DECISION

Fair Work Act 2009
s.418—Industrial action

Toll Transport Pty Ltd T/A Toll Shipping
v
Maritime Union of Australia, The
(C2017/2405)

Alleged industrial action at Toll Transport’s Port Melbourne site.

Introduction

[1] Toll Transport Pty Ltd T/A Toll Shipping (“Toll Shipping”) has made application for orders under s.418 of the Fair Work Act 2009 (Cth) (“the Act”) against the Maritime Union of Australia (“MUA”) and its employees employed at its premises at Webb Dock Drive in Port Melbourne. It seeks the orders in respect of unprotected industrial action involving stoppages of work and reductions in productivity that it submits have occurred on several occasions.

[2] The application was heard on Monday, 8 May 2017. The Commission indicated at the conclusion of those proceedings that it was not in a position to determine the matter at that time. It accordingly made an interim order, dated 8 May 2017, 1 as required by s.420 of the Act. This decision now determines the application.

[3] Mr A. Denton of Counsel appeared on behalf of Toll Shipping and Mr K. Farouque from Maurice Blackburn appeared on behalf of the MUA. Both were given leave to appear under s.596(2)(a) of the Act as the matter involved a degree of complexity and their involvement would enable it to be dealt with more efficiently.

The Issue to be Determined

[4] Section 418(1) of the Act provides that the Commission must make an order that industrial action stop if it appears that the action is happening, or is threatened, impending or probable, or is being organised by one or more employees, and is not, or would not be, protected industrial action. The so-called “stop period” is to be for the period specified in the order.

[5] The Commission must determine any such application for an order, as far as practicable, within 2 days after the application is made. If it is unable to do so it must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised, as the case may be, unless it is satisfied it would be contrary to the public interest to do so.

The Submissions and Evidence

[6] Toll Shipping submits that the application relates to industrial action that is threatened, impending or probable and/or is being organised in the form of a ban or limitation on the performance of work by the employees and the failure or refusal by the employees to attend for work.

[7] It continues to indicate that the employees are engaged under the terms and conditions contained in the Toll Shipping Melbourne Stevedoring Enterprise Agreement 2015 (“the Agreement”)  2 and are employed as stevedores at the Webb Dock. The MUA are also covered by the Agreement, which has a nominal expiry date of 19 November 2019. Toll Shipping submits that the application has been made in response to the following unprotected industrial action that has taken place at the site during the previous 3 weeks:

• 21 April 2017 – Late on 20 April an MUA employee representative at the site, Mr Paul Smart, indicated that industrial action would take place at the site on the next day. The employees subsequently stopped work from 7 a.m. until 7.40 a.m. on 21 April.



• 22 April 2017 – Mr Smart met with Mr Adam Holland, the National Stevedore and Terminals Manager at Toll Shipping, to raise concerns about not being able to access its allocation system. He continued to indicate that, as a consequence, industrial action would occur on the following day. On Saturday, 22 April, the employees again stopped work from 7.20 a.m. until 7.55 a.m. A further stoppage occurred from around 12 noon until 1.15 on that day.



• 26 – 28 April 2017 – On 24 April Mr Smart was stood down from work on full pay. Toll Shipping submits that productivity on the dock subsequently fell below normal levels from Wednesday, 24 April until Friday, 26 April.



• 5 May 2017 – Mr Holland was contacted by two MUA officials, Mr Robert Patchett, a Branch official from Victoria, and Mr Will Tracy, the Deputy National Secretary, who advised that they intended to meet with the employees at the site on 5 May. This request was refused by Mr Holland because it was not made in accordance with the right of entry provisions in the Act. At 7.05 a.m. on 5 May the two officials arrived at the car park at the Webb Dock site. They then met in the car park with the employees who were working on that shift at the time. At 7.25 a.m. the employees left the site. A series of further discussions then took place between Mr Holland and the MUA officials and the employees subsequently returned to work at 11 a.m. However, the MUA also advised that a range of outstanding issues still needed to be resolved and, on 7 May, Mr Patchett forwarded an email detailing a list of 10 issues the Union wanted addressed in those discussions.



• 6 May 2017 – Mr Patchett again attended at the site and spoke to several employees.

[8] Toll Shipping submits that these circumstances make clear that a stoppage of work or a refusal to attend at work is “threatened, impending or probable” and/or is being organised, and constitutes industrial action as defined by s.19(1)(b) and/or (c) of the Act. It continues to submit that the recent unprotected industrial action that has been taken, and the outstanding issues raised by the MUA, indicate in combination that further industrial action is likely. The evidence also makes clear that the action is being organised by the MUA.

[9] Toll Shipping also relies on the evidence of Mr Adam Holland in support of the application. His witness statement attached file notes of his discussions with Mr Smart on 21 April and 22 April and with other delegates on 26 April. It also contains file notes of his discussions with the MUA officials, and a spreadsheet mapping the daily productivity of the site for the month of April 2017.

[10] Mr Holland’s witness statement also made reference to CCTV footage of what occurred in the car park at the site on Friday, 5 May. This was shown during the course of the proceedings. His statement also attached an email sent by Mr Patchett to Mr Holland, dated 7 May, setting out a list of 10 issues “for discussion as requested.” 3 The following matters are listed in the email:

• “ Paul Smart back to Work as Normal
• 8 Week Forward Roster Adhered too


• Permanents to do Afternoon Shift < Voluntary Basis >


• 2 Foreman rostered on Afternoon Shift


• Weekly Massage on Site


• Chiropractor every second Thursday on Site.


• Entry For MUA Officials


• Letter of Agreement New Site/S as agreed in EA Agreement < Tony Stewart >


• Safety Issues Outstanding from Fatality Denied by Management John Simic Darren Aszodi < Confirmed in meeting John Simic Darren Aszodi, National MUA Safety Officer Mick Cross Bob Patchett MUA official


• Micro Fibre Summer Shirts” 4

[11] The MUA submits in response that there is no on-going industrial action occurring at the site at this time. At this point it has instead simply given notice of issues requiring further discussion and, in the absence of any unprotected industrial action now occurring at the site, the evidence about any past action that might have occurred is not sufficient to support a conclusion that unprotected industrial action is now “threatened, impending or probable.”

[12] It continues to submit that the refusal of the right of entry request was also not sufficient to support this conclusion.

[13] However, the MUA also submits that if the Commission is of the view that an order should be made then there is no basis on which to make an order directed to all of the officeholders of the MUA, as this would extend the orders to officeholders who cannot be said to have been involved in any alleged industrial action at the site. It also submits that it is not necessary to make specific reference in any order to the Union delegates at the site, as they are included, in any case, in the reference to employees at the site.

[14] It also relies on the decision in Esso Australia Pty Ltd v the Australian Workers’ Union (Esso) 5 in support of the view that any order made should be directed only at the particular industrial action that has been described, being in this case “a stoppage,” and that the evidence relating to an alleged decline in productivity at the site over a period of time has not been made out. It is also necessary in its submission for there to be a connection between the terms of the order made and the industrial action which is the subject of the application. It also submits that any order should not extend beyond a period of one month, given the evidence about the limited period in which industrial action has occurred at the site in the recent past. The MUA did not seek to cross-examine Mr Holland in regard to the evidence he provided in support of the application.

[15] Toll Shipping also provided a draft order in conjunction with the application. It submits that a period of 3 months is appropriate for the term of the order, given the number of issues raised by the MUA. It also made reference to the Esso decision, and submits that it makes clear that any order should not extend beyond the industrial action that has been identified. In its submission this is what the order it proposes intends. It also submits that given all that has occurred at the site over the past 3 weeks the Commission is entitled to conclude that something is “happening” or is “going to happen” at the site, given the number of unresolved issues that remain outstanding in circumstances where the Union and the employees have chosen in the recent past to not pursue the resolution of these issues through the dispute resolution mechanism available in the Agreement that covers the parties.

[16] As indicated, the application was dealt with in a hearing on 8 May 2017. However, the Commission subsequently received correspondence dated 19 May 2017 from the MUA’s representative, which indicated in part:

“4. We note that the last allegation of industrial action made in the application was a stoppage alleged to have occurred on Friday 5 May 2017 (see application, pars [1] – [ v]).

5. The substantive basis upon which the application was put by Toll, was that the alleged industrial action arose from the prospective cessation of employment of a Mr Paul Smart, an employee representative.

6. We are instructed that on about 9 May 2017 Mr Smart entered into a separation agreement with Toll. Mr Smart is no longer employed by Toll.

7. We note that Toll is not made further allegations that industrial action has occurred after 5 May 2017.

8. We submit that these matters are relevant considerations in assessing whether or not industrial action is presently threatened, impending or probable. Furthermore, we submit that these considerations support the position advanced on behalf of the MUA at the hearing, namely that FWC cannot be satisfied that industrial action is threatening, impending or probable.” 6

[17] It also advised that a copy of this letter had been provided to the Applicant’s representative, who subsequently advised the Commission it intended to provide a response. It was contained in a letter dated 26 May 2017, which indicated that a “raft of issues” 7 had been raised by the MUA, and the issues were not simply confined to those involving Mr Smart. It also suggested that the fact of Mr Smart no longer being employed by Toll Shipping did not necessarily mean that those issues had been resolved to the satisfaction of the MUA. It also suggested that it was not surprising that there had been no further industrial action at the site since 5 May, given the interim order had been in place since 8 May and compliance with that order should be expected, instead of being something that provided support to the submissions made by the MUA.

Consideration

[18] In determining the present application it is clear at the outset 8 that before any order is made there must first be a finding that unprotected industrial action “is happening; or is threatened, impending or probable; or is being organised.”9 I am satisfied based evidence of Mr Holland, in particular, that unprotected industrial action has occurred in the recent past at the Webb Dock site. The relevant dates are 21 & 22 April and 5 May 2017. This action related, in part, to issues concerning Mr Smart, who is apparently now no longer employed by Toll Shipping. However, Mr Holland’s evidence also indicates that it was made clear by Mr Patchett that it also involved a number of additional matters, and these were then detailed by Mr Patchett in the email sent to Mr Holland on 7 May. The content of that email has already been set out in this decision and is not restated now.

[19] However, it is also evident that unprotected industrial action is not happening at the site at this time, and the last occasion on which it did occur was in early May, although there has, of course, been an interim injunction in place since 8 May. However, it is necessary now to consider whether unprotected industrial action is “threatened, impending or probable; or is being organised.” 10

[20] The evidence of Mr Holland makes clear that the employees at the site have in the recent past been prepared to take unprotected industrial action, instead of progressing any outstanding issues through the Dispute Resolution Procedure in clause 19 of the Agreement that covers the parties. This has involved stoppages of work, with on one occasion the stoppage involving employees leaving the work site for a period of just under 4 hours. I have also had particular regard to the list of outstanding issues provided in the email by Mr Patchett to Mr Holland on 7 May. It makes reference to the issues concerning Mr Smart. However, it also extends to include issues about rostering, safety, and other employee conditions and entitlements. It also includes an issue about right of entry to the site for MUA officials.

[21] I am satisfied in all the circumstances that it is reasonable to conclude that protected industrial action is at least “impending or probable” based on what has occurred at the site in the recent past, and the nature of the outstanding and on-going issues that have been highlighted by the MUA. I am also satisfied that officials of the MUA have been involved in organising this action, given their attendance at the site, and their communication about those issues, one of which involves entry to the site by MUA officials.

[22] Having made this finding I now turn to consider the terms of the order that is to be made. In this context the submissions provided on behalf of the MUA made reference to the decision in Esso. It is acknowledged in response that the decision makes clear that any order should not simply be expressed in a broad terms requiring that protected industrial action not occur, but should instead be directed specifically at the industrial action (existing or potential) that has been identified. It is also accepted that an order directed at Union representatives should not go beyond persons who have had, or could have, any rational connection with the unprotected industrial action that has been identified. It is also necessary to have a rational connection, as far as possible, between the period of time specified in the order and the purpose for which it is made.

[23] I have therefore decided that the order will be directed only at stoppages of work. I have had regard to the evidence of Mr Holland about one occasion in April when there was a period of time when what might be described as covert action took place involving a decline in normal productivity levels. However, it is also understood that this related to action initiated particularly by Mr Smart, who is no longer employed by Toll Shipping. Based on this, and the nature of the available evidence, I am not satisfied that the order should extend to make reference to this alleged unprotected industrial action.

[24] I am also satisfied that it is appropriate to extend the terms of the order to include the MUA officials who have been involved, based on the evidence of Mr Holland, in organising the action involving the stoppages of work.

[25] In regard to the duration of the order Toll Shipping sought a period of 3 months, while the MUA submits, if an order is to be made, it should be confined to a minimum period of one month. The interim order has already been in place for more than 3 weeks. In that time there have apparently been developments in regard to the circumstances involving Mr Smart. Presumably there have also been discussions about some of the other issues. I am concerned to ensure that the duration of any order is confined in a way that reflects the circumstances involved. Given the period of time that has elapsed while the interim order has been in place I am satisfied it is appropriate for the order to now operate for a further period of one month. This should allow sufficient time for further discussions to take place about the issues identified by the MUA on behalf of the employees. An order that reflects the terms of this decision is also now issued.

COMMISSIONER

Appearances:

A Denton of Counsel for the Applicant.

K Farouque for the Respondent.

Hearing details:

2017.

Melbourne:

May 8.

 1   PR592735.

 2   AE422710.

 3   Exhibit T1 at attachment AH-15.

 4   Ibid.

 5   [2016] FCAFC 72.

 6   Letter to Fair Work Commission from Respondent’s representative, dated 19 May 2017 at [4]-[8].

 7   Letter to Fair Work Commission from Applicant’s representative, dated 26 May 2017 at [2].

 8   Maritime Union of Australia v Harbour City Ferries Pty Ltd [2014] FWCFB 3858.

 9   Fair Work Act 2009 (Cth) s 418(1).

 10   Ibid.

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