DP World (Fremantle) Limited v The Maritime Union of Australia

[2013] FWC 10145

[2013] FWC 10145 Note: An appeal pursuant to s.604 (C2013/7852) was lodged against this decision - refer to Full Bench decision dated 3 January 2014 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

DP World (Fremantle) Limited
v
The Maritime Union of Australia
(C2013/7801)

COMMISSIONER CAMBRIDGE SYDNEY, 23 DECEMBER 2013

Application for an Order to stop industrial action - industrial action threatened, impending or probable - definition of industrial action - alleged covert industrial action - individuals refusing to volunteer for work not industrial action in the circumstances - questionable efficacy of any Order - application refused.

[1] This is the edited text of an extempore Decision made in transcript during proceedings held on 23 December 2013.

[2] This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order that industrial action that is threatened, impending or probable not occur or not be organised.

[3] Section 418 of the Act is in the following terms:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to FWC 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;

FWC 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) FWC 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.

(3) In making the order, FWC does not have to specify the particular industrial action.

(4) If FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[4] The application has been made by DP World (Fremantle) Limited (the employer) and it seeks an Order against the Maritime Union of Australia (the MUA) and members of the MUA who are employed at the employer’s terminal located at Fremantle, Western Australia.

[5] The industrial action that is the subject of the application relates to what is described as covert industrial action which is alleged to have been and continues to be organised and encouraged by the MUA and conducted by the members of the MUA employed by the employer. There are a variety of particular aspects of the alleged covert industrial action which in combination have caused identifiable reductions in productivity. A campaign of covert industrial action has allegedly been implemented since about late October this year.

[6] The Hearing of this application has been arranged at very short notice. The respondent, the MUA, has been unable to properly prepare its case in the time available and is consequently placed at considerable disadvantage. These circumstances frequently occur because of the nature of applications taken to stop industrial action. The prospects for an interim Determination and interim Orders under s.420 of the Act have been advanced by the applicant. For a variety of reasons including logistical support complications including capacity inadequacies, I have decided against adopting the pathway involving interim Orders.

[7] Instead I have decided to focus upon the most time sensitive aspect of the current application and determine that facet of the application and in doing so anticipate that other aspects of the matter might be dealt with in other proceedings at a more convenient time.

[8] The urgent aspect of the application relates to the alleged covert industrial action which involves the refusal of employees to volunteer for work for extended shifts and more particularly, for work on Christmas and New Year recognised holidays (holiday work). It has been asserted that the levels of volunteering for this work are not in accordance with previous year’s levels and forms part of the campaign of activities associated with covert industrial action.

[9] Significant cost imposts are created by the insufficient numbers of volunteers for holiday work. The delays that the lower levels of volunteering cause when coupled with various other aspects of the alleged campaign of covert industrial action, cause significant direct costs for the employer. Delay with the operation of shipping activities causes significant financial costs which ultimately are passed on to consumers and producers. These inefficiency costs should be avoided wherever and whenever possible.

[10] However, whether the particular aspect of the campaign of covert industrial action involving lower levels of volunteering for holiday work, would meet the legislative definition of industrial action is an interesting question. The definition of industrial action is found at section 19 of the Act which is in the following terms:

“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.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[11] The determination of the urgent aspect of the application firstly requires consideration as to whether a refusal to volunteer for holiday work in accordance with previous levels of preparedness to volunteer would satisfy the meaning of industrial action as contained in s.19 of the Act.

[12] The relevant parts of s.19 would seem to be those words contained in subsection (1) (a) which state, “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” and those words appearing in subsection (1) (b) which read, “a ban, limitation or restriction ...on the acceptance of or offering for work by an employee”.

[13] The evidence provided during the Hearing has suggested that the significantly lower levels of volunteering for extended shifts and holiday work are likely components of the campaign of covert industrial action which has been underway since about late October. Given the timing of the application, there has not been sufficient time to permit adequate Hearing of all aspects of the alleged campaign of covert industrial action. Nevertheless, the intrinsic nature of volunteering particularly for work on Christmas and New Year holidays in the context of other than an essential service industry, operates strongly against a conclusion that a refusal to volunteer for such work should be construed as industrial action. It must also be recognised that the refusal to volunteer means that an individual forgoes the attractive penalty payments that apply to the holiday work.

[14] Secondly, given that the campaign of covert industrial action has allegedly been conducted since late October and this application was made yesterday, Sunday 22 December, if the refusal to volunteer to work on Christmas and New Year holidays was held to satisfy the meaning of industrial action, there would appear to be little practical efficacy that would likely be obtained from any successful outcome. In practical terms, it is difficult to contemplate how there might be compliance with an Order as sought in respect to the urgent aspect of this application, which would, in effect, operate to somehow compel individuals to volunteer for holiday work at very short notice.

[15] Stopping covert industrial action by force of legally binding Order has some inherent difficulties. In this instance in respect to the volunteering for holiday work, some obvious problems can be contemplated. For example, which individuals would be required to volunteer presents as something of a dilemma. How many individuals would need to volunteer in order to comply with an Order? And what of the individuals who still do not volunteer even if a sufficient number do volunteer consistent with previous years?

[16] There are some difficulties which can be contemplated with any assessment as to the extent to which covert industrial action would be stopped by an Order. The prospect that individuals would conduct themselves with more efficient work practice because of an Order introduces something of a nebulous achievement. The spectre of assessing the briskness of individuals walking across the yard arises. One person without enough spring in his or her step might be in breach of a stop Order?

[17] I acknowledge that other aspects of the alleged campaign of covert industrial action may be more appropriately addressed if need be, by a less time critical application. However there remains some concern as to whether Orders to stop covert industrial action will provide any enduring resolution of the underlying, and apparently entrenched animosities that characterise the relationships between employees, their Union, and employers in this industry.

[18] Consequently, on balance, I am not satisfied that the alleged industrial action to which the urgent application made in this instance is directed, meets the definition of industrial action as contained in s.19 of the Act. Therefore the application is refused and the proceedings concluded accordingly.

COMMISSIONER

Appearances:

Mr D Perry, solicitor, appeared on behalf of DP World (Fremantle) Limited;

Mr L Edmonds, appeared on behalf of the Maritime Union of Australia.

Hearing details:

2013.

Sydney (via Video Link to Perth):

December, 23.

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