Farstad Shipping (The Indian Pacific) v MUA

A party can be genuinely trying to reach agreement even if you have not fully particularised its major claims.


In this case, the MUA began negotiations with the shipping industry about a log of claims. The MUA indicated it was prepared to negotiate individually with the employer on some of the matters in its industry log of claims, and three meetings were held between the MUA and the employer before the MUA sought a protected action ballot.

The employer objected to the application on the basis that the negotiations were not sufficiently advanced as the parties had not ‘rolled up their sleeves and started a real exchange of negotiations’. The employer argued that the MUA was not genuinely trying to reach agreement, relying on the decision in Total Marine Services, in which FWA found that an application for a protected action ballot order could not be granted unless the applicant had first clearly articulated its major claims to the other party. The Full Bench in this decision disagreed, relying on the more recent decision in JJ Richards in which FWA held that a party could be genuinely trying to reach agreement without having fully particularised its major claims.