Boskalis Australia Pty Limited v Maritime Union of Australia, The
[2010] FWA 7508
•30 SEPTEMBER 2010
[2010] FWA 7508 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Boskalis Australia Pty Limited
v
Maritime Union of Australia, The
(C2010/4864)
COMMISSIONER CLOGHAN | PERTH, 30 SEPTEMBER 2010 |
Industrial action.
[1] On 9 September 2010, Boskalis Australia Pty Ltd (“the Applicant”) made application for an order to stop unprotected industrial action pursuant to s.418 of the Fair Work Act 2009 (“the Act”).
[2] The order is sought against:
- the Maritime Union of Australia (“MUA”);
- officials, delegates, employees, members and agents of the MUA;
- Chris Cain, State Secretary, MUA Western Australia;
- Peter Smith, MUA IR Delegate; and
- Named employees of Boskalis Australia Pty Ltd.
[3] Put shortly, the unprotected industrial action relates to MUA members who are employees of the Employer on the MCSV Finnmarken who are refusing lawful directions to load onto the vessel top up supplies of various light provisions including, but not limited to, milk, eggs, fruit and vegetables.
[4] Evidence for the Applicant was given by Captain Ian Waters, Master of the Finnmarken and Mr Lawrence Rob, National HR/IR Manager of Boskalis Australia Pty Ltd. Mr Will Tracey, Assistant Secretary, MUA, gave evidence for the respondent Union.
BACKGROUND
[5] The Employer advises that it is contracted to the Gorgon Project to carry out dredging operations off Barrow Island.
[6] The Gorgon Project will develop the Greater Gordon Area gas fields located about 130 kilometres off the north-west coast of Western Australia. The Project includes the construction of a 15 million tonne per annum Liquefied Natural Gas (“LNG”) plant on Barrow Island and a domestic gas plant with the capacity to provide 300 terajoules to supply gas to Western Australia.
[7] Gorgon LNG will be off loaded via a four kilometre long loading jetty for transport to international markets. The domestic gas will be piped to the Western Australia mainland.
[8] Boskalis Australia Pty Ltd is contracted, among other works, to complete dredging work for the approach channel, turning basin, berthing pockets and reclamation associated with the construction of a Materials Offloading Facility. Further, it is contracted to carry out dredging for the LNG jetty area including approach channel, turning basin and berth pockets.
[9] The Boskalis dredging contract commenced at the beginning of 2010 and will run for approximately 18 months. The dredging contract involves a number of propelled and non-propelled vessels, and includes the provision of floating residential and business accommodation.
[10] Floating accommodation for certain Boskalis dredging crews and management personnel is provided by the support vessel Finnmarken. The Finnmarken is an eight year old luxury cruise ship and is owned and operated by Hurtigruten Pty Ltd. Boskalis is the staffing agent and supplies crew for the Finnmarken. The Finnmarken is currently moored 3.5 nautical miles off Barrow Island and is supporting the Boskalis dredging operations.
[11] The provision of the Finnmarken is pursuant to a contract between Hurtigruten Pty Ltd and Boskalis.
LEGISLATIVE FRAMEWORK
[12] The Act provides at the relevant parts as follows:
- Section 19 - Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
- Section 418 - FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
- Section 420 - Interim orders etc.
Application must be determined within 2 days
(1) As far as practicable, FWA must determine an application for an order under section 418 or 419 within 2 days after the application is made.
Interim orders
(2) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).
(3) However, FWA must not make the interim order if FWA is satisfied that it would be contrary to the public interest to do so.
(4) In making the interim order, FWA does not have to specify the particular industrial action.
(5) An interim order continues in operation until the application is determined.
APPLICANT’S CASE
[13] The Applicant’s case commenced with Captain Waters who shares the captaincy of the Finnmarken with Captain Paul Hermann. For the purpose of this dispute, Captain Hermann’s roster ended on Wednesday 8 September 2010 and Captain Waters started his roster on the same day.
[14] Captain Waters has been working in the maritime industry and merchant navy for 25 years. During those 25 years, he has worked his way up from Able Seaman to Master Mariner (Class 1 Certificate). Captain Waters has been the Master of various vessels and a Master Mariner for 15 years 1.
[15] Captain Waters has responsibility for the Finnmarken, including managing the crew and all its activities, including the loading and unloading of persons, stores and any other materials on and off the vessel 2.
[16] Captain Waters’ responsibilities include all matters of safety on and about the Finnmarken 3.
[17] Moored alongside the Finnmarken, except in unfavourable weather, is the vessel, The Grace. It is intended that the loading of light stores would be carried out by a supply vessel unloading its supplies onto The Grace. The supplies would then be transferred to the Finnmarken via a gangway into supply hatches.
[18] Captain Waters gave evidence:
“The MUA members on the Finnmarken, together with Peter Smith, the MUA IR delegate on the Finnmarken, have outright refused to have anything to do with the storing of the Finnmarken manually and are not prepared to consult with me and Boskalis staff concerning the normal planning and other steps that are involved in such an activity.” 4
[19] By normal planning and activity, Captain Waters is referring to the necessity of ensuring the loading of light stores, is carried out correctly and safely, through a Job Hazard Analysis (“JHA”) and staff and tool box meetings. In summary, Captain Waters gave evidence:
“...we can't even progress to taking the first step in this case because they're not willing to even consider that. So it's just a sharp, short ‘no’ so they're not going to do any loading on the Finnmarken.” 5
[20] Captain Waters was absolutely clear that MUA members were not prepared to discuss the loading of light stores onto the Finnmarken.
[21] Until recently, the vessel Casilis was moored permanently alongside the Finnmarken. The Casilis has a crane. Stores for the Finnmarken were transferred from the supply vessel, to the Casilis by crane, and subsequently loaded by a forklift truck onto the Finnmarken. As the Casilis has been damaged and returned to port, it has been replaced by The Grace 6. While The Grace has a crane, it does not have forklift capacity, hence stores have to be manually transferred to the Finnmarken via the gangway7.
[22] Captain Waters gave evidence that:
“We're transferring light stores all the time, garbage and everything, and all sorts of things from - you know, light general stores you would transfer down the gangway all the time.” 8
[23] However, this was the first time fruit, vegetables, milk and eggs are being transferred from The Grace onto the Finnmarken 9.
[24] Captain Waters agreed that safety issues have been raised by the MUA and would require consultation with employees to ensure that the procedure is done safely 10 but could not progress “because they’re not willing to sit down on (sic) the table to discuss the first step”11.
[25] Captain Waters had a view how the procedure for transferring the stores from The Grace to the Finnmarken, which he described as a “chain of men...and you pass one box to the other” 12. Captain Waters stated that this is what usually happens.
[26] Mr Rob gave evidence for the Applicant that the use of the vessel The Grace is only temporary, as would be the manual handling up the gangway of light stores 13.
[27] When asked of his understanding of what the crew were instructed by Captain Hermann, and how they were to transfer stores, Mr Rob answered:
“...I believe they didn't actually get a chance to describe that. If I look at Paul Hermann's original report, he said that the crew were asked to do this storing, at which time Alan Furlong asked for a break, and they came back from the break and the crew said that it was something that they wouldn't consider, and at the time the captain offered training around how to perform the operation safely, and I would have expected at that time that a risk assessment be performed, but it wasn't done before these crew had just outright refused to - - -“ 14
and
“Okay?---And then at later date I asked - Ian Waters came on board - Captain Waters relieved Paul Hermann, and he approached it in the same way as Paul Hermann did and spoke to the crew about performing the duty, and ultimately again they refused to do it and (indistinct) process at levels 1 to 5 was followed and they said that the crew were just refusing. That's really my area. Luke is advising whether or not the industrial agreement has been followed, not whether or not the operation is safe.” 15
Further,
“Were there any other options presented by the company as to how these stores might be moved?---I believed the intention was to discuss it but that didn't discussion didn't occur in any depth.” 16
[28] Mr Rob was questioned on the interplay between these proceedings and the applicability of Clause 11 Settlement of Disputes Procedure (“SDP”) in the Agreement. In his witness statement, Mr Rob asserts that the MUA and its members have taken no steps to properly follow the SDP. In cross examination, it was expressed as follows:
“So what steps did you take to encourage people to participate in accordance with the dispute resolution procedure?---I highlighted the relevant clause to the master and asked him to discuss it with the crew to see whether we had followed the procedure correctly and he said that that wasn't possible because the crew were not willing to consider the option of storing the vessel manually.” 17
MUA CASE
[29] Mr Tracey gave evidence for the Respondent that the MUA, and the employees involved in the loading procedures, are being asked to undertake duties which raise issues of safety. These safety concerns were raised with Captain Hermann. The safety matters were dismissed and consequently, the concerns were set out in an email written on 9 September 2010 and sighted by the Employer shortly afterwards. Further, that the loading procedure was in breach of Chevron and Boskalis’ loading policies and procedures. 18
[30] The MUA submitted that both Boskalis and Chevron have policies which require “three points of contact” 19 when crossing a gangway. Evidence was presented, by way of a photographic image, to confirm the policy20, however, its application in this dispute is yet to be explored, as employees have refused to engage in discussion as to the most appropriate and safe way of transferring the light stores from The Grace to the Finnmarken.
[31] Mr Tracey’s involvement in the dispute arose as a result of receiving telephone calls from MUA members on the Finnmarken regarding the manual handling of stores. 21 The advice provided by the MUA to employees, was to put those concerns through the Health, Safety and Environment Committee in the first instance, and if necessary, directly to the Master of the vessel.
[32] Consequently, the MUA asserts that the dispute between the parties is being dealt with in accordance with clause 11.2 of the Settlement of Disputes Procedure in the Agreement.
[33] Mr Tracey gave evidence that he had visited the Finnmarken in South Africa but had not been on the vessel since it being moored off Barrow Island 22. Mr Tracey also conceded that he had not seen, or been on, The Grace.23
[34] The evidence of Captain Waters regarding the current loading of light stores and other material was put to Mr Tracey, who responded as follows:
“...there's been movement of goods and materials from supply vessels onto the Grace and then onto the Finnmarken?---Not to my knowledge. I don't know. I can't say one way or the other, but I would assume that it's been done in accordance with both Chevron and Boskalis' policies and procedures, as indicated by that sign.” 24
[35] Further, in cross examination it was put:
“The evidence is that they didn't want to have anything to do with the loading at all and they didn't want to participate in the process. They didn't want to participate in the planning?---They didn't want to have anything to do with the loading in the manner that had been suggested by the company. They put concerns about the process that the company wanted to put in place and those concerns were dismissed. As a result of having those verbal concerns dismissed, the guys then put - - -“ 25
“And how do you know that?---Because that's what I was told.” 26
“When were you told that?---We were told - we told the guys to put it on Monday. They came back to us Wednesday and said that those concerns had been dismissed. As a result of that we said that we would draw up the concerns in writing so that those concerns could be put to the master in writing. We did that on Thursday afternoon.” 27
[36] Mr Tracey gave evidence that the MUA had advised its members on board the Finnmarken to put its concerns on “Monday” (presumably 6 September 2010). On “Wednesday” (presumably 8 September 2010) the MUA was advised that those concerns had been dismissed. As a result of the safety concerns being dismissed, the MUA advised its members that those concerns would be reduced to writing 28 -- which was done on 9 September 2010 at 5:51pm29.
[37] To complete the picture, this application to stop unprotected industrial action was registered by the Employer’s representative at 7:34pm on 9 September 2010, the same day as the email was sent by the MUA to its members on the Finnmarken.
[38] The email was provided to Captain Waters some time on 9 September 2010.
[39] While not a witness in the proceedings, a file note of Captain Hermann was provided to the Tribunal as Attachment 3 to the application, and tendered as “LRR3” to Mr Rob’s witness statement. The file note states:
“This afternoon approx 1310 (Friday 3rd September) I had a discussion with the MUA onboard with regards to storing the vessel on location (approx next weekend), it was explained to all present that the vessel needs to undertake a small top up of milk, eggs and fresh fruit and vegetables, before the barge returns and due to operational requirements of the vessel it is unable to return to Dampier. I presented the option of manual handling the stores from the grace, as Boskalis had a manual handling procedure and if needed training could be provided in manual handling. I ask those present for any other options to store the vessel on location.
At that stage Alan Furlong (the current H&S chairman) stated that they would like a ten minute break to discuss this matter with their members.
The discussion resumed after their break, Alan Furlong stated that they were disappointed to be going down this path again, and as this issue would not be resolved onboard, they would be referring this to the union on the beach and to follow the dispute resolution process as per the procedure.
I asked for this answer to be given to me in writing and the reply given by the CIR was that we don’t put anything in writing. Alan stated that you have three witness to this statement being Eric De Troye, Neil Stanesby and myself.
No options, reasons or solutions that I asked for were presented.
Those present at the first session
Paul Hermann, Neil Stanesby, Alan Furlong, Jack McCabe, Marc Stowell, Christine Nicholson, Paul Brown, Tom McQuaid, John Formosa
Those present at the second session
As above, as well as Eric De Troye, Shaun McQuaid.
“This is a true and accurate record of the discussion held to the best of my knowledge.” 30
DISCUSSION AND CONCLUSION
[40] The best evidence I have of this dispute is from Captain Waters who, in short, states that he is unable to load light stores onto the Finnmarken, because the employees are not willing to “sit down” and discuss the loading procedure, and pre-requisites to that procedure, to ensure that loading is done safely.
[41] I am unable to consider, let alone determine, whether the safety issues raised in this application are based on a reasonable concern by the employees about an imminent risk to their health; all I have is one email, which raises a number of issues by the Union’s Health and Safety Officer. Apart from no employees being called to give evidence, Captain Waters stated that the claims in the email were, “totally wrong” 31, the transfer of goods would be undertaken when the weather was suitable32, and “risk assessment and hazard analysis” will be completed for other concerns.
[42] While there was much discussion regarding the “three points of contact” when traversing a gangway, the discussion related to current practices concerning crew transfers and the manual loading of various goods. As no procedure had been determined for the transfer of light stores, onto the Finnmarken, its applicability was broad and contextual, but not demonstrable of imminent risk to an employee’s health or safety.
IS UNPROTECTED INDUSTRIAL ACTION TAKING PLACE?
[43] Industrial action by employees will only be protected if the relevant provisions of Part 3-3, Division 2 and 3 are applicable.
[44] The industrial action which is taking place is a refusal by MUA members and employees of the Employer, to be involved in the transfer and storing of light stores from a supply vessel to the Finnmarken via The Grace. As I have already set out in reasons for this Decision, the refusal extends to participation in the safe planning of the transfer of these light stores.
[45] Simply put, the evidence of Captain Waters is that the transfer of stores from one vessel to another is an ordinary occurrence of seafaring, and similar work has already occurred, in supplying the Finnmarken with other goods.
[46] Captain Waters was the only witness who gave direct evidence of the dispute. In view of his experience, qualifications and evidence that the transfer of goods is straightforward and a common occurrence, I am satisfied that Captain Waters is not attempting to foist an unsafe practice on employees but is seeking the engagement of employees to implement a safe and practical approach to the loading of the supplies.
[47] Mr Edmonds, for the MUA, asserts a number of reasons why the action of the employees is not industrial action for the purposes of s.19 of the Act.
[48] Firstly, he asserts the evidence is that this is the first occasion that employees have had to manually transfer this type of stores up the gangway. Consequently, the actions of the employees cannot be described as industrial action, as industrial action in the Act, means a departure from the performance of work by an employee in a manner in which it is customarily performed.
[49] Having heard the evidence of Captain Waters, I am unable to agree with such an approach to an interpretation of the Act. In my view, when the Act refers to “performance of work”, it means how the work is effected or executed and not whether, in this case, the goods being transferred from one vessel to another, are spare parts, luggage or light stores.
[50] Further, the second limb to s.19(1)(a) refers to the adoption of a practice, the result of which, is a “restriction”, “limitation” or “delay” in the performance of work. In this application, the refusal to effect the transfer of light store meets the ordinary definition of restricting, limiting, and consequently, delaying the delivery of the stores.
[51] With respect to s.19(2) of the Act, Mr Edmonds submits that there is no ban on the performance of work. I think this contention can be dealt with by saying that the evidence presented at the hearing, clearly demonstrates that the employees have refused to engage with Captain Waters (and previously with Captain Hermann) in the preparation and eventual transfer of light stores manually onto the Finnmarken.
[52] The MUA contend that there is no need to look at the exceptions to industrial action simply because there is no industrial action occurring at all at the moment 33. However, if I am satisfied that industrial action is taking place, the MUA asserts that the directions of the Employer are patently “unsafe”34.
[53] Notwithstanding this position, the only exhibit provided by the MUA relating to safety were in the email 35 and the oral evidence of Mr Tracey on the policy of “three points of contact”.
[54] In summary, the MUA put to the Tribunal:
“So the instructions that have been put forward are, we say, so manifestly improper and so manifestly unsafe that they can't, we say, be taken to be proper instructions for the performance of work. There's not a ban on the performance of work because there is, we say, no proper instruction to perform that work. If something is so obviously and manifestly unsafe then there can be no obligation to perform it. It's not a question of there having to be an imminent risk to health or safety. If an instruction is so manifestly improper then it can't be an appropriate instruction at all. It can't be a proper instruction to perform work at all. We say that that is the situation here.” 36
[55] When I apply the evidence to this assertion, I find the Employer unable to get to the first step of planning the procedure of the transfer of light stores. The “instructions” of the Employer is a desire to commence ordinary procedures to see how the transfer of light stores may be carried out safely. In my view, the necessary condition for the MUA to assert that what is “manifestly improper” or “manifestly unsafe”, is yet to occur.
[56] Finally, notwithstanding the assertion, in paragraph [54], I have considered the evidence as to whether the actions of the employees are based on a reasonable concern about an imminent risk to their health; there is no evidence to support such a proposition.
[57] In conclusion, at the end of the hearing, I was satisfied that unprotected industrial action was happening and probably would continue. Accordingly, for the reasons outlined above, the Order pursuant to s.418 of the Act was issued on 13 September 2010.
COMMISSIONER
Appearances:
Mr A Drake-Brockman with Mr C Boyle, DLA Phillips Fox for the Applicant.
Mr L Edmonds, W.G. McNally Jones Staff Lawyers for the MUA.
Hearing details:
2010
Perth:
13 September
1 Exhibit A1
2 Exhibit A1
3 Exhibit A1
4 Exhibit A1
5 PN 102
6 PN 175 to PN 179
7 PN 189
8 PN 212
9 OPN 215
10 PN 220
11 PN 233
12 PN 296
13 PN 436 and PN 438
14 PN 462
15 PN 463
16 PN 499
17 PN 611
18 PN 829
19 PN 208
20 Exhibit R2
21 PN 669
22 PN 716
23 PN 761 and PN 781
24 PN 796
25 PN 816
26 PN 817
27 PN 818
28 PN 818
29 Exhibit R2
30 Exhibit A2
31 PN 286
32 PN 291
33 PN 924
34 PN 926
35 Exhibit R2
36 PN 926
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