Maritime Union of Australia v JKC Australia LNG Pty Ltd

[2016] FWC 3056

[2016] FWC 3056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Maritime Union of Australia
v
JKC Australia LNG Pty Ltd
(RE2015/367)

COMMISSIONER CLOGHAN PERTH, 16 MAY 2016

Alleged dispute concerning INPEX Project at Darwin Harbour - clarification of Order.

[1] On 20 January 2016, I issued a Decision [2016] FWC 201 and Order (PR576319) in relation to an application by the Maritime Union of Australia (MUA) to deal with a right of entry dispute.

[2] On 17 February 2016, JKC Australia LNG Pty Ltd (JKC or Respondent) requested that the matter be relisted to seek clarification of certain aspects of the Order. JKC’s request was the subject of a conference on 2 March 2016 and a hearing on 11 April 2016.

[3] Following the hearing, on 3 May 2016 at 7:28 am, the MUA requested that JKC’s application for clarification of the Order be dismissed pursuant to s.587 of the Fair Work Act 2009 (FW Act).

[4] In support of the MUA’s request for JKC’s application to be dismissed, it asserts:

“…the Hydro Deck that is the focus of the decision and orders of 20 January 2016 has ceased operating at the Respondent’s construction site, has been removed from its berth at the marine offloading facility (“MOF”), has sailed away from Darwin and Australia and the workers engaged on the Hydro Deck who were the subject of the dispute have been terminated from those roles.”

[5] My Order of 20 January 2016 related to the ALE Hydro Deck secured to the MOF. In terms of employees, the Order enabled the MUA to have discussions with “non-management employees who perform work on the ALE Hydro Deck and who wish to participate in those discussions.”

[6] The ALE Hydro Deck departed from the Ichthys Project on 15 April 2016.

[7] Accordingly, the MUA assert, “there can be no ongoing dispute in relation to the matters at issue and no basis to exercise any further jurisdiction or deal with the matters contained in the Application [JKC’s for clarification] and no utility in doing so.”

[8] On 6 May 2016, JKC responded to the MUA’s application that JKC’s application for clarification be dismissed, by requesting that the Order made on 20 January 2016 be revoked in its entirety.

[9] The request that the Order be revoked is made on the basis that the MUA has made the following concessions:

“ the dispute the subject to Fair Work Commission proceedings RE2015/367 no longer exists as a consequence of the removal of the Hydrodeck;

• if the Hydrodeck were to return, any dispute about right of entry by permit holders from the MUA to the Hydrodeck would be a new and distinct dispute;



• the Order made by Commissioner Cloghan on 20 January 2016 in RE2015/367 became spent when the Hydrodeck was removed; and



• that Order will have no application if and when the Hydrodeck returns.”

[10] Notwithstanding the MUA’s request to the Commission of 3 May 2016, to have JKC’s application for clarification of the Order dismissed, sometime later on the same day (10:52 am), it agreed with JKC’s request to have the Order revoked. Further,

“…although we suggest it would be appropriate for the “revocation” to be effective from the date of the Commission’s decision on that issue rather than be retrospective.”

[11] Fundamental to the Right of Entry dispute, and my Decision and Order of 20 January 2016, was the existence of the ALE Hydro Deck and employees working on it in the Darwin Harbour. The Hydro Deck left Darwin Harbour on 15 April 2016 and the employees subject of the dispute, are no longer working on the Hydro Deck.

[12] The material circumstances which led to the Order being made on 20 January 2016 have significantly changed. The reason why the Order had to be made no longer exists. Accordingly, I am of the view it is not necessary to make a determination on JKC’s request for clarification of the Order, or the MUA’s request for that application to be dismissed.

[13] Having examined the correspondence between the MUA and JKC and the material change in circumstances which led to the Order being made, I consider the most appropriate course of action is for the Order to be revoked pursuant to s.603(1) of the FW Act. An Order to this effect is attached to this Decision and is to apply from today’s date.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR580376>