Teekay Shipping (Australia) Pty Ltd v Australian Institute of Marine and Power Engineers, The

[2013] FWC 1736

[2013] FWC 1736

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Teekay Shipping (Australia) Pty Ltd
v
Australian Institute of Marine and Power Engineers, The
(C2013/3607)

VICE PRESIDENT WATSON SYDNEY, 3 APRIL 2013

Application for order regarding industrial action - whether threat to leave engine room if other employees enter to perform duties amounts to industrial action - action falls within statutory definition - order made - Fair Work Act 2009 - ss. 19, 418.

[1] This decision, edited from a decision on transcript on 19 March 2013, concerns an application by Teekay Shipping (Australia) Pty Ltd (Teekay) for an order under section 418 of the Fair Work Act 2009 (the Act) that industrial action by employees stop or not occur. At the hearing of this matter on 19 March, Mr B Rauf, of counsel, appeared for Teekay, and Mr N Keats, of counsel, appeared for The Australian Institute of Marine and Power Engineers (AIMPE).

[2] There is evidence before me as to a series of events on the relevant vessel, the M.V. Mariloula, that discloses a significant amount of conflict between the engineering employees on board the vessel and the integrated ratings, especially in relation to activities in the engine room of the vessel.

[3] The vessel is due to berth at Port Hedland in the next days, load with iron ore and then transport that iron ore to Port Kembla, a voyage which is expected to take approximately one week. It appears clear to me on the evidence that the conflict between the two groups has led to the chief engineer on the vessel, Mr Hobson, issuing a communication to Teekay, with an accompanying standing order, that no integrated rating is to attend the engine room space as of 17 March 2013 until arrival at Port Kembla. The activities of the vessel would normally require the integrated ratings on the vessel to perform work in relation to the engine and would normally require the integrated ratings to attend the engine room to perform those functions.

[4] The normal activities are in compliance with the shipboard operations manual regarding the engine room activities. Teekay contends that the evidence establishes that the engineers on board have threatened industrial action by way of representations to the company that if an integrated rating attends the engine room, the engineers will absent themselves from the engine room and will not perform duties while an integrated rating is in attendance. It is contended that that activity, and that indication, amount to a threat of industrial action, and that industrial action, in all of the circumstances, is threatened, impending or probable.

[5] Counsel for the AIMPE submits that the circumstances do not amount to industrial action being threatened, impending or probable. On the evidence before me and in consideration of the various communications between the parties, and in particular the evidence of Mr Cleary, I am of the view that the representations made by the engineering employees on board the vessel constitute a threat of industrial action, and in the light of the normal operating procedures, that industrial action is also impending and probable. I consider that the representations as to leaving the engine room fall within the definition of industrial action because duties are required to be performed by the engineers in the engine room, and absenting themselves from the engine room would be a ban, or a limitation, or would amount to a practice in relation to work which is different to that which is customarily performed.

[6] I consider that the action clearly falls within the definition of industrial action and I do not consider that any of the exclusions for industrial action in section 19(2) of the Act apply in the circumstances of this case. Section 418 of the Act relevantly provides that if the Commission forms the view that industrial action is threatened, impending or probable, it must make an order that the industrial action stop, not occur or not be organised, as the case may be, for a relevant period specified in the order. I am therefore bound, given the findings I have made, to issue an order that the industrial action not occur. The order issued in this matter is PR534989.

VICE PRESIDENT WATSON

Appearances:

B. Rauf for Teekay Shipping (Australia) Pty Ltd

N. Keats and H. Christiansen for the Australian Institute of Marine and Power Engineers

Hearing details:

2013.

Sydney.

March, 19.

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<Price code A, PR535004>