Harbour City Ferries Pty Ltd v Maritime Union of Australia & Australian Maritime Officers' Union

[2014] FWC 1880

[2014] FWC 1880 [Note: An appeal pursuant to s.604 (C2014/3782) was lodged against this decision - refer to Full Bench decision dated 11 June 2014 [[2014] FWCFB 3858] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Harbour City Ferries Pty Ltd
v
Maritime Union of Australia & Australian Maritime Officers’ Union
(C2014/3463)

COMMISSIONER CAMBRIDGE SYDNEY, 20 MARCH 2014

S.418 Industrial action.

Application for an Order to stop industrial action.

[1] This is the edited text of an extempore Decision made in transcript during proceedings held on 19 March 2014.

[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 occurring, or threatened, or impending, or probable, or being organised, be stopped and not occur.

[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 the 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;

The 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) The 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, the FWC does not have to specify the particular industrial action.

(4) If the 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;

The 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 Harbour City Ferries Pty Ltd (HCF). The application seeks an Order against the Maritime Union of Australia (the MUA) and the Australian Maritime Officers’ Union (AMOU).

[5] In so much as the application has been pursued against the AMOU, there is an absence of evidence upon which a finding could be made that the AMOU or any of its officers or members has engaged in industrial action of any manifestation. Consequently, the application to the extent that it has been taken against the AMOU is refused.

[6] The industrial action that has been identified and which is the subject of the application relates to health and safety concerns of the MUA and its members. Consequently the definition of industrial action and the exclusion from that definition of action taken in respect to a reasonable concern about an imminent risk to health or safety has become central to the determination of the application.

[7] 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).”

[8] The determination of the application can be distilled to a question as to whether the MUA and its members have a reasonable concern about an imminent risk to health and safety arising from particular work on the vessel Collaroy whilst that vessel is involved in what has been referred to as fuelling or bunkering operations. It is unnecessary to describe in detail the particular work in question except to note that the contest involves the number of general purpose hand (GPH) employees who may be required to be on the vessel in order for the work to be performed safely.

[9] The evidence provided during the Hearing has established that the alleged health and safety concerns have been raised on the basis that the MUA and its members assert that 4 GPH employees rather than 3 should be engaged on the Collaroy when it undertakes the fuelling operations.

[10] The evidence presented during the Hearing does not support the assertions of the MUA and its members. The various regulatory requirements in respect to safe working have endorsed that the work in question is able to be performed safely with 3 GPH employees. The assertions of the MUA and its members are of the nature of a staffing level dispute as opposed to any reasonable concern of an employee about an imminent risk to his or her health and safety.

[11] Further, there has been no direct evidence provided that any employee of HCF had any concern, reasonable or otherwise, about an imminent risk to his or her health or safety. The evidence has been confined to an elaboration of the concerns raised by an official of the MUA, Mr Garrett, when he advised representatives of HCF, inter alia, “that the MUA would not be allowing the Collaroy to be released from Balmain Shipyard for fuelling with only three GPH staff.”  1

[12] Consequently for the reasons set out above, I do not believe that the industrial action is based on a reasonable concern of an employee about an imminent risk to health or safety. The industrial action taken by the MUA and its members is not excluded from the definition of industrial action by virtue of any operation of subsection 19(2)(c)(i) of the Act.

[13] It is irrelevant whether industrial action is continuing, or to contemplate the probability or possibility of further industrial action. An applicant seeking Orders under s.418 may do so as a preventative measure in circumstances where an established recourse to unprotected industrial action occurred in one set of circumstances and is likely to be taken again in a repeat set of those circumstances or in a completely different set of circumstances. Essentially, if the evidence establishes that unprotected industrial action occurred then the application is made out and the Act entitles the applicant to Orders. Therefore, pursuant to s.418 of the Act, the Commission must Order that the industrial action stop.

[14] The Orders [PR548814] as broadly sought by Harbour City Ferries are granted and issued separately.

COMMISSIONER

Appearances:

S Price, Solicitor with D Moy for Harbour City Ferries Pty Ltd

A Slevin Counsel with A Jacka and K Bolwell for the Maritime Union of Australia.

A Howell Counsel for the Australian Maritime Officers’ Union

Hearing details:

2014.

Sydney:

March, 18-19.

 1   Form F14 - Point 4 - Grounds, paragraph 4.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR548813>