Sydney International Container Terminals Pty Limited & Brisbane Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 208

[2019] FWC 208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.443(5) - Application for specification of a notice period for a protected action ballot order

Sydney International Container Terminals Pty Limited & Brisbane Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Limited
v
Construction, Forestry, Maritime, Mining and Energy Union
(B2019/10)

COMMISSIONER CAMBRIDGE SYDNEY, 16 JANUARY 2019

Protected action ballot of employees of Sydney International Container Terminals Pty Limited & Brisbane Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Limited.

[1] On 8 January 2019, Sydney International Container Terminals Pty Limited & Brisbane Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Limited (Hutchison Ports) made an application which sought to extend the notice period regarding the taking of industrial action taken pursuant to a Protected Action Ballot Order (PABO). The application sought specification of a notice period regarding a PABO as provided for in subsection 443 (5) of the Fair Work Act 2009 (the Act).

[2] The application for specification of a notice period of a PABO was made in respect of a PABO that was originally made by Sams DP on 30 November 2018 [PR702786], and as varied by further Order of the Fair Work Commission (the Commission) made on 12 December 2018 [PR703051] (the 2018 Hutchison PABO). The 2018 Hutchison PABO was made upon application of The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (the MUA).

[3] The application seeks to have the written period of notice for the taking of protected industrial action extended in accordance with subsection 443(5) of the Act which is in the following terms:

“(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

[4] The application was listed for Hearing before the Commission in Sydney today, 16 January 2019, at which time the following appearances were recorded:

Mr P Brown, solicitor from Baker & McKenzie solicitors,appeared for Hutchison Ports;

Mr A Slevin, barristerappeared for the MUA.

[5] The Commission granted permission for the Parties to be represented by lawyers or paid agents. The Commission was satisfied that the requirements of s. 596 of the Act were met because certain complexity was identified and the assistance of lawyers or paid agents would enable the matter to be dealt with more efficiently having regard for the complexity of the matter.

[6] The application for specification of a notice period for the 2018 Hutchison PABO sought to have the written period of notice for the taking of protected industrial action extended from three (3) working days to five (5) working days. The application was supported with a Statement of Rajan Samidurai dated 8 January 2019 (the Statement). Mr Samidurai also provided oral evidence as a witness in support of the Statement. In summary, the evidence provided by Mr Samidurai included information about various operational processes and requirements of the Hutchison Ports sites located at Port Botany, New South Wales and Port of Brisbane, Queensland (the Terminals). The evidence from Mr Samidurai asserted that because of identified operational requirements at the Terminals, any industrial action taken pursuant to the 2018 Hutchison PABO with less than five working days’ notice would create a circumstance where “the community impact is likely to be significant.” 1

[7] Therefore, it was asserted on behalf of Hutchison Ports that the evidence established that exceptional circumstances existed because of certain potential impacts of any industrial action taken with less than five working days’ notice. As exceptional circumstances were said to have been established, the Commission was urged to specify a notice period for the 2018 Hutchison PABO so as to include a term that specified that the written notice referred to in subsection 414 (2) (a) of the Act be five (5) working days.

[8] The MUA opposed the application for specification of a notice period for the 2018 Hutchison PABO. The MUA firstly advanced an asserted jurisdictional impediment to the application. The MUA submitted that the Commission did not have power to entertain the application because, if granted, it represented an outcome that would vary the terms of a PABO, and s. 447 of the Act was the only specific power provided in the Act for any variation to a PABO. Consequently, according to the submissions made by the MUA, as an employer that was a respondent to a PABO, Hutchison Ports did not have capacity to make an application under s. 447, or any other application that would result in a variation to a PABO, and therefore the application in this instance had no proper jurisdictional foundation.

[9] The MUA also introduced evidence by way of a witness statement of Warren Smith the Divisional Assistant National Secretary of the MUA. Mr Smith also provided oral evidence as a witness. In summary, the evidence provided by Mr Smith asserted that the norm for the notification time to take protected industrial action in the Stevedoring Industry was not more than three days. The MUA submitted that exceptional circumstances had not been established and there was no basis to extend the written period of notice for the taking of protected industrial action from three working days to five working days.

[10] Although the jurisdictional impediment to the application that was raised by the MUA would be likely to be upheld, as a consequence of the determination made regarding the substantive merits of the matters in contest, it has become unnecessary to provide any concluded determination of that aspect of the matter. Further, in view of the unfortunate history of the proceedings which led to making of the 2018 Hutchison PABO, whereby, at an early stage of those proceedings, Hutchison Ports raised the issue of an extension to the notice period for the taking of industrial action, it would be unfair to Hutchison Ports if the Commission was not to have permitted the subsequent agitation of that issue.

[11] Having considered the evidence and the competing submissions, I have not been persuaded that a case has been made to establish the existence of exceptional circumstances as required by subsection 443 (5) of the Act. The potential for some unspecified community impact to be caused in the event that subcontracting for container movements may not be able to be arranged with three days’ notice, irrespective of the particular type of industrial action for which notice was given, does not establish exceptional circumstances.

[12] The MUA is to be commended for providing undertakings during today’s proceedings which, inter alia, would allow for the protection of perishable cargos. Notwithstanding the undertakings provided by the MUA, and as undesirable as it may be for Hutchison Ports and its customers if any cargo was to be delayed or to perish, such delay or loss does not, on the evidence before me, introduce broader community concerns so as to enliven the notion of exceptional circumstances. Industrial action, by its very nature, will almost always inflict some cost or damage upon a respondent employer and, potentially, its clients or customers. Similarly, those employees engaging in the protected industrial action will usually suffer direct financial loss. Industrial battles will naturally have casualties, but the legislative regime facilitates such warfare.

[13] The evidence in this instance has not established exceptional circumstances that would justify a period of written notice for the taking of industrial action to be extended. There has been no proper basis established for any variation to be made to the written notice period stipulated by subsection 414 (2) (a) of the Act.

[14] Consequently, as the Commission has not been satisfied that there are exceptional circumstances justifying any extension to the written notice referred to in subsection 414 (2) (a) of the Act, the application for specification of a notice period for the 2018 Hutchison PABO is refused.

COMMISSIONER

Appearances:

Mr P Brown, solicitor fromBaker & McKenzie appeared for Hutchison Ports.

Mr A Slevin of Counsel with Mr A Jacka appearedfor The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union.

Hearing details:

2019.

Sydney:

January, 16

Printed by authority of the Commonwealth Government Printer

<PR703832>

 1   Exhibit 1 @ paragraph 33.