Patrick Stevedores Holdings Pty Ltd v Maritime Union of Australia, The

[2015] FWC 3587

[2015] FWC 3587

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 Ltd
v
Maritime Union of Australia, The
(C2015/4068)

COMMISSIONER CAMBRIDGE SYDNEY, 29 MAY 2015

Application for an order that industrial action by employees or employers stop etc.

[1] This is the edited text of an extempore Decision made in transcript during proceedings held on 29 May 2015.

[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 happening, threatened, impending, probable or being organised is to stop, not occur or not be organised.

[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 the 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;

the 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) The 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, the FWC does not have to specify the particular industrial action.

(4) If the 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;

the 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 Ltd (the employer) and it seeks an Order against the Maritime Union of Australia (the MUA) and members of the MUA who are employed at the employer’s terminal located at Port Botany, New South Wales.

[5] The Hearing of this application commenced on 27 May and the employer served substantial evidentiary material only shortly before the commencement of the proceedings. The respondent, the MUA, was understandably unable to properly prepare its case in the time available and it was placed at considerable disadvantage. The MUA sought an adjournment of the proceedings which was not opposed by the employer. However, the employer requested that the Commission make an Interim Order under s.420 of the Act.

[6] The MUA made submissions opposing the granting of any Interim Orders on the basis that any such Interim Order would be contrary to the public interest. The employer pressed for the making of an Interim Order. The Commission considered the competing submissions concerning any Interim Order. The Commission made an extempore determination which indicated that, in circumstances as contemplated by subsection 420 (2) of the Act, the Commission was obliged to make an Interim Order unless satisfied that it would be contrary to the public interest to do so (subsection 420 (3)). The Commission determined that it was not satisfied that it would be contrary to the public interest to make an Interim Order in the terms sought by the employer. The Interim Order [PR56776] was issued accordingly and has operated until the application has been determined by way of this Decision.

[7] The Hearing resumed yesterday, 28 May, and involved witness evidence being provided by Mr O'Leary and Mr Woodward for the employer. The MUA adduced witness evidence from Mr Stewart. The Hearing was completed today with the respective submissions of the Parties.

[8] The industrial action that is the subject of the application relates to what can be broadly described as an alleged overtime ban which has been and continues to be organised and encouraged by the MUA and conducted by the members of the MUA employed by the employer. The alleged overtime ban is confined to employees engaged in a category of employment described as Permanent Irregular Roster (PIR) employees.

[9] PIR employees are engaged on an annual salary arrangement which anticipates work of 1820 ordinary hours per year in each year ending 30 June. If a PIR employee completes 1820 hours prior to 30 June in any year they have satisfied the ordinary hours required in that year. Consequently, any PIR employee who has completed 1820 hours before 30 June is not required to work any additional hours. However any additional hours may be voluntarily worked and are paid at overtime rates.

[10] The alleged overtime ban which is the subject of this application, involves the refusal of PIR employees to make themselves available for overtime once they have completed the 1820 ordinary hours for the year. It has been asserted that the custom and practice of PIR employees has been to volunteer to work overtime because of the attractive rates that apply for this work. Recent circumstances have seen a significant number of PIR employees not make themselves available for overtime work. Evidence was provided that the levels of volunteering for this overtime work are not in accordance with the previous year’s levels.

[11] It appears that the practice of the employer has been to consider that any PIR employee who has completed the 1820 ordinary hours would be available for overtime unless an individual specifically advised the employer to the contrary. Evidence was provided that all PIR employees who have completed the 1820 ordinary hours for this year have, when contacted, indicated that they are not available to perform overtime. Although apparently two PIR employees initially indicated availability to perform overtime they appear to have subsequently retracted that availability.

[12] The employer's operations are likely to be disrupted and significant cost imposts are created if there are insufficient numbers of PIR volunteers for overtime. Disruption and delay with the operation of shipping activities and the associated cost imposts are likely to be exacerbated as more PIR employees reach their individual 1820 ordinary hours between now and June 30. The employer anticipates that by the second week of June at the latest, all of the 92 PIR employees at the Port Botany terminal will have completed 1820 hours for this year. Consequently, if as part of some campaign of covert industrial action, PIR employees refuse to volunteer to work overtime, significant disruption and financial imposts will be inflicted upon the employer and these impacts will progressively worsen until June 30.

[13] However, whether the particular aspect of the alleged campaign of covert industrial action involving lower levels of PIR's volunteering for overtime of this annualised nature, would meet the legislative definition of industrial action is an interesting question. 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).”

[14] The determination of the application firstly requires consideration as to whether a refusal by PIR employees to volunteer for overtime of the annualised nature applicable in this instance, and apparently not in accordance with previous levels of preparedness to volunteer, would satisfy the meaning of industrial action as contained in s.19 of the Act.

[15] The relevant parts of s.19 would seem to be those words contained in subsection (1) (a) which state, “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” and those words appearing in subsection (1) (b) which read, “a ban, limitation or restriction ...on the acceptance of or offering for work by an employee”. [ Emphasis added]

[16] The evidence provided during the Hearing has established that a significantly lower number of PIR's have volunteered for overtime when compared to last year. It has been asserted by the employer that the significant reduction in the number of PIR's volunteering for overtime was part of a campaign of covert industrial action. However, the intrinsic nature of volunteering, particularly for overtime work which arises after an individual completes the requisite number of annual ordinary hours, introduces some difficulty to establish that a refusal to volunteer for such work in accordance with the terms of the applicable industrial instrument should be construed as industrial action.

[17] It must also be recognised that the refusal to volunteer means that an individual forgoes the attractive penalty payments that apply to overtime. Further, the annualised ordinary hours arrangements might logically provide for the prospect that an individual or a number of individuals may consciously make arrangements to utilise what would become a period of extended paid leave once they had reached their 1820 hours.

[18] Further, the prospect of stopping covert industrial action by force of legally binding Order has some practical difficulties. In this instance, in respect to the volunteering for annualised arranged overtime, some obvious problems can be contemplated regarding any means by which to identify non-compliance with any Order. For example, which individuals would be required to volunteer presents as something of a dilemma. How many individuals would need to volunteer in order to signify compliance with an Order? And what of the individuals who still do not volunteer even if a sufficient number do volunteer consistent with the previous year? What of the case of an individual who had consciously planned for an extended paid break from work once their 1820 hours had been reached?

[19] It must also be acknowledged that some aspects of the labour shortage which is created when a significant number of PIR employees reach the annual 1820 hours well before 30 June, are attributable to various factors relating to management decisions regarding the rostering of PIR's and overall reductions in staffing levels. The evidence established that there were circumstances in the current financial year which impacted upon staffing levels and rostering arrangements which were not present in the previous financial year. In some respects the dilemma faced by the employer between now and 30 June can be considered to be something that it should have logically predicted and managed accordingly. The inevitability of having to rely upon a progressively increasing number of PIR employees working voluntary overtime would have been a matter for concern and contingency planning even if the prospect for some organised collective refusal to volunteer was not contemplated.

[20] However, any attribution to the employer of some exacerbation of the impact that industrial action may have could not detract from the primary determination as to whether industrial action as properly construed, is or is not occurring, threatened, impending, probable or being organised. The most significant factor which supports a finding that there is an organised approach to the refusal of PIR employees to work overtime is that not one individual PIR has made themselves available for overtime after they have completed their 1820 hours in the current year. I am unable to accept that this circumstance could arise in the absence of any coordinated approach taken amongst the PIRs.

[21] Consequently, as was established by the Full Bench Decision in Australian Workers’ Union v BlueScope Steel  1 (BlueScope) such collective refusal to volunteer for overtime is properly held to be industrial action. In this instance the action is more covertly organised than it was in the BlueScope case. However the same inferences can be drawn as to the collective refusal by employees to volunteer for overtime.

[22] In addition, the prospect that this particular circumstance, whereby not one PIR has volunteered for overtime, has been created by covert industrial action, is supported by the extensive history of industrial disputation between the Parties, particularly at the Port Botany site. It is disappointing to observe the parlous state of the industrial environment at this workplace particularly at a time when the Parties are involved in negotiations for a new enterprise agreement. The ongoing lack of trust and goodwill between the Parties represents something of a nadir case study in uncooperative workplace relations. Further, it seems that a history of making numerous Orders under s.418 of the Act has not provided any enduring remedy for the underlying problems which have beset this particular workplace. Perhaps a new approach should be considered.

[23] Consequently, in summary, I am disappointed but satisfied that a campaign of covert industrial action has been undertaken and there is proper basis upon which to find that this concerted activity satisfies the meaning of industrial action as contained in s. 19 of the Act.

[24] Notwithstanding the various competing factors which may support or detract from the making of the Orders that have been sought, there remains a significant concern as to whether Orders to stop covert industrial action will provide any practical solution for the particular circumstances faced by the employer between now and June 30. However, the employer has urged that the Commission make the Orders notwithstanding the acknowledged difficulties that may arise in respect to any enforcement.

[25] Conceivably, compliance with the Order will involve some number of PIR's making themselves available for overtime between now and 30 June. The position faced by each individual PIR is similar to that of the employees in the BlueScope case as was identified by the Full Bench Decision at paragraph 23. In my view, the MUA is obliged to take proactive steps to ensure that its members who are the subject of the Order are advised of the potential ramifications of any refusal to accept an offer to work overtime. In these particular circumstances I have formed the view that any perceived difficulties with the practical utility for the Order should not operate as a consideration against the making of the Order.

[26] Therefore, in conclusion, I am satisfied that the alleged industrial action to which the application is directed, meets the definition of industrial action as contained in s.19 of the Act. Further, I am satisfied that the industrial action is not protected industrial action and it is happening, impending, probable and is being organised. The industrial action is covert in nature and manifests as a ban on overtime by PIR employees.

[27] Therefore the Commission must make an Order that the industrial action stop, not occur and not be organised for the stop period which I have determined to be until 30 June 2015.

[28] The application is granted and the Interim Order shall be replaced with an Order made broadly in the terms sought by the employer.

COMMISSIONER

Appearances:

Mr D Perry of Seyfarth Shaw Australia appeared for Patrick Stevedores Holdings Pty Ltd.

Ms L Doust of Counsel appeared for The Maritime Union of Australia.

Hearing details:

2015.

Sydney:

May 27, 28 and 29.

 1   Australian Workers’ Union v BlueScope Steel Ltd [2008] AIRCFB 24, 171IR @ 115.

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