Total Marine Services Pty Ltd v Maritime Union of Australia
[2011] FWA 6674
•3 OCTOBER 2011
[2011] FWA 6674 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Total Marine Services Pty Ltd
v
Maritime Union of Australia & Ors
(C2011/756)
COMMISSIONER CLOGHAN | PERTH, 3 OCTOBER 2011 |
Application for an order than industrial action by employees or employers stop etc..
[1] On 20 September 2011, Total Marine Services 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 its officers, employees, agents and delegates;
- the employees of Total Marine Services Pty Ltd who are members (or eligible to be members) of the MUA and who are engaged in work on the vessel Highland Navigator then located at or near the Mermaid Supply Base in Dampier, Western Australia;
- Mr Chris Cain, WA Branch Secretary, MUA;
- Mr Will Tracey, Assistant WA Branch Secretary, MUA; and
- Mr Doug Heath, WA Branch Organiser, MUA.
[3] Put shortly, the alleged unprotected industrial action relates to Integrated Ratings (“the Employees”) of the Highland Navigator refusing, as directed by the Master of the vessel, to prepare the vessel so that it could sail from its berth at Mermaid Supply Base in Dampier. The Integrated Ratings are, or are eligible to be, members of the MUA.
[4] Following a hearing on 21 September 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 “Total Marine Services Pty Ltd Highland Navigator Industrial Action Order 2011 (No. 1).”
[5] At the hearing, the Employer was represented by Mr N Ellery of Counsel. The MUA was represented by Mr A Neal, National Legal Officer, MUA.
[6] Mr P Wilcock, Master, Highland Navigator and Mr A Crowther, Project Supervisor gave evidence for the Employer. No evidence was provided by the MUA.
RELEVANT BACKGROUND FACTS
[7] The Employer provides crew for various vessels in the offshore oil and gas industry.
[8] The Employer employs a number of Integrated Ratings on the vessel Highland Navigator. The employment of the Integrated Ratings on the Highland Navigator is regulated, in part, by the Total Marine Services Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2011 (“the Agreement”).
[9] The Agreement was approved by FWA on 6 September 2010 and nominally expires on 31 July 2013.
RELEVANT EVIDENCE
[10] The Highland Navigator was due to sail from the Mermaid Supply Base at 4:00pm on 20 September 2011.
[11] At approximately 3:30pm on 20 September 2011, three Integrated Ratings advised the Master of the Highland Navigator that they would not let the ship sail from its berth at 4:00pm.
[12] The Integrated Ratings advised the Master that he would be informed of their reasons for not sailing by email 1. No explanation was provided at the time for not sailing2.
[13] At 3:48pm on 20 September 2011, the Master of the Highland Navigator received an email from one of the Integrated Ratings who refused to sail the vessel. The email was a forwarded copy of an email sent to Mr Cain, Mr Tracey and Mr Heath at 6:40am on 20 September 2011 3. The relevant parts of the email are as follows:
“MUA crew on the Highland Navigator refuse to leave the Mermaid Supply Base for the following reasons:
1. ...
2. ...
3. ...
4. ...
5. Systematic breaches of the Department of Immigration visa requirements in respect to the following matter (sic):
(a) workers engaged on the vessel in breach of there (sic) visa specifications;
(b) Allseas have engaged crane operators outside of the classification list of the Department of Immigration;
(c) Allseas are underpaying expat crane operators in breach of their visa obligations;
(d) Allseas are underpaying expat 457 R.O.V. workers in breach of their visa obligations;
(e) Allseas are underpaying the Chief Mate and the First Engineer in breach of their visa obligations.” 4
[14] The consequences of this action are that the vessel remained tied to its berth, engines were shut off and the vessel stood down 5.
[15] At 8:45am on 21 September 2011, each of the Integrated Ratings on the Highland Navigator were asked whether they had any safety concerns sailing the vessel from Mermaid Supply Base to anchorage to continue preparations for its offshore survey operation; the employees replied in the negative 6.
[16] The above matters in paragraphs [11] and [15] are recorded in the Official Log of the Highland Navigator.
[17] The evidence in paragraphs [11] to [16] was uncontested.
[18] In cross examination, Captain Wilcock gave evidence that on entering Australian waters, Customs officials checked the entry status of the crew on board the vessel 7. Captain Wilcock conceded that some visas needed clarification. The visas that needed clarification were extended to 2/3 October 20118.
[19] Captain Wilcock acknowledged, in his evidence, that his knowledge of visas was limited to being a visa holder himself and from a discussion with a Customs officer who came on board the vessel 9.
[20] While Captain Wilcock believed that all visas were “in order”, I found his evidence limited to his immediate experience and one discussion with a Customs officer.
[21] Following a request from an Integrated Ratings to Captain Wilcock, Mr Crowther telephoned Mr Cain, WA Branch Secretary MUA. In evidence which was not contested, Mr Crowther stated that he had spoken to Mr Cain briefly on two occasions. On the first occasion, Mr Cain advised him that “the guys won’t sail the vessel” 10. On the second occasion, Mr Crowther sought to have the vessel sail from its berth to anchorage within two miles of the wharf until the matter was resolved. Mr Cain responded again in the negative.
RELEVANT LEGISLATIVE FRAMEWORK
[22] 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
[23] Mr Neal, for the MUA, put the position that the Union did not “take issue with much of what’s been said but I guess the major point that I do take issue with is the reason for the members indicating that they’re not willing to work and move the vessel” 11.
[24] For the MUA, there are “systematic breaches of the Department of Immigration visa requirements” 12, “...there are now workers on this vessel that are potentially illegal immigrants”13.
[25] The MUA has contacted the Department of Immigration to investigate their assertion. Consequently, “...our members are extremely concerns (sic) about moving the vessel until such time as representatives of the Department of Immigration have visited the vessel and conducted the necessary interviews, etcetera, to determine the veracity of the matters that have been alleged...” 14.
[26] In these circumstances, Mr Neal put the argument, “there was no industrial favour (sic) and it was in relation to the issue of the appropriateness of the visas that are being worked under - over the action taken” 15.
[27] Mr Ellery, for the Employer, responded that the action being taken by the MUA “clearly and squarely” 16 falls within the definition of industrial action in s.19 of the FW Act. Further, there is no exception for action motivated by immigration concerns and that there has been no suggestion that it has been based upon imminent risk to health and safety17. Finally, the action is being taken with the knowledge and authority of MUA officials.
[28] The Employer puts the proposition that concerns regarding immigration matters should “take its course through the proper channels through the department, not through industrial action” 18.
[29] Expressed in its simplest terms, the uncontested oral evidence, written material and submissions arrive at the finding that the Employees have refused to perform their work to enable the Highland Navigator to sail from its berth at the Mermaid Supply Base at Dampier.
[30] The conduct of the Employees, as Mr Ellery states, falls “clearly and squarely” within the definition of s.19 of the FW Act.
[31] The actions of the Employees in not preparing the vessel to enable it to sail is a ban, limitation or restriction on the performance of work. The consequence of this ban, limitation or restriction by the Employees resulted in the Highland Navigator not leaving its berth as it would normally have done.
[32] While it was not submitted by Mr Neal, the Employer went so far as to determine whether the Employees’ conduct was based on an imminent risk to their health or safety; again the uncontested evidence was that the Employees were not engaging in the action because of an imminent risk to their health and safety. Consequently, the “exclusionary” provision in subparagraph 19(2)(c)(i) of the FW Act is not applicable.
[33] What was the reason for the Employees’ actions?
[34] According to Mr Neal, the Employees have concerns regarding the status of immigration visas held by some members of the crew on the Highland Navigator. However, no evidence was presented by the MUA concerning the Employees’ concerns.
[35] Irrespective of the lack of evidence, the scheme of the FW Act only enables protected industrial action (subject to the exclusion provisions in subsection 19(2) of the FW Act) in pursuit of a proposed enterprise agreement. Further, the protected industrial action can only take place if the pre-conditions of the FW Act have been complied with.
[36] While the Employees may consider that there are good social or community reasons to take the action which they did, their conduct falls within the definition of industrial action in the FW Act -- action which is unprotected -- and being unprotected, apart from this application to stop their conduct, exposes the Employees to the possibility of being sued.
[37] Having heard the oral evidence, examined the two documents submitted in evidence and assessed the parties’ submissions I was satisfied that the industrial action by the Employees had occurred and was continuing at the time of the hearing. I was also satisfied that the industrial action was not protected industrial action. Finally, I was satisfied, through evidence and submissions, that Total Marine Services Pty Ltd was affected by the unprotected industrial action. Accordingly, I made Order PR514890 on 21 September 2011.
COMMISSIONER
Appearances:
Mr N Ellery of Counsel, for Total Marine Services Pty Ltd
Mr A Neal of the Maritime Union of Australia.
Hearing details:
2011:
Perth,
21 September.
1 PN 80
2 PN 82
3 Exhibit A1
4 Exhibit A1
5 PN 105
6 PN 106
7 PN 131
8 PN 132
9 PN 147
10 PN 175
11 PN 30
12 PN 30
13 PN 31
14 PN 34
15 PN 191
16 PN 193
17 PN 195
18 PN 196
Printed by authority of the Commonwealth Government Printer
<Price code C, PR515089>
0
0
0