Noorton Pty Ltd T/A Manly Fast Ferry v Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 4502

[2019] FWC 4502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Noorton Pty Ltd T/A Manly Fast Ferry
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2019/3936)

DEPUTY PRESIDENT BOOTH SYDNEY, 28 JUNE 2019

Application pursuant to s.418 for an Order that industrial action must stop, not occur and not be organised - application dismissed.

[1] An application has been made by Noorton Pty Ltd (Noorton) for the Fair Work Commission (Commission) to make an Order under s.418 of the Fair Work Act 2009 (Cth) that proposed industrial action not occur and not be organised.

[2] The matter was heard by me on 27 June 2019. Noorton were represented by permission of the Commission by Mr Michael Seck of counsel. The CFMMEU were represented by Ms Samantha Danalis, National Legal Officer CFMMEU. Evidence was given by Mr Paul Garrett for the CFMMEU and he was cross-examined by Mr Seck. No evidence was given on behalf of Noorton.

[3] The basis upon which Noorton makes the application is that industrial action notified by the CFMMEU on 25 June 2019 does not meet the requirements of s.414(6) of the Act because the description of the nature of the action is ambiguous and uncertain.

[4] The CFMMEU resists the application and asserts that the notification accords with the requirements of s.414(6) of the Act and that the application for an Order under s.418 of the Act should not be made.

[5] Section 418 of the Act requires that the Commission must make an Order that industrial action stop, not occur or not be organised, as the case may be, if it appears to the Commission that industrial action by one or more employees or employers, that is not, or would not be, protected industrial action is happening or is threatened, impending or probable or is being organised. 1

[6] I am satisfied that industrial action by one or more employees is threatened, impending or probable and is being organised. There is no controversy between the parties about that, since the action is acknowledged as industrial action and it was notified by the CFMMEU to Noorton on 25 June 2019 to commence on 29 June 2019. The difference between the parties concerns whether the action is protected or unprotected industrial action.

[7] The action will not be protected industrial action if it is not made in accordance with s.414(6) of the Act. 2

[8] Section 414(6) of the Act requires that “A notice given under this section must specify the nature of the action and the day upon which it will start”. 3

[9] The notice given to Noorton by the CFMMEU is in the following terms:

“Re: Noorton Pty Ltd – Notice of Intention to Take Employee Claim Action

The Maritime Union of Australia refers to the outcome of the Protected Action Ballot No B2019/357, the results of which were declared on 31 May 2019.

Pursuant to Section 414(2)(a) of the Fair Work Act 2009 (Cth), I notify you that members of the MUA employed by Noorton Pty Ltd shall:

1. Engage in an unlimited number of periodic bans on the performance of work within 30 minutes of completion of passenger disembarkation whilst on turn around between 6:00pm and 8:00pm, Saturday 29 June 2019.

2. Engage in an unlimited number of periodic bans on the performance of work within 30 minutes of completion of passenger disembarkation whilst on turn around between 9:00am and 11:00am, Monday 1 July 2019.

3. Engage in an unlimited number of periodic bans on the performance of work within 30 minutes of completion of passenger disembarkation whilst on turn around between 2:00pm and 4:00pm, Monday 1 July 2019.

The Employee Claim Action of which you are being notified is being taken for the purpose of supporting or advancing claims made in respect of a proposed Enterprise Agreement.”

[10] The outcome of the Protected Action Ballot referred to in the notice refers to a vote of CFMMEU members conducted in accordance with a Protected Action Ballot Order issued by the Commission on 3 May 2019 in PR707952 and declared on 31 May 2019 where 43 employees out of 66 employees on the roll of voters cast valid votes.

[11] The questions posed in the ballot derived from the Protected Action Ballot Order were:

“Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement to govern the terms and conditions of employment with Noorton Pty Ltd, authorise protected industrial action in the form of:

1. An unlimited number of bans or limitations on the wearing of company issued uniform?

Yes [ ] No [ ]

2. An unlimited number of stoppages of work for 2-hour duration which may be organised or arranged in consecutive periods?

Yes [ ] No [ ]

3. An unlimited of indefinite or periodic bans on the performance of work within 30 minutes of completion of passenger disembarkation whilst on turn around?

Yes [ ] No [ ]

4. An unlimited number of actions in the form of making announcements, authorised by the MUA, by way of using the Public Address system, as well as handing out publications authorised by the MUA, aboard the vessels?

Yes [ ] No [ ]

5. An unlimited number of bans or limitations in the participation of loading food or beverages onto the vessels and selling food and beverages?

Yes [ ] No [ ]”

[12] The action notified that is the subject of this application derives from question 3 on the ballot where 39 employees voted yes and 4 employees voted no.

[13] There is no complaint by Noorton about the notification not specifying the day upon which the action will start.

[14] Noorton’s complaint is that the description of the nature of the action is ambiguous, uncertain and not sufficiently specified. As a consequence the notification does not provide them with a proper opportunity to respond to the action by making relevant preparations and taking appropriate defensive action. Furthermore it does not provide employees with sufficient clarity about what it is that they need to do to obtain legal immunity pursuant to section 415 of the Act.

[15] The CFMMEU assert that the notification is not ambiguous, not uncertain and not insufficiently specified. They argue that the Protected Action Ballot Order containing the relevant question was uncontested, that the action was voted for by a majority of members, that the description of the nature of the action in the notification is specific and that the present application is an attempt to stifle legitimate industrial action which is intended to cause inconvenience to advance claims in enterprise bargaining.

[16] I accept the submission of Noorton that the questions contained in the Protected Action Ballot Order do not answer whether the notification complies with s.414(6). I acknowledge that on 3 May 2019 Noorton put the CFMMEU on notice that they regarded question 3 as uncertain and ambiguous.

[17] I consider that my task is to review the wording of the notification and consider whether it meets the requirements of s.414(6), informed by the principles derived from relevant case law as summarised by Noorton in their outline of submissions. 4

[18] I agree with the parties that that the notification has to be read as a whole however it is relevant to examine the paragraphs outlining the proposed action and, in particular, the sections thereof that attracted argument. They are:

“…an unlimited number of periodic bans on the performance of work within 30 minutes of completion of passenger disembarkation whilst on turn around…”

[19] I will deal with these words in turn.

•  “...an unlimited number…”

[20] Noorton says that this could mean more than one instance in the specified period. The CFMMEU agree.

•  “…of periodic bans on the performance of work…”

[21] Noorton contend that the phrase “bans on the performance of work” is not clear as to whether there will be a cessation of work or not. They say that usually a “ban” is on a work activity such as tying up a vessel, removing a ramp, cleaning a vessel, using a particular piece of equipment or making announcements rather than a stoppage of work. They say “ban” should also be understood in light of the definition of industrial action in s.19(1)(b) of the Act that provides that “a ban, limitation or restriction on the performance of work by an employee...” is action that is industrial action.

[22] The MUA say that the phrase “bans on the performance of work” is clear and means all work by the employee stops.

[23] I consider that the plain meaning of these words, including as in s.19(1)(b) of the Act, includes cessation of work.

•  “…within 30 minutes of completion of passenger disembarkation…”

[24] Noorton contend that this could describe the duration of the ban, the start of the ban or the whole period of industrial action. The example given was of a vessel arriving at the turn around location at 3.50pm and completion of passenger disembarkation occurring at 3.55pm. Does it mean that industrial action can go until 4pm or 4.25pm? Noorton say it is uncertain.

[25] The CFMMEU say it is not uncertain and means the duration of the ban and must be read with the time boundaries provided. For example up to a 30 minute ban on the performance of work within the period 6pm to 8pm. The example given by Mr Garrett was of a vessel arriving at the turn around location at 7.50pm on Saturday 29 June 2019 and completion of passenger disembarkation occurring at 7.55pm. Industrial action would conclude at 8pm.

[26] I consider that the position of these words in the notification is imperfect, however the meaning given by the MUA is available and has now been clearly stated under oath.

[27] Noorton also contend that “completion of passenger disembarkation” was unclear. Did it mean every passenger was off the vessel? Mr Seck put to Mr Garrett words to the effect “if one passenger was left on board, would that constitute ‘completion of passenger disembarkation’?” and in effect Mr Garrett answered “no”. That is, Mr Garrett accepted that all passengers were to be off the vessel for ‘completion of passenger disembarkation’ to have occurred.

[28] I regard this as unambiguous.

•  “…whilst on turn around…”

[29] Noorton said that this term was uncertain in a service that has 11 vessels on different services at different times.

[30] The CFMMEU said that it was Circular Quay, and that Mr Garrett had provided an undertaking to this effect to Noorton. They said the term “turn around” was a well understood term in the maritime industry and meant where the services operating originate. In the time period specified in the notification it was readily ascertainable from Noorton’s published timetables that the “turn around” location was Circular Quay. This was not refuted by Noorton.

[31] Whilst I do not regard this understanding as readily ascertainable by a reading of the notification by someone other than a person familiar with Noorton’s services, the employer and employees are familiar with the services. In this circumstance, and in the light of the undertaking given, I consider that this is unambiguous.

[32] There appeared to be no disagreement between the parties about what the successive time boundaries outlined in the notification meant.

[33] Noorton submit that the notification is deficient in that it provides inadequate information to enable them to take appropriate defensive measures as understood in the case law. 5

[34] I consider that Noorton is on sufficient notice about the nature of the industrial action to allow it to take defensive measures. Unfortunately Noorton is in the position of having to “plan for the worst and hope for the best”. Their defensive measures may need to anticipate industrial action that may not occur. This may be of more disruption to services than the actual industrial action itself. Regrettably, this is often the case with protected industrial action. I consider that the industrial action notified is sufficiently specified for Noorton to be able to take steps to mitigate the impact on commuters and the business. No level of specificity would enable an employer to eliminate any and all inconveniences associated with the taking of protected industrial action, but this was never intended by the scheme of the Act.

[35] I consider that the notification by the CFMMEU of 25 June 2019 satisfies the requirements of s.414(6) of the Act.

[36] The Order sought by Noorton pursuant to s.418 of the Act is refused and the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Seck of Counsel with Ms R Bernasconi, for the Applicant.

Ms S Danalis with Mr P Garrett for the Respondent.

Hearing details:

Sydney.

2019.

27 June.

Final written submissions:

For the Applicant, 27 June 2019.

For the Respondent, 27 June 2019.

Printed by authority of the Commonwealth Government Printer

<PR709812>

 1   Fair Work Act 2009 (Cth), s.418.

 2   Mangoola Coal Operations Pty Limited v Construction, Forestry, Mining and Energy Union [2017] FWC 2771at [38].

 3   Fair Work Act 2009 (Cth), s.414(6).

 4   Applicant’s Outline of Submissions of 27 June 2019 at [24]-[26].

 5   See Davids Distribution Pty Ltd n National Union of Workers [1999] FWC 1108 at [87].