Transdev Sydney Ferries Pty Limited T/A Sydney Ferries v Construction, Forestry, Maritime, Mining and Energy Union the Maritime Union of Australia Division Sydney Branch (105n-Msy)

[2020] FWC 2510

[2020] FWC 2510

FAIR WORK COMMISSION

DECISION

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

Transdev Sydney Ferries Pty Limited T/A Sydney Ferries
v
Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division – Sydney Branch (105N-MSY)
(C2020/3485)

DEPUTY PRESIDENT BULL SYDNEY, 22 MAY 2020

Alleged industrial action at Sydney Harbour City Ferries. No current or threatened industrial action. Undertakings provided that no future industrial occur. Application dismissed.

[1] This matter was heard before me on 13 May 2019. This is the published version of the decision in transcript on the evening of 13 May 2020, edited for style and clarity.    1

[2] Transdev Sydney Ferries Pty Limited T/A Sydney Ferries (the applicant) has made an application for a s.418 order pursuant to the Fair Work Act 2009 (the Act) to, in essence, stop industrial action from either occurring, or preventing it from occurring in the future. It is submitted that unlawful industrial action has been taken by its employees who are members of the Construction, Forestry, Maritime, Mining, and Energy Union – The Maritime Union of Australia Division (the Union) and was organised by the Union.

[3] The application is opposed by the Union who appeared in its own right, and on behalf of its members. The Union was represented by Ms Danalis National Legal Officer.Mr Ludeke a solicitor sought leave to appear for the applicant (which was not opposed) and was granted leave to appear pursuant to s.596(2)(a) of the Act.

[4] Section 418 of the Act states that if it appears to the Fair Work Commission (the Commission) that industrial action by one or more employees, that is not or would not be protected industrial action, is happening or is threatened, impending or probable or is being organised, the Commission must make an order that the industrial action is stopped, not occur or not be organised.

[5] Further, s.420(1) of the Act requires as far as practical that the Commission determine an application for an order under s.418 of the Act within two days after the application is made. This application was filed on the evening of Tuesday 12 May 2020 and, therefore, as the decision has now issued, the requirement to determine the matter within two days has been met.

[6] In pursuing the application, the applicant relies upon one witness only and that is through the evidence of Mr Craig Rieck, the General Manager of Operations. Mr Rieck provided a witness statement which he attested to and that was marked as Exhibit A1. Mr Rieck was subject to cross-examination by the Union. In summary, Mr Rieck's evidence is that on Tuesday 12 May 2020, when he arrived at Circular Quay at around about 2:00pm, he received a phone call from a Mr Paul Garrett from the Union (Assistant Secretary of the Sydney Branch of the MUA) who advised him that employees would not be co-operating with the drug and alcohol testing that was about to occur.

[7] Mr Rieck advised that the reason the drug and alcohol testing was to occur was because an employee had been dismissed for failing a breath alcohol test on 28 April 2020, and it was proposed that employees would be randomly selected for blood and alcohol testing that afternoon, which indeed occurred. However, of the five general purpose hands that were directed to attend, none of them did, and only one master who was asked to attend did so.

[8] Mr Rieck then advised that he met that afternoon with officials of the Union, including Mr Garrett, where Mr Garrett asserted that the application of the drug and alcohol policy was in dispute and that the termination notice to the employee who had failed the drug and alcohol test had to be withdrawn, and that the employee had to be reinstated.

[9] Mr Rieck advised that, that evening the Manly ferry which was scheduled to leave Circular Quay at 6:00pm did not depart, nor did any other Manly services operate for the remainder of that day due to, in his evidence, industrial action taken by employees, and organised by the Union.

[10] The following morning, that is this morning, Wednesday 13 May 2020, Mr Rieck advised that the Manly services resumed as scheduled. However, the applicant commenced its investigation into the refusal by employees the previous afternoon to undertake blood and alcohol testing and one employee was issued with a suspension, and Mr Rieck advised that the employee would be shortly issued with a show cause letter. Mr Rieck advised that the same course of action would be taken with other employees who did not attend the blood and alcohol testing as requested.

[11] Mr Rieck advised that after the employee who had failed to attend the blood and alcohol testing was suspended the Union-covered employees ceased work on all ferry services at approximately 12:05pm this afternoon. Mr Rieck in his oral evidence updated his witness statement by advising the Commission that as of 4:05pm this afternoon all employees had made themselves available for work and it was understood that there was no industrial action happening as of 4:05pm this afternoon.

[12] As submitted by the applicant the employees and the applicant are bound by an in-term industrial, or enterprise agreement which has a nominal expiry date of 1 September 2022 2 and, pursuant to s.417 of the Act no industrial action is able to be taken during an in-term enterprise agreement. Mr Ludeke noted in the applicant’s submissions that the enterprise agreement also contains a dispute resolution clause which he submits has not been complied with.

[13] In respect to opposing the application the Union did not provide any witness evidence and relied upon submissions made by Ms Danalis. The Union makes no admissions as to whether industrial action has or hasn't occurred, but the Commission notes in any event it is for the applicant to prosecute its case.

[14] It is clear to the Commission that there are two disputes that remain unresolved; the dismissal of an employee and the requirement for employees to undertake drug and alcohol testing.

[15] The applicant has advised that its position will not change from what it has already advised the Union and, on that basis, it is concerned that there is potential for further industrial action to occur because the disputes remain unresolved and it will not be changing its position.

[16] Mr Ludeke points out that the actions taken by the Union were particularly brazen in respect of the second course of industrial action on the afternoon of Wednesday 13 May 2020. While the matter was listed before the Commission for a hearing, industrial action recommenced at 12:05pm this afternoon. Mr Ludeke points out the fact that this pattern of behaviour indicates it is quite probable that further industrial action will occur on the basis that the dispute remains unresolved. In any event, the Act at s.418(1) only requires the Commission to be satisfied that it ‘appears’ that industrial action may be probable for an order to issue.

[17] Having heard the evidence of Mr Rieck I am satisfied that unlawful industrial action has occurred. There was no evidence produced to the contrary and there were no submissions made that unlawful industrial action did not occur. However, I am satisfied that industrial action is not currently happening, which requires me to then look at s.418(1)(b) of the Act, as to whether unlawful industrial action is threatened, impending or probable.

[18] Mr Ludeke has not pointed, nor has Mr Rieck pointed, to any evidence that there has been a threat of further industrial action. Mr Ludeke on behalf of the applicant relies upon s.418(1)(b) of the Act which refers to whether it appears to the Commission that it might be probable that industrial action will occur. As I have stated earlier, the submissions are based on the fact there are two outstanding industrial disputes that, according to the employer at least, are not going to be resolved in the favour of the Union's position.

[19] I am satisfied having heard the evidence from Mr Rieck that the Union has been involved in organising the industrial action that has now ceased, whether that occurred on Tuesday evening or this afternoon. I also accept the submission made by Mr Ludeke that such action causes major disruption to the applicant's operations.

[20] In determining this matter, I need to consider whether it appears to me that industrial action is probable. During the course of this hearing the Union has provided an undertaking in respect to the concern raised by Mr Ludeke. The undertaking is in the following terms.

“1. Without any admissions the respondent agrees not to organise industrial action in relation to the disputes notified on 12 May 2020, being the disputes relating to the application of the drug and alcohol policy, including the proposed stand down of employees and the dismissal of a Gaius Taylor; and

2. Without any admissions the respondent agrees to instruct its members not to engage in industrial action in relation to the disputes notified on 12 May 2020, being the disputes relating to the application of the drug and alcohol policy including the proposed stand down of employees and the dismissal of Mr Gaius Taylor.”

[21] Despite the undertakings proffered by the Union the applicant maintains its application and submits that the wording of the undertakings are carefully crafted to allow other disputes to arise and unlawful industrial action to possibly occur, which would not be in breach of the undertakings proffered by the union.

[22] Having heard the submissions of Ms Danalis which are recorded in the transcript, I am satisfied that the undertakings are offered on a bona fide basis.

[23] Without such undertakings, however, I would have concluded that it appeared to the Commission that unlawful industrial action was probable.

[24] However, with the undertakings that have now been provided by the Union, I am not in a position to form the requisite view that it appears that unlawful industrial action is probable in the future. While I have already accepted that industrial action has occurred, it is currently not happening and there has been no evidence produced that it is being threatened.

[25] The only possibility that I can conclude is that it is probable and, as I have stated, based on the undertakings provided by the Union I am satisfied that they are given in good faith and that the probability of industrial action occurring in the future is not likely.

[26] On that basis the application will be dismissed.

[27] I note that the undertakings are part of the Commission’s records, so too is the transcript; if the undertakings are not complied with, no doubt the applicant will rely upon any failure of the Union not to adhere to the undertakings in any future application that may be made.

[28] Finally, it is put by the applicant that it is appropriate the dispute settling procedure in the Agreement, which is a mandatory requirement of all enterprise agreements, should be followed. Why that has not been followed has not been satisfactorily explained to the Commission.

[29] On the basis of what I have stated, the application will be dismissed, and the decision will issue formally once the transcript is produced and attached to the decision will be the undertaking that has been provided by the Union. 3

DEPUTY PRESIDENT

Appearances:

Mr Ludeke solicitor, on behalf of the Applicant

Ms Danalis on behalf of the CFMMEU

Hearing details:

Sydney
2020
13 May

Printed by authority of the Commonwealth Government Printer

<PR719345>

Annexure A

IN THE FAIR WORK COMMISSION

AT SYDNEY

C2020/3485

Between:

Transdev Sydney Ferries Pty Ltd

Applicant

And

Construction, Forestry, Maritime, Mining and Energy Union

Respondent

13 May 2020

Undertaking by the Construction, Forestry, Maritime, Mining and Energy Union

1. Without any admissions, the Respondent agrees not to organise industrial action in relation to the disputes notified on 12 May 2020, being the disputes relating to the application of the drug and alcohol policy, including the stand down and proposed stand down of employees, and the dismissal of Gaius Taylor; and

2. Without any admissions, the Respondent agrees to instruct its members not to engage in industrial action in relation to the disputes notified on 12 May 2020, being the disputes relating to the application of the drug and alcohol policy, including the stand down and proposed stand down of employees, and the dismissal of Gaius Taylor.

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 2   Harbour City Ferries Maritime Agreement 2018 [AE502182]

 3   Undertaking is attached to this decision at Annexure A