FWC 7898 (Cambridge C, 17 November 2015)
Permission to appeal refused  FWCFB 8057 (Watson VP, Gooley DP, Gostencnik DP, 4 December 2015), [(2015) 254 IR 143].
Employees of ASP Ship Management, who were members of the MUA, were refusing to perform work as directed to enable the vessel MV Portland to sail from Portland, Victoria, to Singapore where the ship was to be sold. ASP made an application for an order that the industrial action stop which was granted at first instance. On appeal, the MUA advanced that the action taken was not industrial action on the basis that the direction of the employer was not a reasonable or lawful direction. Further, the union asserted that the one-way voyage of the MV Portland from Australia to Singapore was outside the scope of employment and therefore did not constitute industrial action.
The Commission found that uncertainties in relation to the details of the voyage (such as the arrangements for repatriation to Australia) did not render the direction of the employer unreasonable. The MUA’s argument that the direction fell outside the scope of employment was also rejected.
The Commission determined that the action organised by the union and taken its members satisfied the definition of industrial action under the Act and that such action was not protected industrial action.
The employees had legitimate concerns about particular arrangements applicable to the performance of work which should have been addressed with the employer directly in the first instance and then by making an application to the Commission if the concerns could not be resolved. The existence of such concerns could not validate the taking of unprotected industrial action.