Svitzer Australia Pty Ltd v The Australian Institute of Marine and Power Engineers

[2016] FWC 362

[2016] FWC 362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Svitzer Australia Pty Ltd
v
The Australian Institute of Marine and Power Engineers
(B2016/195 and C2016/2232)

VICE PRESIDENT WATSON MELBOURNE, 20 JANUARY 2016

Application by Svitzer Australia Pty Ltd that industrial action by employees stop, not occur and not be organised – whether industrial action is protected industrial action – application that protected industrial action be terminated – whether industrial action would threaten to endanger life, personal safety or health or welfare of the population – Fair Work Act 2009, ss.418, 424.

[1] This decision, edited from a decision on transcript on 15 January 2016, concerns two applications by Svitzer Australia Pty Ltd (Svitzer).

[2] The first is an application, under s.418 of the Fair Work Act 2009 (the Act), that an order be made that industrial action by employees of Svitzer stop, not occur and not be organised. The employees concerned are employed by Svitzer and are members, or eligible to become members, of The Australian Institute of Marine and Power Engineers (AIMPE). The order is sought against the AIMPE, including its office holders, employees and agents, and those of its delegates who are employees, and employees of Svitzer.

[3] The second application before the Commission is an application, under s.424 of the Act, that the protected industrial action be terminated on the ground, in s.424(1)(c) of the Act, that the action threatens or would threaten to endanger the life, the personal safety or health or the welfare of the population or a part of it.

[4] At the hearing of the matters on 15 January 2016 Mr M Easton of counsel appeared on behalf of Svitzer and Mr B McNally and Mr M Burns of counsel appeared on behalf of the AIMPE.

Section 418 application

[5] It is clear on the uncontested evidence that industrial action is happening, threatened, impending, probable and it is being organised. The question, however, is whether it is protected industrial action, which is exempted from the scope and application of s.418 of the Act.

[6] The question I need to determine, therefore, is whether it appears that the action is protected or not, and that depends on a consideration of the arguments advanced on behalf of Svitzer, which go to the notices issued in relation to the industrial action.  It appears that although there has been a fair amount of clarity provided through the evidence the precise circumstances that will lead to the exemption applying or not applying are not perfectly clear in all respects.

[7] Nevertheless, I think that the notices are sufficiently clear, on their face, to satisfy the requirements of the Act and that the notices are not defective.  They invoke the action that is proposed.  It is, in my view, clearly a stoppage, subject to exemptions, and the wording of the exemptions has been applied in the recent stoppage without difficulty. I would expect that although there might be some discussion and debate, the exemptions can be applied in a common sense manner in the future and I do not regard the notices, on their face, as failing the test for clarity.

[8] The second reason advanced, on behalf of Svitzer, for contending that the action is not protected, is that the type of action, which includes the exemptions, is not authorised by the protected action ballot results.  The protected action ballot authorised stoppages, it did not specifically authorise stoppages with any exemptions or these particular exemptions.  However, I consider that the action that is proposed is of the same nature as that authorised.  It is a stoppage.  It is of a general nature, subject to specific exemptions.  It is something less than what is authorised by the ballot but, nevertheless, in my view, it is authorised by the ballot results.

[9] For those reasons I consider that the action appears to be protected industrial action. There is no other reason for believing that it is not. Therefore it is not appropriate and I do not have jurisdiction to issue an order. If the action is protected, the order would have no effect in any event. The application, under s.418 of the Act is dismissed.

Section 424 application

[10] There has been considerable evidence about the significance of the operations of Svitzer's tugs, in various ports, including the dependency that ports have on tugs to assist in dealing with emergencies and any difficulties with ships operating in the port and the important role they play.  There is also evidence of the events that occurred on Wednesday, 13 January 2016, in Melbourne, where an emergency did arise and because the engineers were immediately available, as they were at the vessels during a period of a stoppage, they were able to respond to that emergency in a way that I think everybody, the union, the company and certainly this Commission, regards to be in a commendable manner.

[11] The evidence also establishes that for captive vessels, it is the understanding that in order to properly give effect to the exemptions in the industrial action notice, engineers will remain in a similar manner and be available to respond in the same manner.  That evidence has been clarified by the union in relation to captive tugs. In my view, it is an important consideration as to the threat that this industrial action causes to personal safety or health or the welfare of the population.

[12] In all of the circumstances I am not satisfied, at this stage, that the proposed industrial action would threaten to endanger the life, the personal safety or health or the welfare of the population and therefore the basis for making an order terminating a protected industrial action has not been made out.

[13] I am conscious that in a situation with potentially lengthier strikes and a number of diverse locations, circumstances may change. While coming to the view that I have at this stage I decline to make the order. However I reserve liberty for the parties to apply, in the event that there is a change in circumstance that might warrant the reconsideration of this matter by the Commission.  I will not, at this stage, dismiss the application.

VICE PRESIDENT

Appearances:

Mr Easton, M of counsel on behalf of Svitzer.

Mr McNally, B and Mr Burns, M of counsel on behalf of AIMPE.

Hearing details:

2016.

Melbourne – video link to Sydney.

January 15.

Final written submissions:

Svitzer on 15 January 2016.

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