Re Seamen's Union of Australia; Ex Parte Cape Lambert Services Pty Ltd (In Liquidation)

[1991] HCA 35

HIGH COURT OF AUSTRALIA

Gaudron J.

RE THE SEAMEN'S UNION OF AUSTRALIA AND ORS

18 September 1991

Decision

GAUDRON J. Cape Lambert Services Pty. Limited (in Liquidation) ("Cape Lambert Services") is one of six prosecutors who seek relief by way of prohibition and certiorari with respect to two awards purportedly made by the Australian Industrial Relations Commission ("the Commission") pursuant to the Industrial Relations Act 1988 (Cth). The awards in question are The Tugboat Recruitment of Seafarers - Cape Lambert Services Pty. Limited Interim Award 1991 ("the Recruitment Award") and The Tugboat - Preservation of Employment - Cape Lambert Services Pty. Limited Interim Award 1991 ("the Preservation of Employment Award"). Cape Lambert Services is the only prosecutor bound by the awards. The other prosecutors claim to be directly affected by them and, in addition, they seek relief with respect to a finding as to the existence of an industrial dispute. However, these last matters have no bearing on the present application.

2. Cape Lambert Services is the wholly-owned subsidiary of the third prosecutor, Robe River Mining Company Pty. Limited ("Robe River"). The other prosecutors are joint venturers with Robe River in the mining and processing of iron ore in the Pilbara region. Robe River is the manager of the joint venture. Since 1988 and until 1 September 1991 and pursuant to agreement between Cape Lambert Services and Robe River, Cape Lambert Services provided tug and tow services for the joint venture at Port Walcott in Western Australia where the ore is processed and loaded into iron ore carriers for export. That service was provided with two tugs, the "Roebourne" and the "Tai-O", and a line boat, "Samson II".

3. Two new tugs have now arrived at Port Walcott. Their arrival was expected, and, in anticipation of that event, the Seamen's Union of Australia, the Merchant Service Guild of Australia and the Australian Institute of Marine and Power Engineers ("the Maritime Unions") sought the making of an award as to wages and conditions, including the composition of crews, for the new tugs. Those proceedings were heard by Deputy President Polites and it has been announced that an award is to be made on Monday next, 23 September 1991. Other issues involving the Maritime Unions and Cape Lambert Services have at various stages been the subject of proceedings before the Commission, including before Deputy President Polites.

4. The Recruitment Award and the Preservation of Employment Award were made by the Commission constituted by Mr Commissioner Fogarty on 19 June 1991, seemingly to secure the status quo pending completion of the proceedings before Deputy President Polites. They were made in proceedings brought after Cape Lambert Services gave notice to its tug and line boat employees terminating their employment with effect from 30 June 1991. The Preservation of Employment Award purports to prevent termination, other than for misconduct, pending the decision of Deputy President Polites.

5. On 18 June, Cape Lambert Services wrote to its employees, confirming that their employment would be terminated from 30 June 1990, but indicating that some employees would be employed as casuals for "the swing" which would ordinarily commence that day and that the others would be informed if they were required to work "the swing" which would ordinarily commence on 16 July. A swing is a period of rostered employment which is followed by a period of rostered leave.

6. On 27 June 1991, I granted an order nisi with respect to the Recruitment Award and made an order staying its operation. So far as it concerns the Protection of Employment Award, I referred the application for an order nisi for the consideration of the Full Court. The application for a stay was made on the basis that, if valid, the Recruitment Award prevented Cape Lambert Services from continuing the practice whereby persons employed by Robe River or its joint venturers in the processing plant at Port Walcott also performed work as deckhands on the tugs and line boat.

7. Also on 27 June, Cape Lambert Services wrote to its employees informing them that the validity of the Protection of Employment Award was under challenge and confirming its view that the notices of termination would take effect on 30 June. It was again stated that employees would be treated as casual employees from 1 July and that they would be employed for the duration of "the swing" to commence on that day. Nothing was said as to what was to happen on 16 July.

8. The Maritime Unions feared that, if the stay of the Recruitment Award were not lifted, Cape Lambert Services would terminate all employment with effect from 16 July; if the stay remained, there would be nothing to prevent recruitment of non-union labour to undertake whatever work was then available, including, if they arrived, on the new tugs. They made application to have the stay lifted. They also commenced proceedings in the Commission seeking reinstatement in the event that the Protection of Employment Award should be held invalid with the consequence that the notices of termination took effect.

9. On the hearing of the application to lift the stay, Cape Lambert Services offered an undertaking to the Court that persons employed as permanent employees on 30 June would be employed for "the swings" that they would normally have worked. The undertaking was expressed to "endure until the decision of Deputy President Polites or until a decision of this Court". The undertaking was accepted and the application to lift the stay was dismissed. At the same time liberty was reserved to Cape Lambert Services to apply to be relieved of its undertaking on three days' notice. An application to that effect is now before the Court.

10. This application is based on the situation that has now been brought about: the agreement between Cape Lambert Services and Robe River to provide tug and tow services "by an agreement dated 28 August 1991 (has been) terminated with effect from midnight on 1 September 1991" with the consequence that Cape Lambert Services now has no work for its employees; and, on 29 August, it was resolved at a general meeting of Cape Lambert Services that "the company be wound up voluntarily". As earlier indicated, two new tugs have arrived at Port Walcott. It is clear that the events which give rise to this application are directly related to their arrival. What is not clear is what consequence those events hold for the proceedings before Deputy President Polites. Nor is it clear whether the Recruitment Award, even if valid, can now have any practical application.

11. Cape Lambert Services no longer seeks to maintain the stay of the Recruitment Award. This being so and other things being equal, the ordinary course would be to lift the stay and to relieve it of its undertaking. The difficulty with that course is that it is not clear that all other things are equal. If, as seems likely, there is now no scope for the application of the Recruitment Award, there is no advantage to the Maritime Unions in the stay being lifted.

12. One matter is clear. The situation which gives rise to this application was brought about by Robe River, either acting alone or in concert with its wholly-owned subsidiary, Cape Lambert Services. And, whatever the motive for bringing about that situation, it was not to protect the interests of those employed on the tugs and the line boat at Port Walcott. In these circumstances I consider that Cape Lambert Services should be relieved of its undertaking only if it can establish that no detriment will on that account flow to the Maritime Unions or to their members at Port Walcott. It is clear from the affidavit filed in support of its application that Cape Lambert Services expected its application to be dealt with on some different basis. However, its counsel was alerted to the possible relevance of detriment, and, although alerted, made no application to call further evidence. Instead, he reiterated that there was no work for the employees of Cape Lambert Services, notwithstanding that someone must be crewing the new tugs, and repeated the need to finalize matters so that the liquidation could be completed.

13. In my view the possibility of detriment cannot be excluded. The persons employed at Port Walcott may well have ordered their lives on the basis that, even if its precise nature was unclear, their employment would at least continue until the matters before Deputy President Polites were determined. It is also possible that the Maritime Unions may have adopted or abandoned industrial strategies on the faith of the undertaking. And it is clear that the terms of the undertaking were made known to the Commission as constituted by Deputy President Polites and also as constituted to hear the proceedings for reinstatement, including an appeal as to the finding of a dispute as to that matter. Clearly, the undertaking was a matter which might bear on the course that the various proceedings in the Commission might take. It may have been material to the course that was selected. That being so and subject to a matter which, in the main, relates to the form of orders to be made, the application by Cape Lambert Services to be relieved of its undertaking must fail.

14. The undertaking was expressed to be "until the decision of Deputy President Polites or until a decision of this Court". As earlier indicated, it has been announced that an award is to be made with respect to the matters before Deputy President Polites on Monday next, 23 September 1991. That being so, the appropriate course is to lift the stay granted with respect to the Recruitment Award and to relieve Cape Lambert Services of its undertaking, both with effect when the award is handed down by Deputy President Polites or at twelve midnight, 23 September 1991, whichever is the earlier. An order will be made in those terms.

Orders

The stay granted with respect to the Recruitment Award be lifted and Cape Lambert Services Pty. Limited (in Liquidation) be relieved of its undertaking to this Court, both orders having effect when the award of the Australian Industrial Relations Commission is handed down in matters pending before Deputy President Polites or at twelve midnight on 23 September 1991, whichever is earlier.