Offshore Marine Services Pty Ltd v Maritime Union of Australia, The-Western Australian Branch
[2010] FWA 5196
•19 JULY 2010
[2010] FWA 5196 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Offshore Marine Services Pty Ltd
v
Maritime Union of Australia, The-Western Australian Branch
(C2010/402)
COMMISSIONER CLOGHAN | PERTH, 19 JULY 2010 |
Industrial action.
[1] On 1 July 2010, Offshore Marine Services Pty Ltd (“OMS”) made application to stop unprotected industrial action pursuant to s 418 of the Fair Work Act 2009 (“the Act.”)
[2] The order was sought against:
- the Maritime Union of Australia (MUA) and its officers, employees, agents and delegates;
- Noel Nielsen, Organiser / Safety Officer, MUA WA Branch; and
- eight (8) named employees of the Applicant currently engaged in work on the Postnik Yakovlev vessel off Port Hedland, and who are members (or eligible to be members), of the MUA.
[3] For the purposes of this Decision, I shall refer to the order being sought against the employees and their representative (MUA).
[4] The conditions of employment for the employees subject to this application are, in part, contained in the Offshore Marine Services Pty Ltd Contract Propelled Dredging (Maritime - MUA) Workplace Agreement 2008. The nominal expiry date of the Agreement is 30 June 2011.
[5] The application was heard on 2 July 2010. I issued an Interim Order on the same day with reasons to follow.
[6] Put shortly, the alleged unprotected industrial action relates to employees on the vessel Postnik Yakovlev refusing to enter the Back Acter Pedestal area until it is deemed a “confined space” and the relevant procedures and obligations apply.
BACKGROUND
[7] OMS supplies marine crews for clients in the marine services industry including those in the offshore oil and gas industry. One of OMS’ clients is Jan de Nul. OMS provides marine crews to Jan de Nul’s dredging vessels. Jan de Nul currently contracts to BHP Billiton (BHBP) Iron Ore, to provide dredging services in Port Hedland. The dredging services are part of the BHPB’s Rapid Growth Projects 5 & 6 (“the Project”). The Project is located adjacent to BHBP export facilities in Port Hedland at Finucane Island and Nelson Point. While Jan de Nul has six vessels, the alleged unprotected industrial action relates only to vessel Postnik Yakovlev.
[8] The dredging vessel Postnik Yakovlev is designed to dredge, or dig out, marine harbours or similar water areas. At one end of the vessel is a Back Acter which is essentially a backhoe. The Back Acter sits on a pedestal which is approximately six metres below the deck of the vessel.
[9] The Postnik Yakovlev has been operating on the Project since September 2009.
[10] The Back Acter Pedestal is not an area of the vessel which attracts round-the-clock work. Work on the Back Acter Pedestal is on a “as needs” basis, which could include regular maintenance or leaking oil.
[11] Access to the Back Acter Pedestal area is governed by a Safety Operating Procedure (“SOP”). The SOP sets out the hazards of all tasks relating to accessing the pedestal. The SOP must be understood and signed off by all employees involved, on each occasion, the pedestal is accessed.
[12] The personnel involved in accessing the pedestal are generally the: Chief Engineer, 1st Engineer, 1st Operator, 2nd Operator and standby persons.
[13] At a safety meeting on 25 March 2010, the issue of whether the Back Acter Pedestal was a “confined space” was raised. That issue, along with a number of others, was given to Mr MacLennon, the Applicant’s Quality, Health, Safety and Environment Officer.
[14] Mr MacLennon commenced developing a Corrective Action Plan (CAP) for the issues raised at the meeting in consultation with Jan de Nul. On or about 13 April 2010, Mr MacLennon visited the vessel and following an examination of the top area, believed it was not a “confined space” 1. Subsequently, in a fairly informal discussion, Mr MacLennon relayed his view to Mr O’Donoghue, the MUA delegate on the vessel. Mr MacLennon gave evidence that, until the recent dispute, he had not received any further communication from the MUA2.
[15] From April 2010 both parties maintained their respective position on the issue of whether the Back Acter Pedestal was a “confined space”. During this period, and before, those members or eligible to be members of the MUA, took up standby (lookout) positions in case of an emergency when other personnel were accessing the area.
[16] Having not been required to enter the Back Acter Pedestal, the issue of whether the area is a confined space remained in a state of suspension until “triggered” by two matters.
[17] The first matter relates to a consultant engaged to provide training on the vessel. The consultant, as part of training, gave the Back Acter Pedestal as an example of a “confined space”. While not disputing the evidence given by Mr O’Donoghue, the expeditious and summary nature of these proceedings, does not provide for the Applicant with the opportunity to present a considered response to such an assertion. However, I am satisfied that the assertion, is part of the background to the dispute.
[18] The second matter relates to a burst pipe in the Back Acter Pedestal area on or about 29 June 2010. The burst pipe resulted in two to three tonne of oil spilling into the area which needs to be pumped into the waste tanks. The Chief Engineer is unwilling for the vessel to sail until the oil is removed. For the oil to be removed, it is now necessary for employees subject to this application, to enter the Back Acter Pedestal area.
[19] Before moving to the issue of the alleged industrial action, it is necessary to address the Applicant’s inference that because members (or those eligible to be members of the MUA) are prepared to be on standby (lookout) when other personnel are in the Back Acter Pedestal area, and willing to enter in an emergency, weakens the MUA’s position of the area being a “confined space”.
[20] Consistency of argument is essential and I accept that being prepared to enter into the Back Acter Pedestal area on some occasions and not others appears inconsistent. However, I also accept that the characteristics of an emergency are sufficient to differentiate what employees are prepared to do at a critical time, and the need to respond immediately, to the normal daily work regime. For this reason, I am unable to infer that because the relevant employees are prepared to enter in an emergency, they should do so at all other times.
LEGISLATION
[21] The Act provides at the relevant parts as follows:
- Section 19 - Meaning of industrial action
(1) Industrial actionmeans action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited , PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
- Section 418 - FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
- Section 420 - Interim orders etc.
Application must be determined within 2 days
(1) As far as practicable, FWA must determine an application for an order under section 418 or 419 within 2 days after the application is made.
Interim orders
(2) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).
(3) However, FWA must not make the interim order if FWA is satisfied that it would be contrary to the public interest to do so.
(4) In making the interim order, FWA does not have to specify the particular industrial action.
(5) An interim order continues in operation until the application is determined.
IS UNPROTECTED INDUSTRIAL ACTION TAKING PLACE?
[22] Evidence given by the Master of the vessel, Mr Soen and the MUA delegate on the vessel, Mr O’Donoghue, are generally in accord regarding the events on 30 June and 1 July 2010. The employees were asked to pump the oil out of the Back Acter Pedestal area. In the words of Mr Soen, Mr O’Donoghue stated:
“So we’re not going down there unless it’s deemed as a confined space” 3
[23] Mr O’Donoghue, in his evidence stated:
“I spoke to the skipper Greg Soen and said, you know where we stand on this. You treat it as a confined space and we’re quite happy to go down and pump the oil out” 4
[24] On 1 July 2010, Mr Soen advised other representatives of OMS what was happening on the vessel. In the hiatus, MUA employees on the vessel continued with other duties.
[25] On 1 July 2010, an email exchange occurred between Mr Thorstensen, OMS’s Marine Coordinator and Mr Nielsen, Organiser/Safety Officer of the MUA. Essentially, each party maintains their respective position as to whether the Back Acter Pedestal area is a confined space or not. It is noticeable that Mr Nielsen acknowledged that it was an “open sore” and suggested an external party to determine the issue as a way of breaking the deadlock 5.
[26] Mr Quirk, the OMS Crewing Manager, gave evidence that during 1 July 2010, he became aware of the dispute and had a discussion with Mr O’Donoghue at approximately 5:40pm.
[27] The telephone conversation between Mr Quirk and Mr O’Donoghue was the subject of dispute. Mr Quirk’s version is that, after confirming what was happening on the vessel, he advised Mr O’Donoghue that the employees’ actions were contrary to the Act and that the industrial action meant that the employees pay would be “docked” 6.
[28] Mr O’Donoghue conceded that Mr Quirk regarded the employees’ actions as “industrial action”. 7 Further,
“And he said to you that while you were refusing to perform your duties you won't be paid because it's industrial action, didn't he?---That's what he said, yes, but it's not the answer I gave him.” 8
[29] After the telephone conversation, Mr O’Donoghue spoke to the MUA night shift delegate and
“...The night shift came on and we spoke to night shift and told them that, "We've been stood down and our pay has been stopped," so we all had a meeting and we discussed how to go about this and we decided that we would crew the ship and we'd do emergency procedures and nothing else, because we weren't getting paid.” 9
[30] While Mr O’Donoghue was speaking to the night shift, Mr Quirk signed a memorandum to OMS employees eligible to be members of the MUA, regarding the unlawful industrial action.
[31] The memorandum again refutes the assertion that the Back Acter Pedestal is a “confined space” and that there are no reasonable concerns about an imminent risk to health and safety “which have been brought to the attention of OMS”. Finally, the refusal to perform duties in the Back Acter Pedestal area constitutes “unlawful industrial action” 10.
[32] While the memorandum could have been written with greater clarity, I am satisfied that the Employer’s communication outlines its position on the confined space and the “unlawful industrial action”.
[33] Mr O’Donoghue interpreted his discussion with Mr Quirk to the effect that the employees had been ‘stood down” 11 and subsequently, all duties on the night shift ceased with the exception of emergency procedures.
[34] When the day shift commenced at 6:00am on 2 July 2010, the employees had a discussion and:
“...We came to a decision as a crew that the pre-start was not necessary because there was no work to perform. Martin Quirk stopped us from working.” 12
[35] Essentially, the witness for the MUA was putting to the Tribunal that the employees did not withdraw their labour - “we were stood down” 13 or “suspended”14. Accordingly, I should not make a finding that industrial action had taken place.
[36] I am unable to accept this contention. It is clear to me that, at approximately 5:40pm on 1 July 2010, Mr O’Donoghue was aware of the Employer’s position that the employees’ actions were unprotected industrial action, and that they would not be paid for as long as it continued.
[37] It is not unnatural for Mr O’Donoghue to take away “top of mind” from his discussion with Mr Quirk, that the employees would not be paid; for that is most probably the first question he would be asked at the night shift meeting. However, that should not, and could not, have led him to take the view that the “cause” or “trigger” to the cessation of work on night shift, was the stopping of pay, rather than the refusal of employees to enter the Back Acter Pedestal until it was deemed a confined space.
WAS THE ACTION TAKEN BASED ON A REASONABLE CONCERN ABOUT AN IMMINENT RISK TO THE EMPLOYEES HEALTH OR SAFETY?
[38] As already outlined in this Decision, the dispute between the parties goes back to, at least, March of this year. Essentially, the dispute goes to a differing view on whether the Back Acter Pedestal is a “confined space” or not.
[39] The evidence relating to whether there was or is a reasonable concern, regarding an imminent risk to health or safety was limited. In the words of Mr O’Donoghue:
“...and all the pipework is covered in oil and it's very slippery and very dangerous and even the work platforms as you go down into that area have no handrails.” 15
and
“... the only thing we weren't going to do was the confined space because we considered it a safety issue and we were concerned for the safety of our members and that we hadn't withdrawn our labour.” 16
[40] The Master of the vessel responded very factually, in cross examination:
“If there's oil that's been spilt, I suppose there's a potential for slips and that type of thing when you go down into the area?---That's correct, yes.” 17
and
“...to pump it out you'd actually have to physically put some sort of a hose down into the hole to get the stuff out. Is that correct?---That's what's required, yes.” 18
[41] Mr Quirk, when cross examined, similarly agreed that there was a risk of slipping and falling, however, in context he stated:
“...There is a risk of all employees injuring themselves at any place on board that vessel. It is a ship. It is a dangerous environment.” 19
[42] While there was evidence regarding what procedures apply in a “confined space”, as distinct to a restricted area, it is not material for the purposes of this Decision.
[43] What is material for the purposes of applying the Act, is for the Tribunal to be satisfied that having applied the ordinary meaning of “reasonable” and “imminent”, the employees had concerns about the risk to their health or safety. The ordinary meaning of “imminent” is “impending, soon to happen” 20. It is possible to argue that as this was the first occasion employees had been asked to enter the area, there was an impending risk. However, all the evidence I have, and it is in small measure, is the “potential” for slips and falls. For these reasons, I am unable to conclude that the industrial action was based on a reasonable concern about an imminent risk to the employees’ health or safety.
DISCUSSION AND CONCLUSION
[44] The dispute between the parties could be simply summarised by saying that the employees and their representative (MUA) have a view that the Back Acter Pedestal should be treated as a “confined space” and the relevant safety procedures and obligations for a “confined space” apply. The Employer, and associated entities, take a different view in that the area is a restricted area, and the relevant Safety Operating Procedure is applicable.
[45] Until recently, the difference between the parties did not reach a point where the employees had to make a choice between accepting the Employer’s view, or take action consistent with their position. The recent burst pipe in the Back Acter Pedestal area has “triggered” behaviour consistent with the position that the area should be treated as a “confined space”.
[46] While there is much merit to the position expressed by the employees and their representative (MUA), to have the matter examined by an independent third party expert who would make a recommendation to the disputant parties, the Applicant pressed for the matter to be heard and determined pursuant to the Act.
[47] In summary, what has been presented to me is that the employees, in refusing to enter the Back Acter Pedestal until it is deemed a “confined space”, is a limitation or restriction on the performance of work and consequently within the definition of “industrial action” in the Act as set out in paragraph [21]. This industrial action is not protected as it is not in relation to bargaining for an enterprise agreement. Consequently, the application to stop the industrial action must be granted unless the exclusion provision in s.19(2) of the Act applies.
[48] The exclusion provision relied upon by the employees and their representative related to their action being based upon a reasonable concern about an imminent risk to their health and safety. As I indicated in paragraph [38] to [43], there was little evidence beyond the subjective possibility of something happening to the employees’ health and safety.
[49] Such evidence, in my view, is not demonstrable to force the Tribunal to conclude that there was reasonable concern about an imminent risk to the health and safety of employees. For these reasons, I am unable to agree that the exclusion provision in s.19(2) applies.
[50] I should note that the Applicant conceded that the more expansive parts of the initial order being sought, could not be substantiated on the evidence. The Order issued reflected the dispute, vessel, employees and industrial action which had taken place.
[51] In conclusion, at the end of the hearing, I was satisfied that unprotected industrial action was happening and probably would continue. Accordingly, for the reasons outlined above, the interim Order pursuant to s.420(2) of the Act was issued on 2 July 2010.
[52] I am satisfied that having heard all the evidence, it was not contrary to the public interest to make the interim Order.
COMMISSIONER
Appearances:
Mr N Ellery with Ms L D’Ascanio, Corrs Chambers Westgarth for the Applicant.
Mr T Kucera, W.G. McNally Jones Staff for the Respondent.
Hearing details:
2010:
Perth
2 July
1 PN 295
2 PN 303
3 PN 126
4 PN 366
5 Exhibit A2
6 PN 190
7 PN 386
8 PN 387
9 PN 371
10 Exhibit A1
11 PN 375
12 PN 401
13 PN 399
14 PN 214
15 PN 358
16 PN 369
17 PN 171
18 PN 172
19 PN 226
20 Australian Concise Oxford Dictionary
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