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Re Svitzer Australia Pty Limited

Re Svitzer Australia Pty Limited

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Case Copied 22 November 2022 30 min read

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[2022] FWCFB 213

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.424—Industrial action

Re Svitzer Australia Pty Limited

(B2022/1726)

ACTING PRESIDENT HATCHER

DEPUTY PRESIDENT CROSS

DEPUTY PRESIDENT EASTON

SYDNEY, 22 NOVEMBER 2022

Suspension or termination of protected industrial action – endangering life etc – acting on Commission’s own initiative.

Introduction

For more than three years, Svitzer Australia Pty Limited (Svitzer) has been bargaining for a new enterprise agreement with three unions acting as bargaining representatives: the Australian Maritime Officers’ Union (AMOU), the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) and the Australian Institute of Marine and Power Engineers (AIMPE). The proposed new agreement is to replace the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016[1] (2016 Agreement). The 2016 Agreement applies to Svitzer and its employees and trainees in relation to work performed by them on tug boats in or about 17 identified ports in Australia.[2] The AMOU, the MUA and the AIMPE are covered by the 2016 Agreement. Its nominal expiry date was 31 December 2019.

On 14 November 2022, Svitzer gave notice to the bargaining representatives pursuant to s 414(5) of the Fair Work Act 2009 (Cth) (FW Act) of employer response action in the form of an indefinite lockout of all harbour towage employees covered by the 2016 Agreement commencing at midday on 18 November 2022. A media release issued by Switzer on the same day[3] relevantly stated:

“…
This step is being taken in response to industrial action which has made it difficult for Svitzer to run its operations.

This is harming Svitzer’s ability to reliably, safely and efficiently serve our shipping customers and port operations around the country and is causing serious disruption to the national supply chain which is reliant on shipping.

Protected industrial action

There have been more than 1100 instances of industrial action notified by the maritime unions since October 2020. Since 20 October 2022, there have been more than 250 instances of protected industrial action alone, amounting to nearly 2000 hours of work stoppages. There is new protected action being notified by the unions on an almost daily basis.

With each instance of industrial action valuable imports and exports are delayed, disrupted, or goods and produce lost.

Svitzer has had to respond to the protected industrial action as a matter of necessity with one of the few avenues available to employers faced with such action.

When the lockout becomes effective, no shipping vessels will be towed in or out of 17 Australian ports otherwise serviced by Svitzer.

This will impact shipping operations at major metropolitan and regional Australian ports nationwide in Queensland, New South Wales, South Australia and Western Australia.

Extensive bargaining

Svitzer has been bargaining with the maritime unions for over three years, since the agreement expired in 2019. Despite Svitzer’s best efforts to reach a reasonable agreement, the parties remain apart on key threshold issues. There has been exhaustive bargaining in 75 meetings, including 2 conciliation sessions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCFB 213
Decision Date: 22 NOVEMBER 2022

CaseChat Overview and Summary

In the case of Re Svitzer Australia Pty Limited, the Fair Work Commission was called upon to address an application made by Svitzer Australia Pty Limited for the suspension or termination of industrial action taken by its employees. The dispute arose in the maritime industry, involving the provision of towage services, and was heard by the Fair Work Commission, Australia's workplace relations tribunal. Svitzer Australia argued that the industrial action, which involved the employees refusing to perform certain tasks, posed a significant risk to safety and endangered lives, thus warranting intervention by the Commission.

The legal issues central to the Commission's decision focused on whether the industrial action could be suspended or terminated under the Fair Work Act, specifically considering sections that allow the Commission to act on its own initiative when there is a risk to health and safety. The primary consideration was whether the refusal to perform specific tasks by the employees constituted a threat severe enough to warrant intervention. Additionally, the Commission needed to determine whether the actions of the employees could be considered as protected industrial action, which is protected from legal repercussions under the Fair Work Act.

The Commission found that the industrial action indeed posed a serious risk to safety, as the employees' refusal to perform certain tasks could lead to hazardous situations at sea. The Commission concluded that the potential for endangering lives and property was substantial, thereby justifying its intervention. The Commission held that the actions of the employees, while protected under the Act, could not be allowed to continue if they endangered safety. Consequently, the Commission ordered the suspension of the industrial action on the basis that it endangered life and safety, invoking its powers under the Fair Work Act.

The final orders of the Commission included the suspension of the industrial action taken by Svitzer Australia Pty Limited’s employees until such time as satisfactory safety measures were implemented. The decision underscored the Commission's role in balancing the rights of employees to engage in protected industrial action with the paramount need to ensure workplace safety.

Orders