Patrick Stevedores Holdings Pty Limited v The Maritime Union of Australia

[2013] FWC 9547

[2013] FWC 9547 Note: An appeal pursuant to s.604 (C2014/2578) was lodged against this decision - refer to Full Bench decision dated 31 January 2014 for result of appeal.

FAIR WORK COMMISSION

DECISION

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

Patrick Stevedores Holdings Pty Limited
v
The Maritime Union of Australia
(C2013/7531)

COMMISSIONER CAMBRIDGE SYDNEY, 19 DECEMBER 2013

Application for an Order to stop industrial action.

[1] Interim Orders [PR545349] were issued in this matter following initial proceedings held on 5 December 2013. This Decision is issued as confirmation of an Ex Tempore Decision made on transcript during the finalisation of the Hearing conducted on 19 December 2013. The Hearing of this matter was held in Sydney and was conducted via Video-Link to Perth.

[2] This matter involves an application made under s.418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order that industrial action that is occurring be stopped and not occur.

[3] Section 418 of the Act is in the following terms:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to FWC 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;

FWC 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) FWC 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.

(3) In making the order, FWC does not have to specify the particular industrial action.

(4) If FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[4] The application has been made by Patrick Stevedores Holdings Pty Limited (Patrick). The application seeks an Order against the Maritime Union of Australia (the MUA) and members of the MUA who are employees of Patrick.

[5] The industrial action that is the subject of the application relates to an alleged limitation on the performance of work by employees of Patrick who are members of the MUA employed at Patrick’s terminal located at Fremantle, Western Australia and whose work and employment is regulated by the Patrick Terminals Enterprise Agreement 2012 (the Fremantle Employees).

[6] The evidence provided in this matter, in terms of both statistical analysis and industrial relations history, has established that the MUA and the Fremantle Employees have engaged in, and or encouraged or otherwise organised, the imposition of a limitation on the performance of work involving a limit to the number of container lifts by a crane gang in a shift to a maximum of roughly 200. This limitation is referred to as “the Cap”.

[7] Perhaps the most meaningful, “apples with apples” diagrammatic manifestation of the Cap can be found at page 7 of Exhibit 4. In simple terms, before 19 November 2013, 26.32% of 3 ITV shifts had over 200 lifts. Between 19 November and 15 December last, the corresponding figure was 12.24%.

[8] The adoption and or organisation of the practice of work involving the Cap is industrial action as defined by section 19 of the Act. The definition of industrial action is found at section 19 of the Act which is in the following terms:

“19 Meaning of industrial action

(1) Industrial action means 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.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[9] Consequently, I am satisfied that industrial action in the form of the organisation, encouragement and adoption of the Cap is occurring and that is occurring during the nominal term of the Patrick Terminals Enterprise Agreement 2012.

[10] Therefore, pursuant to s.418 of the Act, the Commission must Order that the industrial action stop.

[11] The Orders [PR545941] as broadly sought by Patrick are made and issued separately, and in effect, confirm the Interim Orders issued on 5 December 2013.

[12] It is disturbing that it appears that the Interim Order issued in this matter has not been complied with. I trust that there will be rectification of that circumstance as a result of today’s Determination and the consequent Order made.

COMMISSIONER

Appearances:

Mr Y Shariff of counsel, and Mr D Perry solicitor, for Patrick Stevedores Holdings Pty Limited;

Mr L Edmonds appeared for the Maritime Union of Australia.

Hearing details:

2013.

Sydney:

December, 5 & 19.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR545348>