Qube Ports Pty Ltd T/A Qube Ports & Bulk v Construction, Forestry, Maritime, Mining and Energy Union - the Maritime Union of Australia Division

[2019] FWC 2066

[2019] FWC 2066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action
s.611—Costs

Qube Ports Pty Ltd T/A Qube Ports & Bulk
v
Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division
(C2019/1111)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 2 APRIL 2019

Application for an order that industrial action stop, not occur or not be organised – alleged industrial action at Sydney's Overseas Passenger Terminal – order not issued – applications for costs by both parties against each other – Fair Work Act 2009 (Cth) s.611 – whether it should have been reasonably apparent that applications had no reasonable prospect of success – costs not ordered – both costs applications dismissed.

[1] On 1 March 2019, the Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division (CFMMEU) applied to the Fair Work Commission (the Commission) for an order that Qube Ports Pty Ltd (Qube) pay its costs in this matter pursuant to s.611 of the Fair Work Act 2009 (Cth) (the FW Act). On 7 March 2019, Qube filed a counter-claim for costs under s.611 against the CFMMEU, in relation to the CFMMEU’s costs application.

[2] The CFMMEU seeks an order that Qube pay some of its costs – specifically, those arising from the second day of hearing on 22 February 2019 of Qube’s application for an order under s.418 of the FW Act. In particular, the CFMMEU submits that the Commission can be satisfied that it should have been reasonably apparent to Qube, by at least 22 February 2019, that its application had no reasonable prospect of success.

The proceedings

[3] The Commission received Qube’s s.418 application at 12:14 pm on 21 February 2019. The application was accompanied by an email from Mr McDonald of Moray & Agnew Lawyers, which included the following:

‘The application is URGENT and relates to the loading and unloading of the cruise ship ARCADIA which is due to depart Sydney today.’

[4] The application was listed for hearing at 2:00 pm the same day (21 February 2019).

[5] At the hearing, Qube was represented by Mr McDonald and the CFMMEU by Philip Boncardo, of counsel.

[6] Qube filed a witness statement from its Shift Manager, Jamie Boyanton. 1 Mr Boyanton was cross-examined by Mr Boncardo.

[7] In his statement, Mr Boyanton indicated that he had commenced work at 5:30 am that day at the Overseas Passenger Terminal. Qube is engaged by cruise line operator Carnival to stevedore passenger vessels. The vessel being stevedored that morning was the Carnival cruise ship Arcadia. In his statement, Mr Boyanton said:

‘…at approximately 0815 hours, a union official named Paul Keating and his associate, Matt, last name unknown, attended the Sydney wharf, overseas passenger terminal. They were demanding that they were union representatives and that we need to cease operations.

I was in the office when a Qube employee, Stuart McCracken, approached me and said something along the lines of, “you need to get out there, there is a union bloke demanding us to stop work now”. Stuart also stated, “these same guys had literally jumped in front of me and onto his forklift while I was trying to operate my forklift, they were demanding that I cease operations immediately”. Stuart told me, “at this point I parked my forklift and proceeded to come and talk to you, my supervisor”. Stuart said words to the effect, “I want you to go out and talk to these guys and find out what is happening…”

I went out to speak to the union officials, Paul Keating and Matt. Keating approached me and stated, “I am here as the union representative and was here to issue an inspection on Carnival and the ship on the wharf (Arcadia)”. He stated that, “it has nothing to do with Qube and that I am doing an inspection on Carnival” and “you need to stop unloading the ship of its stores, as it is against the Australian maritime regulations.” I asked, “What operations can I continue with?” Matt said, “Linen, rubbish, general stores are not allowed to be discharged from the ship, it’s an Australian job and not the ship’s responsibility for the unloading of the ship.

As there were too many people gathering on the wharf including members of the public, I suspended operations, and (sic) it was unsafe for forklift drivers to operate…Operations were suspended for about 15-20 minutes before I directed my team to resume their work.’ 2

[8] Mr Boyanton’s statement went on to describe how the two union officials then walked around the site taking photos. After about 15 minutes, in response to a request from Mr Boyanton, they left the operating area. 3

[9] According to Mr Boyanton’s statement, Mr Keating told him that ‘It has nothing to do with Qube’, but rather that he had concerns with ‘practices that were taking place by Carnival personnel.’ 4

[10] At the end of his statement, Mr Boyanton said:

‘I am very concerned that Keating and Matt will continue to try and disrupt Qube’s operations over coming … days and weeks because of some vendetta they seem to have against Carnival.’ 5

[11] In response to an objection from Mr Boncardo, I agreed to allow the comments attributed to Mr McCracken into evidence, but said:

‘…I would not normally give any hearsay great deal of weight. I would need more than just hearsay evidence.’ 6

[12] In his oral evidence, Mr Boyanton said that he asked the union officials what they were doing:

‘They told me that Qube wasn’t the issue and they were conducting inspections in regards to Carnival and the ship. …

…They said that I need to cease discharge of the cargo as it’s Australian jobs and we’re investigating the matter. I asked them what can I do to keep the job continuing so we didn’t stop and they just informed me that the stuff that we had lined up, the fresh food, we were allowed to put that on the ship.’ 7

[13] Mr Boyanton said that Mr Keating told him to stop unloading. He was then asked whether any of the employees stopped unloading and he said:

‘Well, they had stopped and that’s why Stuart came to me.’ 8

[14] I asked Mr Boyanton:

‘Just to be clear, you’re saying that your employees had stopped unloading before Stuart came to you, to talk to you? So when you went out there, there was no unloading going on, or what’s happening? --- No, there wasn’t no. because Stuart was actually told to stop there. He walked straight in and was trying to work out as to why.’ 9

[15] In cross-examination, Mr Boyanton agreed that no Qube employees were on strike at that moment; they were all working, and the ship was being unloaded. 10

[16] Mr Boyanton agreed that the work appeared to be ‘back on track’ when he was last at the terminal, with everything that needed to be loaded or unloaded to enable the ship to depart on time. 11

[17] Mr Boyanton agreed with Mr Boncardo that after the union officials had told him that in their view the ship should not be unloaded because there was a breach of maritime regulations, he instructed the employees to cease the unloading, and to do other work that that the union officials said could be done. 12

[18] Mr Boncardo asked Mr Boyanton:

‘They [the employees] have complied with your instructions and other managers of Qube’s instructions to work as normal since the union officials were there? --- The only time we stopped was due to the fact that it was unsafe on the wharf [because there were too many people gathered there].

It was unsafe on the wharf. That was a direction that you gave? --- That was my call, yes.

I see, and the employees complied with that direction? --- Yes.

You’re not suggesting that was a direction that came from the union officials, are you? --- Well yes there was. They told us to stop, cease.

But you directed the employees to cease work because you thought it was unsafe, correct? --- That’s right, yes.

Thank you. And you directed them to recommence work when you thought it was safe and they complied with that instruction? --- Yes.’ 13

[19] Qube then called a second witness, Rita Antranik, its Operations Manager for Port Kembla and Sydney. She said that Qube loaded and unloaded vessels from Carnival and P&O. 14 She said there would be further work undertaken on a Carnival vessel the next day, 22 February 2019, at the White Bay terminal.15

[20] Ms Antranik indicated that she had visited the Overseas Passenger Terminal that day and had some discussions with the police. 16 She said that when she left the terminal at 1:15 pm, unloading was proceeding as normal.17

[21] Ms Antranik said she had no reason to believe there would be any industrial action on 21 February 2019, but that she thought it was possible that it could occur the next day.

‘I’m concerned that there may be and the reason for that is that why would today’s operations be any different to tomorrow or the following. The same operations that occurred today will be occurring tomorrow and so forth. So my concern is that they may come back again.’ 18

[22] The CFMMEU called its Acting Assistant Secretary, Matthew Goodwin, as a witness. Mr Goodwin said he had attended the overseas passenger terminal at 7:30 am that day. 19

[23] Mr Goodwin said that he and Mr Keating had concerns about particular safety breaches with regard to the operation of the terminal, including breaches relating to the separation of plant and personnel. 20

[24] Mr Goodwin said that when he and Mr Keating arrived at the terminal, they witnessed some activities that caused them some concern.

‘So we did indeed see pedestrians and mobile plant including forklifts interacting in a dangerous manner. We saw a person wearing high heels, no safety footwear and no PPE walking in amongst moving forklifts in an active cargo operation area. We saw some cargo being loaded and unloaded from hatches on the side of the vessel, in a manner that gave us cause for concern, specifically bags falling off pallets and being handed up by hand over the top of the water and we had a concern as to whether or not that fell within the safe work method statements in the terminal. It seemed like a dangerous practice.’ 21

[25] Mr Goodwin said he tried to issue a written notice under the Work Health and Safety Act 2011 (NSW), 22 but representatives of Carnival and the Port Authority of NSW (the Port Authority) had refused to receive it.23

[26] Mr Goodwin said that he and Mr Keating then proceeded with a ‘routine safety inspection, observing the activities taking place, trying to identify hazards, inspecting the work area, trying to identify safety issues that we could enquire into in order that they be rectified.’ 24

[27] Mr Goodwin said that he did not at any point speak with any Qube employees about them ceasing work. 25 He did, however, speak to them ‘about safety issues in the work area.’26

[28] Mr Goodwin again said that he did not demand that any Qube employees stop work, nor did he see any work ceasing. 27

[29] Mr Goodwin did, however, say that he saw seafarers engaging in unlawful loading and unloading activities under s.94 of the Navigation Act 2012 (Cth) (the Navigation Act). 28

[30] Section 94 of theNavigation Act prohibits employing seafarers at an Australian port to handle cargo in connection with the loading or unloading of a regulated Australian vessel or a foreign vessel:

(a) if sufficient shore labour is available; or

(b) if sufficient shore labour is not available--other than in accordance with any requirements prescribed by the regulations.

[31] Mr Goodwin said he spoke to some of the crew members of the ship that he said were doing work in contravention of the Navigation Act, and ‘an officer came and they just determined to pause those operations’. 29 He denied that he had instructed them to pause those operations. He did not see Mr Keating do so either.30

[32] Mr Goodwin denied that he or Mr Keating had jumped out in front of Qube employees while they were operating forklifts. 31

[33] Mr Goodwin said that he had spoken to Mr Boyanton and pointed out his concerns about breaches of the Navigation Act by the seafarers working for Carnival.

‘Then he said does work need to stop and I explained that no, you can carry on with food stores, food. There were pallets of fruit and vegetables, fresh produce, water and so forth, gas in cylinders. I said that’s all fine. That’s not going to be a problem for them. There’s no reason why work couldn’t continue with all that stuff.’ 32

[34] Mr Goodwin described how representatives of the Port Authority and Carnival told him and Mr Keating they had to leave the premises. The police then attended the scene around 9:30 am. Mr Goodwin explained to them that they had a right to be on the site pursuant to the State work health and safety legislation. Nonetheless, the police insisted on them leaving, which they did. 33

[35] Mr Goodwin said they had not been back to the site since, had had no communications with any Qube workers, did not intend to communicate with Qube workers, did not intend to instruct any Qube workers to cease work and had never had any intention to do so. 34

[36] Mr Goodwin was then asked by Mr Boncardo:

‘Do you have any intention or are you aware if the Maritime Union of Australia branch of the CFMMEU has any plans, intentions to direct any employees of Qube to cease work?---We do not.’ 35

[37] I then asked whether Mr Goodwin planned to attend the White Bay terminal the next day, where a Carnival vessel was expected to dock.

‘No, I have no plans to attend White Bay tomorrow. I’m not aware if there is or isn’t a cruise vessel coming in to Darling Harbour tomorrow, or whether it’s Carnival or any of the other companies.’ 36

[38] Mr McDonald did not ask Mr Goodwin any questions at that point, but requested a short adjournment. 37 When the hearing resumed, Mr McDonald asked for the matter to be ‘stood down’until the following afternoon.

[39] Mr McDonald said:

‘…A number of matters have fallen from this witness that warrant further consideration and instructions which I haven’t been able to get in the time available.

We know what’s fallen from the witness in terms of saying that there’s organised in relation to tomorrow in relation to the Carnival ship, which is gratifying.’ 38

[40] Mr Boncardo opposed the application for an adjournment:

‘… We’ve been brought here to meet a fundamentally flawed case. A case in respect to employees who – the highest the applicant’s case gets, stopped working because their manager told them to stop work. There is no industrial action occurring. There is no evidence of any industrial action threatening, impending or probable and there’s no evidence of any industrial action being organised.

The application in my submission should simply be dismissed. In the event that my friend’s client has concerns and has a real basis for bringing an application, they can make another application. To stand the matter over to allow my friend to fix up his case which I presume is what’s going to occur, is not appropriate, particularly in circumstances where these matters need to be dealt with expeditiously…’ 39

[41] I suggested to Mr McDonald that he might consider withdrawing the application ‘and if there’s further trouble, in your view, you could obviously make a further application. Would you consider that?’ 40

[42] Mr McDonald made it clear he still wanted an adjournment. I concluded the hearing by saying:

‘I think I will adjourn it till tomorrow. I’ll adjourn these proceedings till 2 o’clock tomorrow, but I want you to consider withdrawing them – I mean quite frankly if nothing happens tomorrow morning, then I think you would have – you would want to think about seriously withdrawing. So if you do, can you let me know and obviously the respondent know as soon as possible.’ 41

[43] The application was not withdrawn. The hearing resumed at 2:10 pm on 22 February 2019. Mr Boncardo then elicited some further oral evidence in chief from Mr Goodwin.

[44] In particular, Mr Godwin said that since the conclusion of the hearing on 21 February 2019, neither he nor any other officials of the CFMMEU had had any contact with any Qube employees, attended any premises where Qube employees were performing work, or done anything to encourage, organise or otherwise incite Qube employees to take industrial action. He further denied that it was his or the CFMMEU’s intention to do anything of that kind. 42

[45] Mr McDonald then proceeded to cross-examine Mr Goodwin. He asked him a series of questions about what he had said to Mr Boyanton. For example, he asked him whether he had indicated to him that he had any difficulty with Qube staff discharging linen, rubbish or general stores from the ship. Mr Goodwin responded:

‘I didn’t have any difficulty with any activities that Qube employees were doing. My difficulty was with what I suspected to be a breach of the Navigation Act by Carnival and I made the officer of the vessel aware of that. I reported back to the gentleman those conversations, but I didn’t express any difficulty with what Qube were doing.’ 43

[46] In answer to a question from me, Mr Goodwin said he intended to take up the alleged breaches of the Navigation Act with the Australian Maritime Safety Authority (AMSA). 44 He said the CFMMEU had also identified some safety issues which came within Qube’s control, which would be taken up with Qube directly.45 Mr Goodwin repeatedly made clear that any further concerns the CFMMEU had with Carnival would not lead them to interfere with the way that Qube employees worked.

[47] Mr McDonald also referred to a Facebook post that Mr Goodwin had made the previous evening that included pictures from the site visit to the Overseas Passenger Terminal undertaken that day, and indicated that:

‘MUA has an ongoing campaign to improve jobs and safety for our members who supply these huge passenger ships every day.’ 46

[48] Following Mr Goodwin’s cross-examination, the applicant was given a short adjournment. On recommencing, Mr McDonald said:

‘We note what’s fallen from the witness and I’ve had an opportunity to take instructions in relation to the continuance of the application. It would seem as though what’s being put in the evidence by the MUA is that there’s no industrial action happening, threatened, impending or probable and there’s no industrial action being organised in relation to Qube Ports employees.

If that be the case, we wouldn’t pursue the application. If that’s not the case and the MUA can indicate – the union can indicate if the position is otherwise, there wouldn’t be a need for us to pursue the application.’ 47

[49] Mr Boncardo said he did not see why he should have to give some sort of undertaking simply because Qube did not have a prima facie case. 48

[50] I put to Mr McDonald that based on the evidence – particularly the evidence given that afternoon - there was no basis for thinking that industrial action was threatened, impending or probable, or being organised.

[51] Mr McDonald responded by saying that the company was concerned about the events of the previous day and that there might be a campaign being organised. However given the CFMMEU’s indication that there was no industrial action being organised in relation to Qube, the application was withdrawn. 49

The CFMMEU’s costs application

[52] Section 611 of the FW Act relevantly provides as follows:

‘611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.’

[53] The CFMMEU has applied for costs in relation to the second day of hearing on 22 February 2019, relying on the ground set out in s.611(2)(b).

[54] The CFMMEU submitted that Qube’s claim, when it filed its application for an order under s.418, that industrial action was happening or threatened or impending or probable was, as it emerged at the hearing on 21 February 2019, without basis. The highest Qube’s case could reasonably have been put was that industrial action was ‘being organised’.

[55] Qube’s own witness, Mr Boyanton, gave evidence that all Qube employees were working and no industrial action was happening when he left the terminal to attend the hearing. The only time that work had stopped was when it became unsafe on the wharf and he had directed the employees to cease work. Ms Antranik confirmed that work was continuing as normal.

[56] The CFMMEU submitted that to the extent there was any doubt about industrial action being organised, Mr Goodwin’s evidence dispelled that.

[57] At 12:49 pm on 22 February 2019, the CFMMEU communicated with Qube’s solicitors, noting that no industrial action was happening, threatened, impending, probable or being organised, and that none of the jurisdictional prerequisites to the making of orders under s 418 were capable of being satisfied. The CFMMEU put Qube on notice that its application was without reasonable prospect, should be withdrawn and, if it was not withdrawn, an application for costs would be made.

[58] The CFMMEU submitted that:

‘Objectively assessed, having regard to the evidence on 21 February and the fact that no industrial action was happening, threatened, impending or probable or being organised at the time the matter returned to the Commission at 2:00pm on 22 February, Qube’s application was manifestly untenable and groundless. It should have been readily apparent to it, by at least this time that its application was without reasonable prospects of success. The application was entirely lacking in merit or substance.’

[59] A Full Bench of this Commission in Qantas Airways Limited v Carter 50 considered the approach that should be adopted in relation to applications made under s.611 of the FW Act:

‘[19] We now turn to s.611(2)(b). The approach to be taken to considering whether such a finding should be made is summarised in the decision of the Full Bench in Baker v Salva Resources Pty Ltd (Baker). The relevant extract is as follows:

“The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:

● “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis rather than a subjective test; and

● a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable.”

[20] It is clear from the terms of s.611 of the Act that the point at which the Commission must determine whether or not Qantas' application to appeal was vexatious, without reasonable cause or had no reasonable prospect of success, is when Qantas made the application to appeal.’ [my emphasis; references omitted]

[60] The circumstances, as they appeared to the applicant at the time the s.418 application was made, were as outlined in Mr Boyanton’s evidence. Some of this evidence, particularly that based on what Mr McCracken told Mr Boyanton, was hearsay and of limited objective value. Nevertheless, as noted earlier in my summary of the evidence, when Mr Boyanton went outside after Mr McCracken had told him the union officials had told the employees to cease work, he saw for himself that there was no unloading going on. This was at least prima facie evidence that industrial action was occurring in response to a direction from the two union officials.

[61] True it is that by the time the hearing commenced, work was continuing as normal. Moreover, Mr Goodwin’s evidence cast considerable doubt as to whether there had in fact been any industrial action at all (as opposed to a somewhat abortive site safety visit). However, it is also true that the union officials’ concerns with the way that the Carnival ship was being loaded and unloaded had not been resolved, and it was not entirely unreasonable for Qube to be concerned about further disruption.

[62] Given that no further disruption had occurred in the morning of 22 February 2019, it would probably have been appropriate for Qube to have discontinued its application without the need for a second hearing. However, it was not entirely unreasonable for Qube to have some lingering doubts, given the previous morning’s events. Certainly whatever doubts that might have remained about the possibility of further industrial action were dispelled by Mr Goodwin’s forthright oral evidence. After that evidence, Qube quite properly withdrew its application.

[63] In the circumstances, I am not satisfied that it should have been reasonably apparent to Qube that its application had no reasonable prospect of success – at least, not at the time it was made. The CFMMEU’s application for costs is accordingly dismissed.

Qube’s costs application

[64] Qube has sought costs against the CFMMEU pursuant to s.611(2)(b) of the FW Act, because at the time that the CFMMEU made its application for costs, it should have been reasonably apparent that it had no reasonable prospect of success. In particular, it should have been so apparent because it was seeking costs in relation to circumstances arising after the s.418 application had been filed, when such costs are excluded by s.611 of the FW Act.

[65] I am not satisfied that it should have been reasonably apparent to the CFMMEU that its costs application had no reasonable prospect of success. No industrial action was occurring when the s.418 application was made, and Qube had only a very limited basis for considering that any further industrial action was being organised (if there had been anything that constituted industrial action in the first place).

[66] In the circumstances, the CFMMEU’s costs application was not unreasonable (even if it was ultimately unsuccessful).

[67] Qube’s costs application is accordingly dismissed.

SENIOR DEPUTY PRESIDENT

<PR706323>

 1   Exhibit 1.

 2   Ibid [6]-[9].

 3 Ibid [10].

 4   Ibid [13] and [15].

 5 Ibid [18].

 6   PN81.

 7   PN93-4.

 8   PN112.

 9   PN113.

 10   PN127-31.

 11   PN136.

 12   PN146-55.

 13   PN156-61.

 14   PN191.

 15   PN195, 254.

 16   PN206-23.

 17   PN229.

 18   PN253.

 19   PN305-6.

 20   PN308, 312.

 21   PN314.

 22   Exhibit 3.

 23   PN319.

 24   PN330.

 25   PN331.

 26   PN333.

 27   PN342-4.

 28   PN345.

 29   PN349.

 30   PN350-1.

 31   PN354.

 32   PN358.

 33   PN363-71.

 34   PN374-8.

 35   PN379.

 36   PN380.

 37   PN390.

 38   PN395-6.

 39   PN398-9.

 40   PN401.

 41   PN409.

 42   PN426-9.

 43   PN453.

 44   PN482.

 45   PN483.

 46   Exhibit 4.

 47   PN583-4.

 48   PN586.

 49   PN589-91.

 50   [2013] FWCFB 1811.

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