ASP Ship Management Pty Ltd v Maritime Union of Australia

[2015] FCA 1486

FEDERAL COURT OF AUSTRALIA

ASP Ship Management Pty Ltd v Maritime Union of Australia [2015] FCA 1486

Citation:	ASP Ship Management Pty Ltd v Maritime Union of Australia [2015] FCA 1486
Parties:	ASP SHIP MANAGEMENT PTY LTD v MARITIME UNION OF AUSTRALIA, ALLAN KELMAN, MARK JONES, DALE EATON, CRAIG GANIM, LIAM CONAGHAN, ZAC KINZETT, BRETT KOLPIN, WARREN HOPKINS, MICHAEL DONAGHY, RONALD BULLOCK, JAMES LAWRENCE, KRISTIAN HARRIS and GLYN CARSWELL
File number:	VID 836 of 2015
Judge:	NORTH J
Date of judgment:	8 December 2015
Catchwords:	INDUSTRIAL LAW – interlocutory injunctive relief under s 421(3) of the Fair Work Act 2009 (Cth) – restraining continuation of industrial action – refusal to follow lawful and reasonable direction to depart berth and sail to Singapore – refusal to undertake all work necessary for departure
Legislation:	Fair Work Act 2009 (Cth) ss 19(1), 418, 421(3)
Date of hearing:	8 December 2015
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Mr R Millar
Solicitor for the Applicant:	HWL Ebsworth
Counsel for the Respondents:	Mr M Harding
Solicitor for the Respondents:	Maurice Blackburn

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 836 of 2015

BETWEEN:

ASP SHIP MANAGEMENT PTY LTD
Applicant

AND:

MARITIME UNION OF AUSTRALIA
First Respondent

ALLAN KELMAN
Second Respondent

MARK JONES
Third Respondent

DALE EATON
Fourth Respondent

CRAIG GANIM
Fifth Respondent

LIAM CONAGHAN
Sixth Respondent

ZAC KINZETT
Seventh Respondent

BRETT KOLPIN
Eighth Respondent

WARREN HOPKINS
Ninth Respondent

MICHAEL DONAGHY
Tenth Respondent

RONALD BULLOCK
Eleventh Respondent

JAMES LAWRENCE
Twelfth Respondent

KRISTIAN HARRIS
Thirteenth Respondent

GLYN CARSWELL
Fourteenth Respondent

JUDGE:	NORTH J
DATE OF ORDER:	8 DECEMBER 2015
WHERE MADE:	MELBOURNE

UPON THE APPLICANT, BY ITS COUNSEL, UNDERTAKING:

(a)to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as the Court may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order made hereunder or any continuation, with or without variation, thereof; and

(b)to pay the compensation referred to in (a) above to the person there referred to;

THE COURT ORDERS THAT:

1.Until further order, the fourth, sixth, seventh and eighth respondents are restrained from engaging in industrial action.

2.Industrial action is defined as refusing or failing to follow a lawful and reasonable direction from the Applicant, for the MV Portland to depart its berth at the Port of Portland and to be sailed to Singapore or such other destination as is specified by the Applicant, and to undertake all work necessary for that departure.

3.The matter be otherwise adjourned to 10.15am on 3 February 2016.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 836 of 2015

BETWEEN:

ASP SHIP MANAGEMENT PTY LTD
Applicant

AND:

MARITIME UNION OF AUSTRALIA
First Respondent

ALLAN KELMAN
Second Respondent

MARK JONES
Third Respondent

DALE EATON
Fourth Respondent

CRAIG GANIM
Fifth Respondent

LIAM CONAGHAN
Sixth Respondent

ZAC KINZETT
Seventh Respondent

BRETT KOLPIN
Eighth Respondent

WARREN HOPKINS
Ninth Respondent

MICHAEL DONAGHY
Tenth Respondent

RONALD BULLOCK
Eleventh Respondent

JAMES LAWRENCE
Twelfth Respondent

KRISTIAN HARRIS
Thirteenth Respondent

GLYN CARSWELL
Fourteenth Respondent

JUDGE:	NORTH J
DATE:	8 DECEMBER 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, ASP Ship Management Proprietary Limited, provides the crews for the MV Portland.  The MV Portland is programmed to leave the Port of Portland to be sailed to Singapore.  A dispute has arisen concerning the movement of the ship to Singapore.  That dispute concerns the sale of the ship in Singapore and the consequent ending of employment for the crews previously engaged on the ship.

2. The crews have, in recent times, refused to sail the MV Portland, and in consequence, the Fair Work Commission made an order on 17 November 2015, under s 418 of the Fair Work Act 2009 (Cth) (the Act), requiring them to cease industrial action. The particular industrial action is defined in s 19(1)(b) as a ban, limitation or restriction on the performance of work. Despite the order of the Commission, the ship has still not sailed.

3. Consequently, the applicant has brought a proceeding in this Court for an injunction under s 421(3) of the Act. It contends that the Court should be satisfied that, for the purposes of today, four members of the crew have contravened a term of the order.

4. Those four crew members are the fourth, sixth, seventh and eighth respondents. They are presently on board the ship. Although the proceeding has been initiated against thirteen crew members, orders against the fourth, sixth, seventh and eighth respondents would allow the ship to sail. There is evidence before the Court that those four respondents have, within the last 24 hours, refused a direction to cooperate in sailing the ship from Portland to Singapore. Consequently, the basis for an injunction under s 421(3) of the Act is made out. There is evidence before the Court that those four respondents were personally served with the originating application and were notified of the hearing of the interlocutory injunction and its adjournment. They have not attended the hearing on either occasion.

5. Consequently, the Court will order, under s 421(3)(b) of the Act, that the fourth, sixth, seventh and eighth respondents immediately cease their industrial action. Industrial action will be defined in the orders, to ensure that the four respondents understand that they are now not entitled to refuse to man the ship for the purpose of it leaving to sail to Singapore.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       22 December 2015