach agreement". The appeal decision strongly indicates that an application for protected ballot orders cannot be made "prematurely", and that one would normally expect the applicant for such an order to have "clearly articulated the major items it is seeking for inclusion in the agreement", and also to have "provided a considered response to any demands made by the other side". Here the Full Bench found that there had been limited face to face meetings, and the MUA had failed to properly articulate its claims. Some items may have been set out in a list of headings but were not explained or discussed. While the MUA may have been "genuine", the Full Bench found that it had not satisfied the statutory test of "genuinely trying to reach agreement".

There was a subsequent consideration of these issues in a decision of Senior Deputy President Harrison ([2009] FWA 815, 26 October 2009), and by this time the MUA had provided details of the wage claim it sought in negotiations and satisfied other concerns raised by the Full Bench. Her Honour proceeded to grant a protected ballot order which allowed the MUA to engage in protected industrial action. The dispute eventually resulted in further FWA proceedings in January 2010 with TMS attempting to obtain orders to prevent industrial action. This action took place shortly before the apparent resolution of the dispute in early February.

The ongoing imbroglio between the MUA and TMS also involved legal proceedings that provided one of the earliest discussions of the new good faith obligations. In Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWA 290 (16 September 2009) TMS sought to rely on the good faith provisions to compel the MUA to disclose the reasons for its bargaining position. This case was also heard by Commissioner Thatcher who appears to have wanted to reach a practical resolution to the legal and industrial conflict that had arisen between the parties. According to the Commissioner the bargaining parties were experienced industrial practitioners engaged in 'hard fought' negotiations, but neither party had actually acted in 'bad faith'. The Commissioner stated that good faith bargaining orders should only be made where 'necessary' and he did not consider that making an order would promote bargaining in the particular case. The decision stands for the principle that good faith bargaining issues are likely to be considered on a strictly case-by-case basis. Here the Commissioner's view was that the union had provided 'sufficient' information to allow ongoing negotiations, and the level of detail sought by the employer was 'excessive and oppressive'.

At a practical level the most important aspect of the TMS/MUA dispute is that it is part of the MUA's current industry-wide campaign. There is also concern among employers that the benefits and the wage increases achieved by the MUA may flow through to comparable industries. The dispute also provides a clear illustration of how union parties may seek to utilise the bargaining provisions of the FW Act. On the other hand, however, the Full Bench decision in this matter does propose some clearer guidelines about the nature of the statutory test for "genuinely trying to reach agreement". It is evident that a negotiating party needs to do something more than taking steps "preparatory to developing an agreement" to meet the statutory test. An application for a protected action ballot order will not be granted where it is made "prematurely".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.