Teekay Shipping (Australia) Pty Ltd v The Maritime Union of Australia
[2011] FWA 6223
•12 SEPTEMBER 2011
[2011] FWA 6223 |
|
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
The Maritime Union of Australia
(C2011/5626)
COMMISSIONER CLOGHAN | PERTH, 12 SEPTEMBER 2011 |
Alleged industrial action at Teekay Shipping (Australia) Pty Ltd: Site - Port Hedland, Western Australia.
[1] On 28 August 2011, Teekay Shipping (Australia) Pty Ltd (“the Employer”) made application to Fair Work Australia (“FWA”) for an order to stop alleged unprotected industrial action pursuant to s.418 of the Fair Work Act 2009 (“the FW Act”).
[2] The order was sought against:
- The Maritime Union of Australia (“MUA”); and
- Mr Phil Lawson; and
- Employees of the Employer who are members of the MUA and covered by the Teekay Shipping (Australia) Pty Ltd/MUA Port Hedland Towage Operations General Purpose Hands Fair Work Agreement (“GPH Agreement”) and who are or may be required to perform work on the PB Fitzroy (“the Employees”).
[3] The alleged unprotected industrial action related to a refusal by the Employees, since 1:42pm on 27 August 2011, to work on a tug boat, the PB Fitzroy, until there is airborne testing and results obtained to determine where chrysotile asbestos is present on the vessel.
[4] Following a hearing on 29 August 2011, I issued an Order on the same day that the industrial action stop, not occur and not be organised. These are the reasons for issuing the order known as the “Teekay Shipping (Australia) PB Fitzroy Order, August 2011”.
[5] At the hearing, the Employer was represented by Mr J Blackburn of Counsel. The MUA was represented by Mr L Edmonds of Counsel.
[6] Mr Craig Bramley, the Employer’s Manager of Towage Operations and Mr Simon Harrop, OHS Team Leader, Coffey Environment Pty Ltd, gave evidence on behalf of the Applicant. For reasons of travel scheduling, no evidence was provided by Mr Tracey, Assistant Secretary, MUA.
RELEVANT BACKGROUND
[7] The Employer carries out marine towage operations in the maritime industry.
[8] The Employer operates a chartered towage vessel called the PB Fitzroy which, at the time of the dispute, was berthed in Port Hedland.
[9] The PB Fitzroy vessel is chartered to the Employer from PB Towage (Australia) Pty Ltd. The charter ceases at midnight on 31 August 2011.
[10] The PB Fitzroy is operated by a crew of three persons - a master, an engineer and a general purpose hand. The master is eligible to be a member of the Australian Maritime Officers’ Union (AMOU). Engineers are eligible to be members of the Australian Institute of Marine and Power Engineers (AIMPE). General Purpose Hands are eligible to be members of the MUA.
[11] The Employer employs a number of General Purpose Hands to perform work on the PB Fitzroy and other towage vessels it operates out of Port Hedland.
[12] The employment of General Purpose Hands is regulated, in part, by the GPH Agreement.
[13] The GPH Agreement was approved by FWA on 22 September 2010 and nominally expires on 31 March 2014. Clause 3 states that the GPH Agreement is between the Employer and the MUA. In accordance with s.183(1) of the FW Act, the MUA gave written notice that it sought to be covered by the GPH Agreement.
[14] On 23 August 2011, the Employer informed its employees, the MUA and Worksafe that samples taken by PB Towage on the PB Fitzroy had revealed, in encapsulated material, traces of asbestos.
[15] On 24 August 2011, the Employer issued a memorandum to the relevant employees; the relevant parts are as follows:
“No asbestos has been found in insulation or lagging and the find is limited to gasket jointing material which does not present any known risk to personnel in its current state.
Both Teekay and PB Towage have notified the three maritime unions of this finding.
As an interim measure please observe the following precautions:
- no pipe work is to be worked on
- any jointing material onboard is to be treated as contaminated, secured, bagged and labelled for subsequent removal.” 1
[16] Normal towage operations on the PB Fitzroy continued on 24 and 25 August 2011.
[17] Between 6:30am and 7:00am on 26 August 2011, Mr Lawson, a General Purpose Hand and MUA delegate, informed the Employer that, “on advice from Fremantle”, the employees would not work on the PB Fitzroy that day 2. Later in the day, the Employer was also advised by the next rostered employee that he would not be working the next shift as Mr Lawson had informed him that the “MUA had deemed the vessel unsafe”3.
[18] Three more matters are relevant to the period 25/26 August 2011.
[19] Firstly, WorkSafe issued an Improvement Notice on 25 August 2011 following its investigation and discussions with PB Towage. PB Towage confirmed that it “has been established that articles (gaskets) containing Schedule 5.6 substance (i.e. chrysotile asbestos) is being used at the workplace. The PB Fitzroy on which the articles are located and used was commissioned in 2008.” 4
[20] The Employer is required to remedy the above contravention Occupational Safety and Health Regulations 1986 by 5pm on 4 November 2011.
[21] Second, notwithstanding it was not the owner of the vessel, the Employer determined and organised that there should be further sample testing of the PB Fitzroy.
[22] Third, the Employer resolved to withdraw the PB Fitzroy from towage operations until sample testing had been completed on the following day - 27 August 2011 5.
[23] On 27 August 2011, Mr Simon Harrop, Occupational Health and Safety-Hazardous Materials for Coffey Environment Pty Ltd (specialists in environmental social and safety performance) inspected and took samples from the PB Fitzroy.
[24] Mr Harrop undertook what was described as a “type 2 or a code compliance survey” 6. The survey essentially assesses all the reasonably accessible elements and takes samples of those materials for analysis. As part of the survey, a risk assessment is made of the material in their surroundings.
[25] Mr Harrop was not instructed as to where he should inspect or take samples from. Mr Harrop took 29 samples of material from various locations for analysis. 7
[26] At the conclusion of Mr Harrop’s inspection, he attended and addressed a meeting of available crew members. Mr Harrop advised those present at the meeting what he had been engaged to undertake, what he had done and his observations and received questions from the attendees 8.
[27] To the best of his recollection, Mr Harrop informed those present that he expected the gasket material to contain asbestos. However, the gaskets were contained within sealed flanges. Mr Harrop considered such an environment posed a low risk during the normal operations of the vessel. 9
[28] Mr Harrop confirmed that at the meeting the question of airborne asbestos was raised. The question was asked in the context of a rumour. Mr Harrop responded that he was unaware of any rumour and was not aware of any occurrence of asbestos material becoming airborne. Mr Harrop also explained the location and nature of the material which he suspected contained asbestos.
[29] In view of the fact that the asbestos was contained within a matrix of material in the gasket, which in turn was within sealed flanges, there was “negligible risk of respirable fibres being released [becoming airborne] during normal operation.” 10
[30] Following the meeting, Mr Harrop had a telephone discussion with Mr Tracey, Assistant Secretary, MUA. Mr Harrop advised Mr Tracey of his findings. Mr Tracey raised the issue of airborne fibre monitoring. Mr Harrop reiterated to Mr Tracey his view that the asbestos was a “low risk, bound within a tight matrix of material and obviously sealed within flanges and [that Mr Harrop] didn’t see that air monitoring would be required.” 11
[31] Mr Harrop confirmed that he was the author of an Asbestos Management Plan for the PB Fitzroy provided to the owners of the PB Fitzroy, PB Towage (Australia) Pty Ltd 12.
[32] At the time of the hearing on 29 August 2011, the results of Mr Harrop’s sample testing on 25 August 2011 were not available.
[33] Having considered Mr Harrop’s report on his investigation, the Employer determined that the PB Fitzroy could return to normal towage operations. The Employer advised the employees who had attended the meeting accordingly.
[34] After the meeting at 1:42pm on 27 August 2011, Mr Bramley was informed by Mr Lawson, the MUA delegate, that the Union’s position was that the “tug was out of commission” 13 or “the MUA will not use the tug”14.
[35] As a consequence of being informed of the MUA’s position, Mr Bramley telephoned Mr Tracey as suggested by Mr Lawson. Mr Bramley gave evidence that both he and Mr Harrop spoke to Mr Tracey; Mr Harrop advised of the technical perspective to the situation and Mr Bramley sought an understanding as to why the employees who were members of the MUA would not carry out their duties on the PB Fitzroy.
[36] Mr Harrop explained why airborne sampling was not necessary.
[37] The telephone discussion concluded, in the evidence of Mr Bramley, with Mr Tracey stating, “the MUA will not allow the tug to go out until the [airborne] sampling is done”. 15
[38] Mr Bramley advised that following telephone conversations with both representatives of the AMOU and AIMPE, these unions did not oppose the PB Fitzroy returning to normal towage operations.
[39] The Employer alleges that the employees subject to the GPH Agreement and rostered to work on the PB Fitzroy have engaged in unprotected industrial action since, at least, 1:42pm on 27 August 2011 and that the unprotected industrial action was being organised by the MUA. At the time of the hearing, the alleged unprotected industrial action was continuing.
RELEVANT LEGISLATIVE FRAMEWORK
[40] The FW Act provides at the relevant parts as follows.
- Section 19 - Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
● Section 417 - Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a) an enterprise agreement is approved by FWA until its nominal expiry date has passed; or
(b) a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) The persons are:
(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
Injunctions and other orders
(3) If a person contravenes subsection (1), the Federal Court or Federal Magistrates Court may do either or both of the following:
(a) grant an injunction under this subsection;
(b) make any other order under subsection 545(1);
that the court considers necessary to stop, or remedy the effects of, the contravention.
(4) The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
(5) Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.
● Section 418 - FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, FWA does not have to specify the particular industrial action.
(4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.
CONSIDERATION AND CONCLUSION
[41] Mr Edmonds, for the MUA, put the position that no employees are engaging in unprotected industrial action because:
“the action that is being taken doesn't meet the definition of industrial action under the Act and particularly under section 19 of the Act which provides for an exclusion where the action being taken is, "Action by an employee, if there is a reasonable concern of the employee about an imminent risk to their health or safety and that employee did not unreasonably fail to comply with the direction of his or her employer to perform other available work whether at the same or another workplace." So we say that for a start it is quite clear that the employees concerned are entitled to refuse to work on board the PB Fitzroy which we say is an unsafe workplace.” 16
[42] Having put the MUA’s position, the question to be determined in this application is whether that position is consistent with the provision in the FW Act that the employees’ action was based on a reasonable concern about an “imminent risk to his or her health or safety” 17.
[43] If it is found that action by the employees is not based on a reasonable concerns about an imminent risk to their health or safety, it is necessary to consider whether that action falls within the definition of industrial action within the FW Act and subsequently whether the industrial action is protected or not.
[44] In the first instance, the Applicant or Employer in these proceedings has to establish that the action taken by the employees is industrial action. I find, on Mr Bramley’s evidence, that the employees covered by the GPH Agreement, and rostered to work on the PB Fitzroy, by refusing to attend and work on the towage vessel from, at least, 1:42pm on 27 August 2011, is consistent with the kind of action described in s.19(1)(c) of the FW Act as falling within the meaning of industrial action.
[45] Having determined that the action is prima facie industrial action, the next question to be determined, consistent with the MUA’s position, is whether that kind of action by the employees is excluded from the meaning of industrial action because the employees had a reasonable concern about an imminent risk to their health or safety.
[46] The Australian Concise Oxford Dictionary defines “reasonable” as “having sound judgment, sensible, moderate, within limits of reason...ready to listen to reason...not greatly less or more than might be expected...tolerable, fair”. In summary, reasonable is not self defining but objective within the context of the action.
[47] Before looking at the action of the employees, by way of preliminaries, it is, in my view, useful to summarise the response of the Employer when advised by the owner of PB Fitzroy that gaskets onboard the vessel contained asbestos. First, it advised the employees, their unions and WorkSafe. Secondly, it took preventative precautions to ensure the risk to employees did not increase from its current state. Thirdly, it acknowledged the WorkSafe Improvement Notice. Fourthly, it relieved the vessel of its normal operations. Fifthly, it instigated a separate occupational safety and health investigation on the vessel. Finally, it provided to employees an opportunity to hear and question the investigator, Mr Harrop. Having received the report and opinion of Mr Harrop, the Employer came to the view that the employees were not at imminent risk to their health and safety and directed them to return to work. Objectively, while the MUA argued that more should have been done, the Employer’s response was reasonable and expeditious.
[48] Notwithstanding the Employer’s response, the FW Act requires that I consider the concerns of the employees relating to whether they were reasonable in perceiving an imminent risk to their health and safety.
[49] The Tribunal, in considering whether the employees’ concerns were reasonable, did not receive any evidence directly from the relevant employees. This is an essential problem for the employees and the MUA in persuading the Tribunal that their actions should be excluded from the definition of industrial action on the grounds of concerns over an imminent risk to their health and safety.
[50] In such circumstances, it may be fair and reasonable, on the lack of best evidence from the employees, to take the matter no further. However, in view of the fact that Mr Tracey was unable to give evidence, it is useful to comment on whether there was an imminent risk to health and safety of the employees.
[51] Mr Harrop has an impressive list of qualifications, training and experience. Mr Harrop’s assessment concerning the risk posed by the gaskets and his opinion concerning airborne monitoring was not disturbed in cross examination.
[52] Mr Harrop’s cross examination took the general direction that, if asbestos is not present, then there is no risk. However, if it is present, even in a matrix of other material, then it poses a risk. While Mr Harrop conceded that if an employee was working on the flanges, either cutting or grinding, and was not aware that the gaskets contained asbestos, there was the potential for fibre release. However, without knowing what the work was, the material, and the location, it was difficult for him to determine whether respirable exposure, if any, was above the acceptable level.
[53] While I did not receive evidence from Mr Tracey regarding the need for airborne monitoring, or indeed his qualifications or expertise in this area, Mr Edmonds’ cross examinations appeared to suggest the position of the MUA is that the Employer must have the results of the samples and an asbestos materials register on the PB Fitzroy as a preventative tool.
[54] While asbestos is not entirely a fact-sensitive issue, the Tribunal did not have any direct evidence from the relevant employees; this clearly weighs against the MUA’s contentions. However, I have tested evidence from the Employer that the gaskets which contained asbestos, amongst other material, did not pose an imminent risk to the employees’ health and safety. Finally, I have evidence from the Employer that it has put in place precautions to minimise the risk of asbestos exposure to its employees.
[55] Accordingly, I am unable to agree with the MUA’s contentions that the actions of the Employees rostered to work on the PB Fitzroy are actions which would exclude them from the definition of industrial action on health and safety grounds.
[56] Against this consideration, it is necessary to consider whether it was protected industrial action.
[57] The nominal expiry date of the GPH Agreement is 31 March 2014. Consequently, pursuant to the provisions of s.417(1)( and (2) of the FW Act, the industrial action is being carried out before the nominal expiry date of the GPH Agreement, and is therefore unprotected.
[58] In conclusion, at the end of the hearing, I was satisfied, for the reasons above, that unprotected industrial action had been organised, was happening and probably would continue. Accordingly, Order PR514009 was issued on 29 August 2011.
COMMISSIONER
Appearances:
Mr J Blackburn, Counsel with Mr D Scanlan of Blake Dawson for the Applicant.
Mr L Edmonds, of W.G. McNally Jones Staff for the Respondent.
Hearing details:
2011:
Perth,
29 August
1 Exhibit A2
2 PN 78
3 PN 96
4 Exhibit A1
5 PN 94
6 PN 283
7 PN 284 and 285
8 PN 300
9 PN 301
10 PN 306
11 PN 321
12 Exhibit A6
13 PN 115
14 PN 117
15 PN 123
16 PN 32
17 Section 19(2)(c)(i) of the FW Act
Printed by authority of the Commonwealth Government Printer
<Price code C, PR514471>
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