Re Svitzer Australia Pty Limited - [2022] FWC 3038

[2022] FWC 3038

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

Fair Work Act 2009

s.424—Industrial action

Re Svitzer Australia Pty Limited

(B2022/1726)

VICE PRESIDENT HATCHER

SYDNEY, 15 NOVEMBER 2022

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

Background

For more than three years, Svitzer Australia Pty Limited (Svitzer) has been bargaining for a new enterprise agreement with three unions: the Australian Maritime Officers’ Union (AMOU), the Maritime Union of Australia Divisions of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) and the Australian Institute of Marine and Power Engineers (AIMPE).

On 14 November 2022, Svitzer issued a media release stating that it had given notice to all harbour towage employees covered under its 2016 National Towage Enterprise Agreement and to the AMOU, MUA and AIMPE of a lockout that will take place from 12:00 pm AEDT, Friday 18 November 2022, and will continue indefinitely.[1] The media release states:
“…
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.
…”

(emphasis added)

Svitzer’s announcement has caused the Commission to consider making an order under s.424 of the Fair Work Act 2009 (FW Act) on its own initiative to suspend or terminate protected industrial action by Svitzer.

Relevant provisions

Section 408(c) of the FW Act provides that “employer response action” for an enterprise agreement is protected industrial action.

Section 411 of the FW Act defines “employer response action” as:
411 Employer response action
Employer response action fora proposed enterprise agreement means industrial action that:
(a) is organised or engaged in as a response to industrial action by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who will be covered by the agreement; and
(b)…

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.

Keep reading for free

Create a free CaseChat account to read Re Svitzer Australia Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 3038
Decision Date: 15 NOVEMBER 2022

CaseChat Overview and Summary

The Fair Work Commission heard an application by Svitzer Australia Pty Limited to suspend or terminate industrial action by its employees. The dispute arose as part of ongoing negotiations between Svitzer and maritime unions over a new enterprise agreement. Svitzer announced a lockout of its harbour towage employees, claiming that industrial action by the unions was disrupting shipping and port operations and causing significant damage to the national supply chain. The Commission had to determine whether the industrial action endangered the Australian economy or part of it, which would warrant the suspension or termination of the action under s.424 of the Fair Work Act 2009.

The Commission considered whether the industrial action had caused or threatened to cause significant damage to the Australian economy. The evidence included the significant number of instances of industrial action since 2020, which had led to delays and disruptions in shipping operations, with the potential to impact the national supply chain. The Commission noted that similar industrial action in the past had led to significant economic disruptions, which prompted the previous order to suspend the action. The Commission also needed to assess the current situation and whether the announced lockout by Svitzer would cause further significant damage to the economy.

The Fair Work Commission concluded that the industrial action threatened to cause significant damage to the Australian economy, similar to the industrial action previously suspended by the Commission. The Vice President was satisfied that the current industrial action by the maritime unions and the lockout by Svitzer had the potential to cause serious disruptions to shipping and port operations, which could threaten the national supply chain and the broader economy. Therefore, the Commission made an order suspending the industrial action on its own initiative under s.424(2)(a) of the Fair Work Act 2009.

The Fair Work Commission issued an order suspending the industrial action by the maritime unions and the lockout by Svitzer. The order was made under s.424(1) of the Fair Work Act 2009, as the Commission was satisfied that the industrial action threatened to cause significant damage to the Australian economy. The order aims to prevent further disruptions to shipping and port operations, which could have severe consequences for the national supply chain and the broader economy. The Commission will continue to monitor the situation and may make further orders if necessary.

Orders