Maritime Union of Australia, The v ASP Ship Management Pty Ltd

[2015] FWC 8015

[2015] FWC 8015

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

Maritime Union of Australia, The
v
ASP Ship Management Pty Ltd
(C2015/7356)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 NOVEMBER 2015

Appeal against decision [[2015] FWC 7898] of Commissioner Cambridge at Sydney on 17 November 2015 in matter number C2015/7314.

[1] An order directing employees engaged to work on board the MV Portland by APS Ship Management who are members of or eligible to be members of the MUA to stop all industrial action that is happening at the time the order came into effect was issued on 17 November 2015. 1 A similar order directing the MUA to immediately stop organising the industrial action by the employees was also made.2

[2] The MUA have appealed the making of this order and have sought a stay of the order. On 20 November 2015, I granted the stay order 3 and these are my reasons.

[3] The grounds of appeal filed by the MUA are as follows:

1. The Commissioner erred in finding that the refusal of employees to perform work so as to enable the vessel M.V. Portland to sail to Singapore was industrial action.

2. The Commissioner erred in finding that industrial action was being organised by the MUA.

3. The Commissioner erred in finding that the direction of the respondent to sail the M.V. Portland to Singapore for hand over to the new owner was a lawful direction.

4. The Commissioner erred in finding that the direction of the respondent to sail the M.V. Portland to Singapore for hand over to the new owner was a reasonable direction.

5. The Commissioner did not afford the appellant natural justice by failing to allow it to bring evidence about the reasonableness of the direction.

6. Such other grounds as the Commission sees fit.

[4] The grounds that it was in the public interest to grant the appeal are as follows:

1. The appeal raises issues going to the jurisdiction of the Commission in that jurisdictional prerequisite that there was industrial action happening; threatened, impending or probable; or, being organised was not present.

2. The appeal raises issues going to the jurisdiction of the Commission as there was a breach of procedural fairness.

3. The Decision at first instance is attended with sufficient doubt to warrant its reconsideration.

4. The Decision at first instance manifests an injustice and it is in the public interest that the significant errors contained in the decision at first instance be corrected.

[5] There was no dispute at the stay hearing that the test for granting a stay order is the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, and the balance of convenience favours the granting of a stay. 4

[6] In seeking a stay of the decision and order, it is necessary for the MUA to establish that there is an arguable case both on permission to appeal and the merits of the appeal.

The nature of the appeal

[7] The Full Bench in MUA v Patrick Stevedores Holdings Pty Limited 5 held that the nature of appeal against an order under s.418 requires the establishment of a House v The King6 error:

“[11] Because the jurisdictional fact requirement in s.418(1) is founded upon the Commission member’s perception about the specified matters, and involves to a significant degree an evaluative assessment with a degree of subjectivity (including determining whether particular types of conduct constitute industrial action as defined, and whether industrial action is “threatened, impending or probable”), the decision-making process under the subsection can be characterised as discretionary in the sense discussed in Coal and Allied. Accordingly we consider that in this appeal we should not interfere with the findings concerning the s.418(1) jurisdictional prerequisites in the Decision unless House v The King error is identified.” 7

Permission to appeal

[8] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the public interest to do so.  In GlaxoSmithKline Australia Pty Ltd v Colin Makin, 8 a Full Bench summarised the concept of public interest in the following terms:

"Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."

The Direction was unlawful

[9] The MUA submitted that there was an arguable case that:

1. The direction given to employees to sail the ship to Singapore was unlawful.

[10] It was submitted that the ASP Ship Management Pty Limited Seagoing Ratings Enterprise Agreement 2012 (the Agreement), which was incorporated into the contract of employment, only applied to the vessel when “the vessels continue to operate in the trade.” 9

[11] The MUA submitted that the evidence before the Commission at first instance established that “the MV Portland was scheduled to sale from Portland, Victoria to Singapore (and thereby depart the Australian trade) at 10.00am on 14 November 2015.” 10 The employees had been advised that their positions were to be made redundant because the ship is to sail to Singapore for hand over to a new owner.11 It is not contested that the voyage would not involve the carriage of persons or cargo.12

[12] The MUA contended that the direction given to employees was not a direction to perform work under the Agreement. It further submitted that because the Agreement was incorporated into the contract of employment, the contract was confined to work on the Portland while the vessel continued to operate in the trade. It submitted that direction to sail the vessel to Singapore was outside the scope of employment and hence was not industrial action.

[13] The MUA further submitted that the direction was unreasonable because it was given to employees at late notice; the details of the voyage were not provided and the employees were not told what passage the vessel would take; the length of the stay in Singapore; the accommodation arrangements in Singapore and the repatriation arrangements.

[14] ASP submitted that the vessel was in trade as long as ASP is contacted to crew the vessel for Alcoa, whatever the purpose of the voyage. It submitted that even if the MUA was correct, then that would mean that the Agreement does not apply and that was what Commissioner Cambridge found. 13

[15] Further, ASP submitted that the Agreement contemplated other than in trade journeys. As it made express provision for journeys overseas. For example, clause 10.2 of the Agreement provides for the recovery of leave in advance where this has resulted from a vessel’s irregular or oversees voyaging pattern. Clause 12.2.3 provides that a crew change can take place earlier if the vessel was departing for an overseas port.

[16] ASP submitted that the employees are still refusing to perform the full range of duties as directed.

[17] I find that there is an arguable case that the Agreement does not apply to a voyage which is not in trade. It is clear that the words in clause 4 of the Agreement must be given some meaning. They are clearly words of limitation. However, I am unable to accept the submission that this means that there is an arguable case that the employees cannot be directed to sail the ship to Singapore. The consequence of this submission is that the Agreement would not apply.

[18] The MUA also submitted that the direction was not lawful because there was not right under the contract of employment for the employer to direct the employees to sail to Singapore. It submitted that this was not the work for which the employees were engaged.

[19] The contract of employment was before Commissioner Cambridge. 14 The terms of the Agreement are incorporated into the contract of employment of the employees. The terms of the contract are not particularly detailed. None of the other terms of the contract deal with the issue that was before Commissioner Cambridge.

[20] If, as the MUA contend, the Agreement as incorporated into the contract of employment has no application, there is no express term in the contract of employment which provides that the employees can be directed to sail the vessel to Singapore. There is an arguable case therefore that the direction to perform this work is not lawful and therefore the employees are not engaged in industrial action.

[21] Commissioner Cambridge considered the submissions of the MUA in relation to the coverage of the Agreement and determined that the relevant instrument may not apply to the journey to Singapore “could operate to validate unprotected industrial action.” 15 However, it is not clear from the decision that Commissioner Cambridge considered whether the contract of employment between the employees and ASP permitted such a direction. In not doing so, there is an arguable case that Commissioner Cambridge erred by failing to take into account whether the direction was lawful under the contract of employment and hence a failure to perform the work was not industrial action.

Error in finding that the MUA was organising the industrial action.

[22] Because of the conclusion set out above, I accept that there is an arguable case that because the action was not industrial action and that Commissioner Cambridge erred in reaching this conclusion, there is an arguable case the MUA did not organise the industrial action.

Procedural Fairness

[23] The MUA applied at the hearing before Commissioner Cambridge for an adjournment, which was denied. The MUA submitted that it was only provided with a copy of the evidence relied upon by ASP at the commencement of the proceedings. Commissioner Cambridge addressed this issue at paragraph [7] of his decision. The decision to grant an adjournment is a discretionary decision. The MUA and the employees had been notified of the hearing on 14 November 2015. The argument that the MUA submitted that it was denied the opportunity to run was that the direction to sail the vessel to Singapore was unreasonable and they required an opportunity to take instructions. However, the MUA and the employees were on notice since 14 November 2015 that ASP considered the conduct of the employees to be a breach of their employment contracts. The evidence relied upon by ASP did not address this issue. The late service of the evidence did not prevent the MUA from seeking instructions between 14 and 17 November 2015 in relation to the evidence and the submissions it wished to put that the direction, in addition to being unlawful, was unreasonable. There was nothing to prevent the MUA calling witnesses at the hearing to present this evidence.

[24] Further, the Commission is required to deal with s.418 matters promptly. The evidence relied upon by ASP contained no information that would have taken the MUA by surprise as it did no more than provide a chronology of events. The matter was not listed for hearing until 17 November 2015.

[25] I am not satisfied on the material before me at this hearing of the stay application that there is an arguable case that the MUA was denied procedural fairness.

Permission to appeal

[26] No submissions were made on this at the hearing. The MUA’s application sets out the basis of their contention that permission to appeal should be granted. I accept that on the basis of the notice of appeal that there is an arguable case that permission to appeal would be granted.

Balance of Convenience

[27] ASP submitted that “it is self-evident that the continuation of the industrial action, with the vessel remaining berthed in Portland, is at substantial cost, both to ASP Ship Management and potentially to the owner of the vessel.” 16 It submitted that there is no inconvenience to employees as they will be paid for the work they perform.

[28] The MUA submitted that there was no evidence before the Commission to support the allegation of substantial cost.

[29] The MUA submitted that if a stay is not granted, the ship will sail and the utility of the appeal will disappear. It submitted that the stay is necessary to preserve the subject matter of the appeal.

[30] The MUA further submitted that unless the stay is granted, the employees will be required to perform work that they are not otherwise obliged to do. It submitted that there have been no negotiations as to the appropriate remuneration or other terms and conditions for the performance of that work. In contrast, ASP submitted that the Agreement would apply.

[31] I accept the submissions of the MUA that the balance of convenience favours the making of the stay order. I am satisfied that the stay is necessary to preserve the subject matter of the appeal. There is no evidence before the Commission that would enable a finding that there is a substantial cost to ASP. At the hearing, the MUA advised that it could be ready to run its case on appeal at short notice and ASP advised that if a stay was granted, it would ask that the appeal be heard urgently. In making this decision, I have had regard to the fact that the substantive appeal is able to be heard and determined at short notice. In those circumstances, I am satisfied that the balance of convenience is in favour of granting a stay.

[32] Accordingly, the stay order was issued.

DEPUTY PRESIDENT

Appearances:

A Slevin of Counsel for the Appellant.

R Millar or Counsel for the Respondent.

Hearing details:

2015.

Melbourne and Sydney by video link:

November 19.

 1   PR574026.

 2   Ibid.

 3   PR574155.

 4 MUA submissions at [10] ASP submissions at [1].

 5   [2013] FWCFB 7736.

 6 (1936) 55 CLR 499.

 7 Above n 5 at [11].

 8 (2010) 197 IR 266 at [27].

 9   [2013] FWCA 3913 at clause 4.

 10 MUA Submissions at [17].

 11 Ibid at [18].

 12 Ibid at [19].

 13   [2015] FWC 7898 at [12].

 14   Exhibit 3.

 15   Above n 13.

 16 ASP Submissions at [17].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR574202>