Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd
[2016] FWCFB 1083
•18 FEBRUARY 2016
| [2016] FWCFB 1083 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Patrick Stevedores Holdings Pty Ltd
(C2016/2366)
VICE PRESIDENT HATCHER |
|
Appeal against decision ([2016] FWC 464) and order (PR576370) of Vice President Watson at Melbourne on 22 January 2016 in matter number B2016/212.
[1] On 22 January 2016 the Commission (Vice President Watson), upon an application by Patrick Stevedores Holdings Pty Ltd (Patrick), made an order 1 under s.425 of the Fair Work Act 2009 (FW Act) suspending protected industrial action being taken by Patrick’s employees working at its container terminals at Brisbane, Port Botany, Melbourne and Fremantle who were represented by the Maritime Union of Australia (MUA). The MUA appealed against that order. In a decision issued on 8 February 20162 this Full Bench quashed the order and indicated that it would re-determine Patrick’s application for an order under s.425 having regard to the circumstances which applied at the time of re-determination. On 10 February 2016 directions were made for Patrick and the MUA to file further evidence and submissions relating to events which had occurred since the hearing at first instance on 21 January 2016. Further evidence and submissions were filed in accordance with those directions.
[2] There is no evidence before us of any protected industrial action having been taken by Patrick’s employees since 19 January 2016, over four weeks ago. Nor is there any evidence that the MUA has issued any notices of future protected industrial action pursuant to s.414 of the FW Act. Patrick and the MUA are currently engaged in further negotiations concerning the making of a new enterprise agreement.
[3] An order under s.425 must be one directed at “… suspending protected industrial action for a proposed enterprise agreement that is being engaged in…”. It is common ground between Patrick and the MUA that an order under the section may only be made if there is protected industrial action being engaged in.
[4] Whatever view may reasonably be taken as to the temporal scope to be assigned to the expression “being engaged in”, we do not consider that even on the most liberal interpretation it could apply to the current circumstances in which there has been no protected industrial action taken since 19 January 2016 and there is no evidence that protected industrial action is planned or impending. Patrick submitted that where there is a “campaign of industrial action” being undertaken during enterprise bargaining, it is open for the Commission to find that protected industrial action is being engaged in even if it is not happening at the precise time that the Commission makes its determination. It is not necessary for us to form a view about the merits of this submission because the evidence before us does not support the proposition that the MUA and its members are in fact currently undertaking a campaign of industrial action.
[5] We do not consider that protected industrial action is being engaged in and accordingly there is no basis for the making of a suspension order under s.425. Patrick’s application must therefore be dismissed.
VICE PRESIDENT
Appearances:
S. Crawshaw SC with A. Jacka for the Maritime Union of Australia.
H. J. Dixon SC with D. J. A. Mackay of counsel for Patrick Stevedores Holdings Pty Ltd.
Hearing details:
2016.
Sydney:
2 February.
1 PR576370
2 [2016] FWCFB 711
Printed by authority of the Commonwealth Government Printer
<Price code A, PR577183>
1
2
0