Patrick Stevedores Holdings Pty Ltd v The Maritime Union of Australia

[2016] FWC 510

[2016] FWC 510

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.425 - Application to suspend protected industrial action, cooling off

Patrick Stevedores Holdings Pty Ltd
v
The Maritime Union of Australia
(B2016/212)

VICE PRESIDENT WATSON MELBOURNE, 29 JANUARY 2016

Application by Patrick Stevedores Holdings Pty Ltd to suspend protected industrial action, cooling off – construction of s.425 of the Act – whether suspension is appropriate – whether suspension beneficial to bargaining parties because it would assist in resolving matters at issue – duration of industrial action – public interest and objects of the Act – Fair Work Act 2009, ss.413, 425.

Introduction

[1] On 22 January 2016 I issued the following decision:

[1] This decision concerns an application by Patrick Stevedores Holdings Pty Ltd (Patrick) for an order under s.425 of the Fair Work Act 2009 (the Act) that protected industrial action that is being engaged in by employees of Patrick who are members of The Maritime Union of Australia (MUA) be suspended.

[2] I am satisfied that suspension of the protected industrial action is appropriate taking into account the matters specified in s.425 of the Act. I determine that the suspension will be for a period of 35 days from the date of this decision.

[3] Full reasons for my decision in this matter will be issued in due course.

[2] These are the reasons for my decision.

[3] The application was made by Patrick on 19 January 2016. I heard the application on 21 January 2016. At the hearing of the matter Mr D Perry, of counsel, represented Patrick. Mr S Crawshaw SC, of counsel, represented the MUA. Patrick led evidence from Mr Anthony Jones, the General Manager of New South Wales/Queensland employed by Asciano Ltd, the parent company of Patrick.

[4] Section 425 of the Act provides:

“425 FWC must suspend protected industrial action—cooling off

(1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:

(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;

(b) the duration of the protected industrial action;

(c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

(d) any other matters that the FWC considers relevant.

(2) The FWC may make the order only on application by:

(a) a bargaining representative for the agreement; or

(b) a person prescribed by the regulations.”

The History of Bargaining

[5] Patrick operates four container terminals in Australia—at Port Botany, NSW, Brisbane, Queensland, Fremantle, Western Australia and Melbourne, Victoria. Its enterprise agreements covering the operations are historically divided into a general Part A that applies to all four terminals and a Part B that consists of four terminal specific schedules. The currently applicable agreement is the Patrick Terminals Enterprise Agreement 2012 (the 2012 Agreement). Mr Jones gave the following uncontested evidence about the history of bargaining for a replacement agreement:

“8. The 2012 Agreement passed its nominal expiry date on 30 June 2015. In anticipation of this, Patrick distributed Notices of Employee Representational Rights to the Employees between 1 and 8 April 2015. It commenced bargaining with the MUA for a proposed enterprise agreement referred to as the Patrick Terminals Enterprise Agreement 2015 (Proposed Agreement) on 9 April 2015.

9. Since the commencement of negotiations, bargaining for the Proposed Agreement has proceeded on the basis that the new agreement will be structured in the same way as the 2012 Agreement. This means that Patrick and the MUA are required to hold separate negotiations for Part A, and for each of the four schedules that make up Part B.

10. At the commencement of bargaining for each part and schedule of the Proposed Agreement, the MUA provided Patrick with documents setting out its claims. Annexed to this witness statement are:

a. A copy of a document setting out the MUA’s claims relating to Part A, dated 8 April 2015, marked “AJ-1”.

b. On 29 April 2015, the MUA provided Patrick with a document setting out its proposals for the Sydney schedule of Part B, a copy of which is annexed to this witness statement and marked “AJ-2”.

c. a copy of a document prepared by Michael McDonald (Business Support Manager – Brisbane Terminal) on our around 18 May 2015, setting out the claims made by the MUA in relation to the Brisbane schedule of Part B, marked “AJ-3”.

d. a copy of the MUA’s proposals provided by in relation to the Fremantle schedule of Part B, dated 22 January 2015 and provided by Saskia Verity, marked “AJ-4”.

e. a copy of the MUA’s proposals in relation to the Melbourne schedule of Part B, originally emailed to Damian Ryan on 19 June 2015, on marked “AJ-5”.

Collectively, I refer to these documents as the Logs of Claims.

11. Taken together, the Logs of Claims contain a large number of claims, many of which touch on important issues for the parties. Despite the substantial number of meetings described below, the parties have not been able to discuss all of the issues set out in the Logs of Claims.

12. Since April 2015, negotiations for the various parts of the Proposed Agreement have progressed as follows:

a. Bargaining meetings in relation to Part A have been attended by:

i. for Patrick: myself (based in Sydney), Elizabeth Ferrier (General Manager – Industrial Relations, based in Sydney), Damian Ryan (Melbourne Terminal Manager, based in Melbourne) and formerly Gabe Meena (General Manager – Operations, then based in Sydney); and

ii. for the MUA: Mick Doleman (Deputy National Secretary), Paul Keating (Sydney Branch Deputy Secretary), Daniel Falcone (Organiser, based in WA), Trevor Munday (based in Queensland), Dave Cushion (based in Victoria) and Will Tracey (Deputy National Secretary). A number of other attendees have attended one or more meetings from time to time, including Adam Jacka (National Legal Officer), Bob Carnegie (Queensland Branch Secretary) and Jason Miners (Queensland Deputy Branch Secretary).

The parties have held 29 meetings in relation to Part A, on:

i. 9, 23 and 24 April 2015;

ii. 5, 19 and 20 May 2015;

iii. 4, 5, 16 and 17 June 2015;

iv. 15, 16, 27 and 28 July 2015;

v. 19 and 20 August 2015;

vi. 11 and 30 September 2015;

vii. 1, 2, 22 and 23 October 2015;

viii. 10-12 and 19 November 2015; and

ix. 9-11 December 2015.

b. Bargaining meetings in relation for the Sydney schedule of Part B have been attended by Jamie Wardley (Terminal Manager), Timi Cheng (Operations and Automation Manager), Leigh Coppin (HR Manager) and, in relation to more recent meetings, myself and Elizabeth Ferrier for Patrick, and by Paul McAleer (Sydney Branch Secretary) for the MUA, as well as MUA delegates as follows – Matthew Freestone, Jason Laing, Adam Lee, Warren Copper, Mick Stewart, Dave Herdegan, Joe Rossiter, Matthew Bonner, Adele Lucas, and as a self-representing agent, Sean Ambrose. The parties have held 11 meetings in relation to the Sydney Terminal, on:

i. 21 May 2015;

ii. 2 and 3 July 2015;

iii. 13 and 27 August 2015;

iv. 15 and 28 September 2015;

v. 18 and 26 November 2015; and

vi. 2 and 8 December 2015;

c. Bargaining meetings for the Brisbane schedule of Part B have been attended by Matthew Hollamby (Port Manager), Benjamin Banks (HR Manager) and, where needed, Jayn Sharrock (Operations Manager) for Patrick, and by Trevor Munday for the MUA. The parties have held 3 meetings in relation to the Brisbane Terminal, on:

i. 15 May 2015;

ii. 13 August 2015; and

iii. 22 September 2015.

d. Bargaining meetings for the Fremantle schedule of Part B have been attended by Sean Jeffries (General Manager WA/NT), Peter Chesi (Operations Manager) and Saskia Verity (HR Manager) for Patrick, and by Daniel Falcone for the MUA. The parties have held 7 meetings in relation to the Fremantle Terminal, on:

i. 22 July 2015;

ii. 5 and 26 August 2015;

iii. 22 and 23 September 2015;

iv. 7 October 2015; and

v. 1 December 2015.

e. Bargaining meetings for the Melbourne schedule of Part B have been attended by Damian Ryan, Sophie Porra (HR Manager) and Chris Brewster (Operations Manager) for Patrick, and by Robert Patchett (WA Branch Assistant Secretary) and Dave Cushion for the MUA. The parties have held 4 meetings in relation to the Melbourne Terminal, on:

i. 10 March 2015;

ii. 1 July 2015;

iii. 7 August 2015; and

iv. 6 November 2015.

13. Throughout the bargaining process, the parties have been assisted by Deputy President Booth, acting in an informal capacity. I am informed by Johanna Brigham (Employee Relations Manager) that throughout the early stages of bargaining, Patrick and the MUA were aware that it would be useful to have a facilitator involved to assist in resolving a number of difficult issues in bargaining, and had previously been assisted by the Deputy President during bargaining for enterprise agreements to cover Patrick’s bulk and general business. After consultation with the MUA, Elizabeth Ferrier approached Deputy President Booth requesting that she become involved in the process of bargaining for the Proposed Agreement. Annexed to this witness statement and marked “AJ-6” is a copy of the email from Elizabeth Ferrier to Deputy President Booth and Will Tracey requesting that Deputy President Booth assist the parties.

14. Throughout the course of bargaining, Deputy President Booth has:

a. facilitated the last 12 Part A meetings, from 30 September 2015 onwards;

b. facilitated the Part B meetings in relation to the Sydney Terminal on 28 September and 18 November 2015; and

c. undertaken a site visit at the Sydney Terminal on 13 October 2015.”

The History of Protected Industrial Action

[6] Mr Jones gave the following uncontested evidence about the history of protected industrial action associated with the renegotiation of the agreement:

“15. In November 2015, the MUA made an application to the Fair Work Commission (Commission) for a protected action ballot order. A protected action ballot order was made by Deputy President Booth on 2 December 2015. A copy of Deputy President Booth’s order downloaded from the Commission’s website is annexed to this witness statement and marked “AJ-7”.

16. The results of the protected action ballot were declared by the Australian Electoral Commission on 23 December 2015. A majority of Employees who participated in the ballot voted to approve each form of industrial action that was put to them. A copy of the declaration of results downloaded from the Commission’s website is annexed to this witness statement and marked “AJ-8”.

17. Since the declaration of the results of the ballot, Patrick has received the following notices of protected industrial action from the MUA, which have been either sent to me or forwarded to me by my colleagues:

a. a notice dated 28 December 2015 signed by Mr Paul McAleer (Sydney Branch Secretary, MUA), which is annexed to this statement and marked “AJ- 9”; and

b. five notices dated 8 January 2015 signed by Mr Adam Jacka (National Legal Officer (Industrial), MUA), which are annexed to this statement and marked “AJ-10”, “AJ-11”, “AJ-12”, “AJ-13” and “AJ-14”;

c. a notice dated 11 January 2016 signed by Mr Jacka, which is annexed to this statement and marked “AJ-15”;

d. a notice dated 15 January 2015 signed by Mr McAleer, which is annexed to this statement and marked “AJ-16”; and

e. a notice dated 15 January 2015 signed by Mr Will Tracey (Deputy National Secretary, MUA), which is annexed to this statement and marked “AJ-17”.

18. Pursuant to the notices set out above, the following protected industrial action has been organised by the MUA and taken by the relevant Employees:

a. indefinite bans on the performance of overtime and shift extensions by Employees at the Sydney Terminal commencing at 12:01 am on 6 January 2016 and continuing as of the present time;

b. a 12 hour stoppage of work by Employees at the Sydney Terminal commencing at 6:00 am and concluding at 6:00 pm on 18 January 2016;

c. a 12 hour stoppage of work by Employees at the Sydney Terminal commencing at 6:00 pm on 18 January 2016 and finishing at 6:00 am on 19 January 2016;

d. a 24 hour stoppage of work by Employees at the Fremantle Terminal commencing at 7:00 am on 18 January 2016 and concluding at 7:00 am on 19 January 2016;

e. a 24 hour stoppage of work by Employees at the Melbourne Terminal commencing at 6:00 am on 18 January 2016 and concluding at 6:00 am on 19 January 2016;

f. an 8 hour stoppage of work by Employees at the Brisbane Terminal commencing at 6:00 am and concluding at 2:00 pm on 18 January 2016;

g. an 8 hour stoppage of work by Employees at the Brisbane Terminal commencing at 2:00 pm and concluding at 10:00 pm on 18 January 2016;

h. an 8 hour stoppage of work by Employees at the Brisbane Terminal commencing at 10:00 pm on 18 January 2016 and concluding at 6:00 am on 19 January 2016;

i. a 4 hour stoppage of work by Employees at the Sydney Terminal commencing at 10:00 am and concluding at 2:00 pm on 19 January 2016;

j. a 4 hour stoppage of work by Employees at the Fremantle Terminal commencing at 11:00 am and concluding at 4:00 pm on 19 January 2016;

k. indefinite bans on the performance of overtime and shift extensions by Employees at the Fremantle Terminal commencing at 12:01 am on 19 January 2016 and continuing as of the present time.

The stoppages on 18 and 19 January 2016 immediately preceded dates on which the parties had immediately scheduled bargaining meetings (20-22 January 2016).

19. The MUA has also given notice of the following industrial action in the week beginning 25 January 2016:

a. 4 hour stoppages of work by Employees at the Brisbane and Melbourne Terminals commencing at 7:00 am and concluding at 11:00 am on 25 January 2016;

b. a 24 hour stoppage by Employees at the Sydney Terminal commencing at
6:00 am on 25 January 2016 and concluding at 6:00 am on 26 January 2016; and

c. a 24 hour stoppage by Employees at the Sydney Terminal commencing at
6:00 am on 26 January 2016 and concluding at 6:00 am on 27 January 2016.”

The Construction of s.425

[7] The MUA contends that for the purposes of considering whether the suspension of protected industrial action is appropriate, regard must only be had to industrial action being engaged in at the time the application is considered. It contends that at the time of the hearing certain stoppages of work had occurred but were no longer being engaged in (paragraphs 18(b) - (j) in the evidence of Mr Jones above) and certain further stoppages were notified but had not happened (paragraphs 19 (a) – (c) in the evidence of Mr Jones). It submitted that only the industrial action described in paragraphs 18 (a) and (k) could be considered for the purposes of the section and be subject to any order that the action be suspended.

[8] In order to consider this submission it is necessary to consider the history and context of s.425 of the Act. Prior to the commencement of the Act in 2009 provisions of the Workplace Relations Act 1996 (the WR Act) provided for the taking of protected industrial action during bargaining periods established pursuant to the legislative provisions. Section 432 of the WR Act provided for the suspension of a bargaining period to provide for a cooling off period on grounds substantially the same as those now found in s.425 of the current Act. The current Act does not contain a regime for bargaining periods. The protected action provisions operate on a similar basis but without the process of establishing, suspending or terminating bargaining periods.

[9] As a result of the discontinuation of the bargaining period concept the current provisions contain consequential changes to the various provisions regarding protected industrial action. The Explanatory Memorandum for the Act includes the following in the introductory remarks in relation to Part 3-3 which deals with “Industrial Action”:

“Division 6 – Suspension or termination of protected industrial action by FWA

1706. Division 6 sets out the grounds upon which FWA may suspend or terminate protected industrial action organised, or engaged in, in relation to a proposed enterprise agreement.

1707. Suspension or termination of protected industrial action brings to an end the right to take protected industrial action. Protected industrial action may be resumed after any period of suspension, but will be subject to any requirements for the giving of notice before any action may be taken. A termination of protected industrial action may lead to FWA making a workplace determination under Part 2-5.

1708. The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.

1709. It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.

1710. Under the Bill, FWA:

● may suspend or terminate protected industrial action if the action is causing (or threatening to cause) significant economic harm to the employer and/or employees (clause 423);

● must suspend or terminate protected industrial action if the action has threatened, is threatening or would threaten to endanger life, personal safety or the health of the population or cause significant damage to the economy (clause 424);

● must suspend protected industrial action to provide for a cooling-off period (clause 425); and

● must suspend protected industrial action if the action is adversely affecting the employer and its employees and is threatening to cause significant harm to a third party (clause 426).”

[10] In relation to s.425 the Explanatory Memorandum states:

“Clause 425 – FWA must suspend protected industrial action – cooling off

1723. This clause enables FWA to suspend the taking of protected industrial action to provide for a cooling-off period. Protected industrial action cannot be terminated on this ground.

1724. FWA is required to make an order suspending protected industrial action if it is satisfied that it would be appropriate to do so taking into account the following matters (subclause 425(1)):

• whether suspension would assist the bargaining representatives to resolve the matters at issue;

• the duration of the protected industrial action;

• the public interest and the objects of the Act; and

• any other relevant matters.

1725. FWA may only make an order suspending protected industrial action upon application by a bargaining representative for the proposed enterprise agreement or a person prescribed by the regulations (subclause 425(2)).”

[11] In the case of Transit Australia Pty Ltd v TWU 1 Commissioner Cambridge considered an application under s.425 where protected industrial action had been notified to commence the following day and had occurred on previous occasions. He did not consider that the future existence of industrial action precluded the making of an order suspending the industrial action but it appears that the matter was not argued in the case before him. He declined to make an order based on merit considerations.

[12] In the case of Tas Paper Pty Ltd v AMWU and another 2 Senior Deputy President Watson considered a case where no protected industrial action had commenced. He said:

“[7] The expression “engaged in” in s.425 must be read in the context of the Act in which it appears and in the context of Division 6 in particular. Division 6 sets out a range of circumstances in which Fair Work Australia must suspend or terminate protected industrial action.

[8] Section 423 of the Act deals with the suspension or termination of protected industrial action in relation to “significant economic harm etc.” It provides that “FWA may make an order suspending or terminating protected industrial action for a proposed enterprise agreement that is being engaged in if (statutory) requirements …. are met”. One of those requirements in s.423(6) is that “the protected industrial action has been engaged in for a protracted period of time”.

[9] Section 424 of the Act deals with the suspension or termination of protected industrial action in relation to “endangering life etc.” It provides that:

“FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if FWA is satisfied that the protected industrial action has……”

[10] The provision in s.425 of the Act, provides that “FWA must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if FWA is satisfied that the suspension is appropriate taking into account the (statutory) matters”.

[11] Section 426 of the Act, concerning significant harm to a third party, provides that “FWA must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the (statutory) requirements …..are met”.

[12] Within Division 6 of Part 3-3, the Parliament has associated the making of orders suspending or terminating protected industrial action in ss.423, 425 and 426 of the Act to action that is being engaged in. Section 424 of the Act, by contrast, deals with orders in circumstances of protected industrial action that is being engaged in; or is threatened, impending or probable. This distinction within Division 6 suggests that s.425 is restricted in its operation to protected industrial action which is occurring and does not extend to threatened, impending or probable.

[13] Whilst protected industrial action has been foreshadowed by the unions in their notices of intended industrial action, there is at this time no protected industrial action that is being engaged in. In that circumstance, there is no jurisdiction to make the order sought.”

[13] In a case concerning an application under s.424 of the Act and Qantas in 2011 a Full Bench 3 considered the incidence and implications of current and foreshadowed industrial action. It concluded:

“[10] It is unlikely that the protected industrial action taken by the three unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries. The response industrial action of which Qantas has given notice, if taken, threatens to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services. The Qantas evidence was that the cost to it alone is $20 million per day.

[11] We find that the requirements of s.424(1) have been made out with respect to the action of which Qantas has given notice in relation to the three proposed enterprise agreements. In the circumstances we are required to make an order either terminating or suspending the protected action.”

[14] The Federal Court considered a challenge to this decision 4. The notion that the future foreshadowed industrial action could not be considered for the purposes of section 424 was not argued and the court appears to have seen no issue with reliance on that action. I note however that s.424 expressly refers to impending industrial action whereas s.425 does not. Further, the Full Court referred to the import of s.413 of the Act which relevantly states:

“Common requirements that apply for industrial action to be protected industrial action

Common requirements
(1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.
…
No suspension or termination order is in operation etc.
(7) None of the following must be in operation:

(a)  an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement;
(b)  a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement;
(c)  a serious breach declaration in relation to the agreement.”

[15] The argument of the MUA has three aspects. In each case, at the time of hearing, the context was that industrial action in the form of bans was being engaged in and stoppages had been notified but were not then occurring. The first aspect is a requirement that protected industrial action be engaged in as a jurisdictional prerequisite for exercising the power under s.425 of the Act. The MUA contends that without protected action being engaged in, a fundamental element of the basis for jurisdiction does not exist. The second aspect of the argument concerns the focus of attention in making the assessment of appropriateness contemplated by s.425 of the Act. It contends that as the jurisdictional prerequisite is protected action that is being engaged in, it is the appropriateness of suspending that industrial action that must be considered. Thirdly is the consequence of an order for suspension. It contends that only the protected action that is being engaged in can be suspended and an order cannot extend to action that has not occurred. I will deal with each of the aspects of the argument in turn.

[16] I accept that the operation of s.425 is premised on industrial action that is being engaged in. Unless protected industrial action is being engaged in, as distinct from being threatened, impending or probable, the section does not operate. Whether protected industrial action is being engaged in is a question of fact. An example of the absence of the jurisdictional trigger is the Tas Paper case. The facts of this case are distinguishable. Significant industrial action in the form of stoppages had occurred. Further bans were currently occurring. More significant industrial action in the form of stoppages was imminent at the date of the hearing. I find that the bans in place provide the jurisdictional trigger for the exercise of the Commission’s powers in the matter.

[17] The second aspect concerns the nature of relevant circumstances in considering the appropriateness of suspension. The MUA submits that only the current industrial action is relevant and in particular the planned 24 hour stoppages are not relevant. This submission arises from the wording of s.425 that the obligation on the Commission is to make “an order suspending protected industrial action…that is being engaged in” if satisfied that the suspension is appropriate.

[18] In my view this provision needs to be construed in the context of the Act and in particular the effect of s.413(7) that no protected industrial action can occur if an order suspending industrial action is in operation. The notion of a cooling off period appears to be to enable parties to resolve the matters at issue in the absence of protected industrial action. The provisions of the Act achieve this result by the combination of creating a power to suspend, which must be exercised in certain circumstances, and s.413 which deals with the consequences of making an order. It is appropriate to interpret s.425 in this context so that the appropriateness of suspension is considered in the light of the full consequences of any suspension, including the removal of protection for all subsequent industrial action for the duration of the cooling off period. The extracts from the Explanatory Memorandum quoted above support this construction.

[19] To interpret the provision more technically and narrowly, as the MUA contends, would be artificial and ignore the practicalities of the situation. I cannot see any reason of policy or statutory interpretation which would support such an approach. In my view the argument advanced by the MUA involves a restrictive and unrealistic interpretation of the provisions and contorts the intended operation of the section. It follows that in order to make the necessary assessment as to the appropriateness of suspension, it is appropriate to have regard to the industrial action happening and impending. In the event that I am wrong in this construction I propose to consider the matter on the basis of both alternative interpretations.

[20] The third aspect is the limit of any order suspending industrial action. The MUA contends that the limitation on the jurisdictional foundation and the focus of the assessment flows through to the power to make an order and limits any order to action that is being engaged in at the time of the hearing of the matter. Section 413(7) provides the answer to this submission. By operation of the Act, an order for suspension has the effect of removing a common requirement for protected industrial action. The scope of an order suspending protected industrial action needs to be construed by reference to the provisions of the Act. In my view the notion encompassed in the Act is to suspend all protected industrial action and an order should reflect this situation. The concept of an order being limited to specific action and impliedly permitting other future protected action is inconsistent with the scheme of the Act. The MUA argument in this regard should be rejected.

[21] The structure of s.425 requires the Commission to be satisfied that suspension is appropriate taking into account a non-exhaustive list of matters. It has been held in relation to similarly structured provisions of the Act that this requires the circumstance to be taken into account, considered and given due weight as a fundamental element in determining the ultimate question—in this case whether suspension of the protected industrial action is appropriate. 5 If findings in relation to the specified and other relevant considerations support the appropriateness of suspension, the Commission is required to suspend the action. This is in contrast to the suspension or termination because of significant economic harm, dealt with in s.423. In that section, suspension or termination is discretionary, even if the circumstances empowering such orders are found to exist. Further, as the context of the provisions of the Act make clear, protected industrial action is a right conferred by the Act and is properly regarded as legitimate. The approach to considering suspension under s.425 should therefore be a cautious one.

[22] I turn to consider the specified matters in s.425 in the context of this case.

Would suspension be beneficial to the bargaining parties because it would assist in resolving matters at issue?

[23] I have had regard to the evidence led in this matter, primarily through Mr Jones and his lengthy cross-examination. The involvement of Deputy President Booth in facilitating discussions between the parties has been regarded by both parties as useful. Over the Christmas period, while the Deputy President has been on leave, industrial action appears to have escalated rapidly. The escalation appears to relate to circumstances dealt with in correspondence between the parties on 14 January 2016. Mr Jones wrote to the MUA Deputy National Secretary, Mr Tracey in the following terms:

“I am writing in relation to the ongoing negotiations for the proposed enterprise agreement to replace the Patrick Terminals Enterprise Agreement 2012.

As you know, the parties have been engaged in extensive discussions facilitated by Deputy President Anna Booth of the Fair Work Commission. Many claims have been raised and discussed. The company has found the involvement of Deputy President Booth to be of assistance in the process, and we believe that the discussions in 2015 were constructive and saw the parties moving towards reaching agreement. The process is ongoing, and there are a number of issues which remain unresolved. These include claims dealing with matters that include:

• Coverage.



• Remuneration (including wages, superannuation and income protection).



• Redundancy.



• Transfer of business.



• Contractors.



• Dispute resolution.

These matters, along with others, are the subject of ongoing discussion and negotiation between the parties, with the assistance of Deputy President Booth. Some matters are yet to even be discussed in any meaningful way by the parties, such as the most recent position put forward by the union for rostering at Port Botany.

The company believes that there is significant further negotiation which is required, and that there is scope for compromise by both sides on a number of matters. The company is prepared to continue to seek agreement with the assistance of Deputy President Booth, and is open to more formal conciliation and, if necessary, arbitration to resolve all matters.

Against this background, the company was disappointed that the union decided to seek a protected action ballot order while constructive discussions were ongoing, and disappointed again to receive notification of a range of stoppages and bans. Indeed, these are to take place at times when the negotiating teams are due to meet on 20^th, 21^st and 22^nd January 2016. This does little to assist the parties to reach an agreement.

The company views the proposed industrial action as entirely premature in the circumstances, and believes that the parties should instead focus on the negotiations and seeking to reach an outcome in the near term. For this reason, we invite the union to withdraw all notices of protected industrial action and undertake not to provide further notices while negotiations are continuing. The company believes that this would be beneficial to the parties because it would assist in resolving the matters in dispute.

As you know, the parties some time ago agreed to meet on 20^th, 21^st and 22^nd January 2016. Deputy President Booth was not scheduled to attend these meetings, but only because she is unavailable for them. Given the recent escalation of matters, and the constructive nature of the earlier discussions chaired by her, the company believes that the meetings next week should be rescheduled to the earliest possible occasion on which Deputy President Booth is available. We will seek her available dates and be in touch to confirm arrangements.

In the meantime, please advise whether the union withdraws all current notices of protected industrial action by 4pm on Thursday 14^th January 2016.”

[24] Mr Tracey, on behalf of the MUA, responded as follows:

“I’ll keep the reply as short as I possibly can.

I don't have anything to say about your inaccurate summary of the negotiations to date suffice to say that it isn't reflected in the ongoing minutes and you haven't been at the discussions.

Patrick and your views on the PABO and notified action are noted. Neither should come as a surprise to Patrick because we informed the company at our last meeting prior to Christmas, in front of DP Booth, that we were going to do this unless we saw some meaningful movement from Patrick. Your correspondence prior to Christmas and actions prior and since have caused this current set of circumstances to occur. We will not be withdrawing the action and if Patrick refuses to meet next week we will escalate the action until you do meet. We have 3 days to meet next week to try and get a resolution to the agreement or at the very least a decent view of it- we are aware of the issues and they can be resolved without the presence of DP Booth although like you we acknowledge the very positive influence she had on the negotiations so far.

While we remain committed to the ongoing process before DP Booth, and understand the benefits to date, we will not consent under any circumstances to arbitration of the agreement.

The reality is we have seen very little movement from Patrick on some of our key issues, many of which you have clearly outlined, and we have been going at this for close to 12 months. Please confirm you will meet next week because we need to be absolutely clear that a refusal to meet will result in an escalation of the action. At the very least we will be able to close the gap on some matters and clarify for our next meeting with DP Booth what assistance we need and on what issues. In respect of your recent site correspondence I have cancelled my last week of leave to attend next week's meetings. We have already paid for airfares and accommodation for those attending.

One other point we wish to express is our anger and disgust at the opportunistic email correspondence your management in Fremantle has sent to Kim MacDonald from the West Australian seeking to link our action to the tragic and unfortunate situation of the South West bushfires. To misrepresent the impact of the action in this manner hoping to chase a headline is reprehensible behaviour and will get an appropriate response at an appropriate time - your Fremantle management has seriously miscalculated this tactic and the views of our membership in this Port. Our membership and Union have been contributing financially to the Union fund set up for assistance to those affected by these fires with many helping to actually fight the fires. This disgraceful behaviour of your Fremantle management is condemned by this Union and it's members in the strongest possible terms.”

[25] It appears from this correspondence that cancellation of meetings in preference to facilitated discussions by Deputy President Booth is a major factor in the escalation of industrial action. The industrial action reflects a deterioration in the negotiation process at a time when the assistance of Deputy President Booth was not available. Deputy President Booth had advised the parties that the week of 1 February 2016 is available for further facilitation of the negotiations. Whatever else may be said about the communications between the parties on 14 January, at least the parties appear to be agreed on the need for discussions aimed at bridging the gap between them.

[26] The evidence establishes that the matters in dispute include matters that involve cost implications and the need for senior level representation. Other matters involve the negotiation of clauses dealing with dispute settlement and consultation processes which require consideration of wording options and the careful balancing of competing interests. These matters require significant management input at a variety of senior management, line management and specialist advisory levels. It has been common for Patrick to have significant high level management involvement in the Part A negotiation sessions. On the union side there is involvement of site delegates, local organisers and federal officials. The negotiation sessions involve a large number of people and occupy entire days at a time.

[27] The evidence of Mr Jones establishes that during periods of industrial action terminal managers, operational managers and industrial relations managers have particular demands placed upon them in order to support the business and respond to the changed circumstances. The industrial action in the form of bans on shift extensions and overtime was explained by Mr Jones to effectively slow down the stevedoring operation on particular vessels because work cannot be conducted in an uninterrupted manner. There is a consequent need to plan alternative arrangements, whether it be changes in ship movements or alternative stevedoring arrangements. Mr Jones described the process as going into “firefighting mode” – which does not enable other time consuming and difficult processes to be given necessary attention. Mr Jones said that it is difficult for Patrick managers to make the time available to attend bargaining meetings before, during and after industrial action. These consequences arise from the imposition of bans but are exacerbated if the bans are supplemented by rolling stoppages.

[28] Mr Jones gave evidence that the MUA provided Patrick with a “settlement document” on 6 January 2016 and several notices of industrial action on 8 January 2016. Mr Jones states that the document requires discussion between the parties. That discussion has not occurred. The MUA states that this is because of the cancellation of meetings planned for the week of 18 January. Patrick states that the protected industrial action has hindered the process. I make no finding as to the fault of any party. However it is clear that the elevation of hostilities between the parties has precluded the processes of discussion and negotiation. The negotiations have advanced satisfactorily at some locations. At the Sydney terminal and at the Part A level there appears to be a need for considerable additional effort of the parties. On the evidence before me compromise on some of the issues is likely. The involvement of the Commission is also likely to be of assistance.

[29] I also have regard to the nature of the industry and the importance of Patrick to an important aspect of the Australian economy. The disruption of services to third parties is not the basis for this application. However, combined with the other circumstances, it is a relevant contextual consideration to the question of benefit to the parties in resolving issues. The issues in dispute are important to a major employer and require careful and detailed consideration. An escalated industrial campaign creates significant complications for that type of consideration.

[30] It could be said that bringing the negotiations to a head through more disruptive industrial action will assist in a resolution of the outstanding issues. In many cases that has been true. The union has every right to attempt to support its claims with industrial pressure. I am mindful that the MUA prefers to escalate its industrial action at this time and at the same time hold discussions with the company aimed at winning concessions. It has effectively submitted that suspension will not assist their side of the negotiating table. This is an important consideration. I do not consider that suspension undermines the claims or the bargaining position of the MUA or deprives it of the ability to support its claims with industrial action in the future.

[31] In all of the circumstances I am of the view that suspension of the protected industrial action would assist the bargaining representatives resolve the matters at issue. Provided the suspension is sufficient to enable proper discussion and consideration of revised positions and for the parties to access the assistance of Deputy President Booth I am of the view that suspension will assist in the relevant way. Because of the above considerations however, it would not be appropriate to suspend protected industrial action for a lengthy period. I have reached this conclusion on the basis of the current and pending industrial action. However I would reach the same conclusion if considering only the current industrial action.

The Duration of the Industrial Action

[32] The evidence before me establishes that since protected industrial action was authorised by an employee ballot on 23 December 2015, protected industrial action notices have been issued on 28 December 2015, 8 January 2016 (5 notices), 11 January 2016 and 15 January 2016 (2 notices). Indefinite bans at the Port Botany terminal have been in place since 6 January 2016. Other sporadic action is of lesser duration but at the time of the hearing had increased in intensity. Despite the disruptive nature of this industrial action there does not appear to have been any concessions by Patrick in response to the industrial action. Indeed the cancellation of meetings appears to represent some hardening of Patrick’s position. If only current industrial action is considered, the pending escalation would need to be disregarded.

Would Suspension of the Industrial Action be Contrary to the Public Interest or the Objects of the Act?

[33] It is appropriate in this regard to note the right to protected industrial action provided by the Act and the object of the Act in the following terms:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.”

[34] In my view the objective of cooperative and productive workplace relations suggests an emphasis on negotiation and exhaustive attempts to reach agreement. There is no suggestion of a lack of good faith in the bargaining process or any undermining of the process of enterprise level collective bargaining. The provisions of the Act regarding cooling off periods are part of the legislative scheme and an available step in appropriate circumstances. I am not of the view that suspension of protected industrial action is contrary to the object, or the public interest more generally. Indeed I consider that suspension is positively consistent with the public interest and the object of the Act. Any notion excluding the pending industrial action from consideration would limit the significance of an argument that removing a right to take protected industrial action is contrary to the public interest or the objects of the Act.

Conclusions

[35] Taking into account all of the circumstances and in particular the factors outlined above I decided to suspend protected industrial action because I was satisfied that suspension is appropriate. In coming to this assessment I considered that the suspension would be beneficial to the bargaining representatives because it would assist in resolving matters in dispute. I have considered the nature and duration of the industrial action. I am not satisfied that suspension is contrary to the public interest or the Object of the Act. Indeed suspension is consistent with the Object and the public interest. I have considered all other relevant circumstances raised by the parties in the evidence and submissions before me.

[36] The matters I am required to take into account point strongly towards the appropriateness of suspension. Even if the pending 24 hour stoppages were removed from consideration I would reach the same conclusion. I am therefore of the view that suspension is appropriate. As I am satisfied that suspension is appropriate I am required by the terms of s.425 to make an order suspending protected action.

[37] I consider that suspension for 35 days will enable detailed consideration before Deputy President Booth over the ensuing weeks and not deprive the parties of their options for the future. An order giving effect to my decision was issued on 22 January in conjunction with my decision in the matter.

VICE PRESIDENT

Appearances:

Mr D. Perry and Mr S. Crilly, of counsel, for Patrick Stevedores Holdings Pty Ltd.

Mr S. Crawshaw SC, on behalf of the MUA, with Ms E. Palmer and Ms S. Andronikos.

Hearing details:

2016.

Melbourne.

21 January.

Final written submissions:

Patrick Stevedores Holdings Pty Ltd on 21 January 2016.

 1   [2011] FWA 5006.

 2   [2009] FWA 1872.

 3   Minister for Tertiary Education, Skills, Jobs and Workplace Relations [2011] FWAFB 7444.

 4   Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65.

 5   ALH Group Pty Ltd trading as the Royal Exchange Hotel v Mulhall (2002) 117 IR 357 [51]. See also Smith v Moore Paragon Australia Ltd (unreported, AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) PR915674 [92]; Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

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