[2020] FWC 3020

The attached document replaces the document previously issued with the above code on 27 October 2020.

Details: Correction to representatives named as appearing.

R James
Associate to Deputy President Beaumont

Dated 28 October 2020

[2020] FWC 3020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Odyssey Marine Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(RE2020/150)

DEPUTY PRESIDENT BEAUMONT

PERTH, 27 OCTOBER 2020

Dispute under s 505 of the Fair Work Act 2009 (Cth) - Alleged dispute concerning entering an Odyssey marine or crewed vessel in the port of Port Hedland – whether dispute exists at all – whether suitable room or area exists pursuant to s 492(3).

[1] Over the course of a couple of days in February 2020, Mr O’Brien, an Organiser of the Construction, Forestry, Maritime, Mining and Energy Union (the Union), provided Odyssey Marine Pty Ltd (Odyssey) with right of entry notices to enter Odyssey owned or crewed vessels in the port of Port Hedland, Western Australia (Port), and at Odyssey’s yard at 15 Anderson Street, Port Hedland. The entries were for the purpose of holding discussions with members and potential members of the Union pursuant to s 484 of the Fair Work Act 2009 (Cth) (the Act).

[2] Odyssey operates a logistics and marine support services business servicing various commercial contracts of the Pilbara Ports Authority (the PPA) and other commercial users, primarily in the Port. 1 At the relevant time, it had 11 vessels operating at the Port, crewed by employees and labour hire workers.

[3] Odyssey said the discussions with the Union (under s 484) ought to be held in the crib room at its yard (which had moved to Lot 1431 Mackey Street, Port Hedland) (the Yard). The Yard is approximately a two minute drive from the Nelson Point Tug Pens, which is where all, bar two, of Odyssey’s vessels are berthed.

[4] Odyssey’s Mr Hedges, the company’s Marine Manager, gave evidence concerning the infrastructure and operations of the 11 vessels. The Union took no issue with Mr Hedges’ evidence concerning nine of the vessels, which, in short, did not have a room or area capable of satisfying the descriptions in ss 492(3)(a) and (b). However, with regards to the two remaining vessels, the Amplitude and the Puriya, there remained the issue of whether there was a room or area capable of satisfying the criteria set out in s 492(3) of the Act.

[5] Having made the application under s 505 of the Act to deal with a right of entry dispute, Odyssey submitted that, despite purported genuine efforts to do so, the parties were unable to agree the location for discussions.

[6] The Union, however, disagreed that there was a dispute between it and Odyssey over the application of s 492(3) of the Act (which details the location for holding interviews and discussions, and what to do if the permit holder and occupier cannot agree…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 3020
Decision Date: 27 OCTOBER 2020

CaseChat Overview and Summary

The Fair Work Commission dealt with an application under s 505 of the Fair Work Act 2009 (Cth) to resolve a dispute between Odyssey Marine Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute concerned the exercise of a right of entry by the Union to enter the premises of Odyssey to hold discussions with its employees. The Union claimed that there was a room or area on each of the eleven vessels owned by Odyssey, that met the requirements of s 492(3) of the Act. This section sets out the location in which the permit holder must conduct interviews or hold discussions if the permit holder and the occupier cannot agree on the room or area of the premises. Odyssey argued that there was no such room or area on any of its vessels, and that the only location in which the discussions could be held was in the crib room at the yard. The Commission found that, with the exception of the two Survey Vessels, none of the remaining Vessels contained a room or area capable of satisfying s 492(3). Whilst the Survey Vessels were capable of doing so, that capability was confined to those periods in which they were engaged in 24/7 operations, which on this occasion they were not so engaged. The Commission found that there was no dispute as to the operation of s 521D of the Act, and dismissed the application for an order directing that discussions be held by mobile telephone between the permit holder and the relevant employees located onboard the Survey Vessel.

Orders