Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd

[2016] FWCFB 1083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Maritime Union of Australia
v
Patrick Stevedores Holdings Pty Ltd
(C2016/2366)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BULL

SYDNEY, 18 FEBRUARY 2016

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

CaseChat Overview and Summary

The Maritime Union of Australia brought an appeal against a decision of Vice President Watson of the Fair Work Commission. The appeal was in relation to an order issued on 22 January 2016 in a matter concerning Patrick Stevedores Holdings Pty Ltd. The union sought to challenge the outcome of the decision and order, which had been made in a dispute involving employment terms and conditions. The Fair Work Commission is the body responsible for the resolution of workplace disputes and the enforcement of workplace laws in Australia.

The central legal issues that the court had to decide were whether Vice President Watson had erred in his interpretation of the relevant industrial instruments and whether he had applied the correct legal principles in making his determination. The union argued that the Vice President had misapplied the law in a way that was detrimental to their members' interests. The Patrick Stevedores Holdings Pty Ltd defended the decision, asserting that the Vice President had correctly interpreted and applied the relevant provisions of the law.

In delivering its judgment, the court found that Vice President Watson had indeed erred in his interpretation of the relevant industrial instruments. The court concluded that the Vice President had not applied the correct legal principles in reaching his decision. As a result, the appeal was upheld, and the original decision and order were set aside. The matter was remitted back to the Fair Work Commission for reconsideration in light of the court's findings.

The court's final orders were that the decision and order of Vice President Watson be set aside, and the matter be remitted back to the Fair Work Commission for reconsideration. The union was granted leave to appeal and was awarded costs of the appeal. The Patrick Stevedores Holdings Pty Ltd was ordered to pay the union's costs of the appeal. This decision underscores the importance of correct legal interpretation and application in workplace disputes and highlights the role of the court in reviewing decisions of the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established