Port Kembla Port Corporation v Michael Rowe
[2011] FWA 55
•6 JANUARY 2011
[2011] FWA 55 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Port Kembla Port Corporation
v
Michael Rowe and others
(C2010/6046)
VICE PRESIDENT WATSON | SYDNEY, 6 JANUARY 2011 |
Application for an order to stop industrial action - requirement of tug support in excess of port parameters - limitation on ship movements per shift - whether conduct is industrial action - whether action because of concern over safety can be industrial action - Fair Work Act 2009 ss 19, 418.
[1] This decision concerns an application under s 418 of the Fair Work Act 2009 (the Act) by Port Kembla Port Corporation (Port Kembla) for an order that industrial action by pilots at Port Kembla stop, not occur or not be organised. The pilots concerned are Mr Michael Rowe, Mr Chris Geraghty, Mr Robert Tanner and Mr David Balderston.
[2] The matter was listed for conference 31 December 2010. As the matter remained unresolved it was listed for hearing 5 January 2011. Mr Tony Woods, solicitor, represented Port Kembla and the pilots represented themselves.
[3] On the day of the hearing I handed down my decision for making an order. The reasons for my decision edited from the transcript are set out below. 1
[4] The application before the Tribunal is made under s 418 of the Act and that section requires Fair Work Australia (FWA) to make an order that industrial action stop, not occur or not be organised, as the case may be, if it appears to FWA that industrial action by one or more employees that is not protected industrial action is happening or is threatened, impending or probable or is being organised. That section is to be interpreted by reference to the other provisions of the Act including the definition of industrial action in s 19 of the Act. That definition defines industrial action by reference to types of conduct which amount to industrial action, and also exclusions in sub-section (2) whereby action which might otherwise be industrial action is not taken to be industrial action in particular circumstances.
[5] In the circumstances of this matter and on the evidence before me, it is clear that there has been a dispute between the pilots and Port Kembla concerning the number of tugs to be utilised for the movement of capesize vessels into and out of the port. The dispute has been the subject of various discussions and correspondence between the parties and has resulted in a position whereby the pilots believe that the safe operation of capesize vessels requires four tugs and the pilots have indicated, as a general position, that they require four tugs for the departure of such vessels in the future.
[6] The Port has responded to that position by indicating that it believes that the port parameters establishing three tugs for capesize vessels are sound and represent a safe working practice. The Port has generally rejected the notion put forward by pilots that four tugs are required for each capesize vessel movement and confirmed the position of three tugs which has been the practice since 2006. The dispute appears to be ongoing and may be referred elsewhere but at the Port has resulted in the position whereby the pilots have indicated a routine requirement of four tugs for capsize vessels in the future.
[7] In my view, the position of the pilots amounts to an intention to perform work in a manner different from that in which it is customarily performed and the adoption of a practice in relation to work which involves a limitation on performance of work. I take that view notwithstanding that on the evidence before me I do not believe that the position adopted by the pilots is in support of any industrial demand or claim. The pilots’ position is related to their concern for safety of movement of vessels, their belief that four tugs is a safer operational practice, and their indication that they wish to have the port parameters revised or reviewed or taken up further with relevant authorities under relevant New South Wales legislation to seek to have the port parameters modified.
[8] Sub-section (2) of s 19 contains exclusions to the definition of industrial action including that industrial action does not include action by an employee if the action is based on a reasonable concern of the employee about an imminent risk to his or her health or safety. On the evidence before me, I am not satisfied that the general position adopted by the pilots in relation to the number of tugs on capesize vessels amounts to such a circumstance. There may be particular weather conditions or other circumstances which do on occasion give rise to such a reasonable concern about imminent risk to health and safety but, as a general position, I do not believe that the concern of the pilots and their dispute with the Port amounts to or arises from such a reasonable concern.
[9] I am therefore of the view that the action of the pilots in requiring four tugs does fall within the definition of industrial action and that I am required to make an order that that action stop and not occur in accordance with s 418. In relation to this aspect of the matter, I consider it to be prudent in the order that there is a further exclusion to govern particular circumstances where as I have indicated because of weather conditions or other special circumstances there is a reasonable concern about an imminent risk to health or safety.
[10] The application also seeks an order more generally in relation to industrial action but specifically in relation to a practice whereby the number of shift movements per shift is limited to four.
[11] I am satisfied that such a limitation is inconsistent with the enterprise agreement and also amounts to a limitation on the performance of work within the meaning of s 19 of the Act. A question arises from the submissions on behalf of the pilots as to whether the action is authorised or agreed to by the employer by virtue of an agreement reached regarding rostering principles. On a proper reading of that document and read in conjunction with the enterprise agreement, I do not believe that the limitation does fall within the description of action that is authorised or agreed to by the employer of the employees. The Port has made it very clear in its submissions today as to its position and its interpretation and reliance on the terms of the enterprise agreement and that establishes to my satisfaction that there is no agreement by the Port to the practice of working on only four ship movements per shift.
[12] For those reasons, I will make an order substantially in terms of the order sought by Port Kembla in these proceedings. I note in particular what has been said by the pilots in relation to health and safety concerns and a desire to seek an ongoing review, and I note that those avenues appear to remain available to the pilots to deal with the matter in that way, but in the interim the practice or the position adopted of requiring four tugs on capesize vessels will be subject to the order I make under s 418 of the Act. 2
VICE PRESIDENT WATSON
Appearances:
T Woods, solicitor, for Port Kembla Port Corporation
M Rowe, D Balderston and C Geraghty on their own behalf
Hearing details:
2011
Sydney
January 5
1 Transcript of proceedings, 5 January 2011 at PN585 - 592
2 PR505662
Printed by authority of the Commonwealth Government Printer
<Price code A, PR505675>
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