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

[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.

Printed by authority of the Commonwealth Government Printer

In the case of Teekay Shipping (Australia) Pty Ltd v Australian Institute of Marine and Power Engineers, the Federal Court was asked to consider whether certain actions taken by the employees constituted industrial action as defined in the Fair Work Act 2009. The employer, Teekay Shipping, sought an order preventing the employees from engaging in activities that could be interpreted as industrial action, specifically if they left the engine room when other employees entered to perform their duties. The union, the Australian Institute of Marine and Power Engineers, defended the employees' actions, arguing they did not constitute industrial action under the Act.

The primary legal issue before the Court was whether the employees' decision to leave the engine room if other employees entered to perform their duties constituted industrial action under the Fair Work Act. The Court had to determine if this action fell within the statutory definition of industrial action, which includes "action in pursuit of an employee’s industrial issue." The Court also had to consider whether such action was protected under the Act or if it warranted an order to prevent it.

The Court found that the employees' actions did constitute industrial action as they were in pursuit of an industrial issue and were protected by the Fair Work Act. However, the Court also determined that the action could have serious safety implications, leading to the issuance of an order under section 418 of the Act. The order was made to ensure that the employees' actions did not compromise safety while still protecting their right to engage in protected industrial action. This decision balanced the need for safety with the protection of employees' rights under the Fair Work Act.

The final orders of the Court were to prevent the employees from leaving the engine room if other employees entered to perform their duties in a manner that could compromise safety. The Court recognised the importance of safety in the workplace while upholding the employees' right to engage in protected industrial action. The decision provided clarity on the scope of industrial action and the conditions under which such actions could be regulated to ensure safety without infringing on employees' rights.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established