1
Fair Work Act 2009
s.604 - Appeal of decisions
Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Limited
(C2013/5276)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH
COMMISSIONER BULL SYDNEY, 11 OCTOBER 2013
Appeal against decision [2013] FWC 4391 and Order PR538567 of Vice President Watson at
Sydney on 4 July 2013 in matter number C2013/4565.
[1] On 30 May 2013, Patrick Stevedores Holdings Pty Limited (Patrick) lodged an
application for an order under s.418(1) of the Fair Work Act 2009 (the Act). The matter was
listed for an urgent hearing on 31 May 2013 before Vice President Watson. At that hearing, it
appears to have been common ground that the application could not properly be determined
within 2 days after the application (which s.420(1) requires to be done as far as is practicable),
so his Honour made an interim order in accordance with s.420(2). Patrick’s application was
heard in full on 19 and 26 June 2013. On 4 July 2013 his Honour issued a decision1
(Decision) in which he determined to make an order under s.418. An order was separately
issued that day2 (Order) in the following terms:
“1. TITLE
This Order shall be known as the Patrick Stevedores Holdings Pty Limited – Port
Botany – Industrial Action Order No.1 of 2013. (the Order).
2. APPLICATION
This Order applies to work and employment regulated by the Patrick Terminals
Enterprise Agreement 2012 (the Agreement).
3. PARTIES BOUND
The parties bound by this Order are:
3.1 Patrick Stevedores Holdings Pty Limited (Patrick);
1 [2013] FWC 4391
2 PR538567
[2013] FWCFB 7736
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 7736
2
3.2 The Maritime Union of Australia (the MUA);
3.3 officials, delegates, employees and agents of the MUA (the MUA
Representatives); and
3.4 employees of Patrick who are members of the MUA and who are employed at its
terminal at Port Botany in the State of New South Wales and whose work and
employment are regulated by the Agreement (the Port Botany Employees).
The MUA and MUA Representatives must comply with clauses 4.1 to 4.4 of this
Order.
The Port Botany Employees must comply with clause 4.5 of this Order.
4. INDUSTRIAL ACTION MUST STOP, NOT OCCUR AND NOT BE
ORGANISED
4.1 The MUA and the MUA Representatives must:
(a) not engage in any unprotected industrial action at Port Botany;
(b) immediately stop organising any unprotected industrial action involving any of the
Port Botany Employees; and
(c) not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any
Port Botany Employee to engage in unprotected industrial action.
4.2 The MUA must prepare the following written notice which must be signed by an
authorised official of that organisation in the following terms (Written Notice):
“The Fair Work Commission has issued a section 418 order to stop or prevent
industrial action.
The order is called the Patrick Stevedores Holdings Pty Limited – Port Botany
– Industrial Action Order No.1 of 2013.
The order requires that there be no unprotected industrial action at Port
Botany (including but not limited to bans, limitations and restrictions on the
performance of work) by:
● the MUA;
● officers, employees, agents and delegates of the MUA (MUA
Representatives); or
● employees of Patrick Stevedores Holdings Pty Limited (Patrick) at its
terminal at Port Botany in the State of New South Wales (Port Botany)
who are members or eligible to be members of the MUA and are
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employed pursuant to the Patrick Terminals Enterprise Agreement
2012 (Port Botany Employees).
The order also prevents the MUA and MUA Representatives from aiding,
abetting, counselling, procuring, authorising, directing, organising or
encouraging any unprotected industrial action by Port Botany Employees.
The order applies to:
● the MUA and MUA Representatives; and
● Port Botany Employees.
Accordingly, any direction, advice or authorisation by the MUA to members of
the MUA employed by Patrick to engage in industrial action at Port Botany
which is not protected is withdrawn and such action must stop or not occur.
Those members should perform work in the manner in which it is usually
performed, without any form of ban, limitation or restriction on the
performance of work and without any threat to ban, limit or restrict the
performance of work.
4.3 The Secretary of the MUA (or his or her authorised delegate) must provide a copy
of the Written Notice to Darren Perry of Herbert Smith Freehills on facsimile number
(02) 9322 4000 by 5.00pm, 5 July 2013.
4.4 The MUA must take all steps necessary and available under its rules to:
(a) advise the MUA Representatives and each of the Port Botany Employees
who are members of the MUA of the terms of this Order by giving the Written
Notice to each of the MUA Representatives and Port Botany Employees who
are members of the MUA ; and
(b) ensure that its delegates and those Port Botany Employees who are
members of the MUA comply with this Order.
4.5 Each Port Botany Employee must:
(a) immediately stop engaging in, or threatening to engage in, unprotected
industrial action;
(b) while this Order is in force, be available for work, and perform work, as
required by Patrick; and
(c) not continue, recommence or organise any unprotected industrial action
during the period of operation of this Order.
4.6 For the purposes of this Order, the expression “unprotected industrial action”
means:
[2013] FWCFB 7736
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(a) a failure or refusal by Port Botany Employees to attend for work or a failure
or refusal to perform any work at all by Port Botany Employees who attend for
work, including a failure or refusal to perform reasonable overtime;
(b) a ban, limitation or restriction on the performance of work by a Port Botany
Employee, or on the acceptance of or offering for work by a Port Botany
Employee;
(c) the performance of work by a Port Botany Employee in a manner different
from that in which it is customarily performed, or the adoption of a practice in
relation to work by a Port Botany Employee, the result of which is a restriction
or limitation on, or a delay in, the performance of work; and/or
(d) the aiding, abetting, counselling, procuring, authorising, directing,
organising or encouraging of any person to whom this Order applies to engage
in the conduct referred to in paragraphs (a) to (c) above.
4.7 For the purposes of this Order, industrial action does not include:
(a) protected industrial action within the meaning of s.408 of the Fair Work
Act 2009 ;
(b) action or conduct by Port Botany Employees that is authorised or agreed to
by or on behalf of Patrick; or
(c) action by a Port Botany Employee if:
(i) the action was based on a reasonable concern by 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.
5. SERVICE OF ORDER
It will be sufficient service of this Order upon the parties bound by this Order if:
5.1 a copy is sent by facsimile transmission to:
National Secretary
The Maritime Union of Australia
(02) 9261 3481
5.2 a copy of this order is placed on the notice boards usually used for the purpose
of communicating with Port Botany Employees.
6. TERM AND DATE OF EFFECT
[2013] FWCFB 7736
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This Order shall come into effect at 5.00pm on 4 July 2013 and shall replace the
Patrick Stevedores Holdings Pty Limited – Port Botany – Industrial Action Interim
Order No.1 of 2013 with immediate effect. This Order shall remain in force for a
period of six months.”
[2] In this appeal, for which permission to appeal is required, the MUA has challenged the
making of the Order on the basis that the jurisdictional prerequisites for the making of the
Order under s.418(1) were not satisfied. Section 418(1) provides:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC 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;
the FWC 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.”
[3] The MUA’s case on appeal challenged the making of the Order in three ways:
(1) Vice President Watson’s finding that industrial action was happening,
threatened, impending or probable was not available on the evidence and/or
mistook the evidence, with the result that there was no power to make an order
stopping or preventing industrial action.
(2) The finding that the MUA had organised industrial action was based on an
inference of “involvement”, which was insufficient to support the finding. In
any event, the evidence did not support the finding, with the result that there
was no power to make an order against the MUA.
(3) In the alternative, even if an order was required to be made on the evidence,
certain terms of the Order went beyond what was jurisdictionally permissible
under s.418(1).
[4] We will deal with each of these submissions in turn, but first it is necessary to consider
a submission made by the MUA concerning the proper approach to be taken by us on appeal
in relation to the findings of fact made by Vice President Watson.
Proper approach in an appeal against a s.418 order
[5] The MUA submitted that the question of whether any of the prerequisites in s.418(1)
for the making of an order have been made out on the evidence is one of jurisdictional fact
and, therefore, on appeal, the Full Bench must be concerned with whether the right conclusion
as to the existence or otherwise of the jurisdictional fact was reached, not simply with whether
the challenged finding was reasonably open. It cited the Full Bench decision in Ian McKewin
[2013] FWCFB 7736
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v Lend Lease Project Management & Construction (Australia) Pty Ltd3 (McKewin) in support
of this submission.
[6] We do not accept this submission. It fails to take into account the following distinction
succinctly identified by the Federal Court (Logan J) in Secretary, Department of Education,
Employment & Workplace Relations v Holmes4:
“It is to be remembered that there is a very definite distinction in law between a
“jurisdictional fact” grounded in the holding of an opinion or state of satisfaction as to
whether a given state of affairs exists and one grounded in whether that state of affairs
truly exists: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA
21; (1999) 197 CLR 611, at 651, [130] per Gummow J.”
[7] Section 418(1) requires the Commission to make an order of the specified type if it
“appears to the FWC” that industrial action that is not protected industrial action is
happening, or is threatened, impending or probable, or is being organised. That is, under the
subsection the relevant jurisdictional fact is the Commission member’s perception of the
matters specified in the subsection, which in substance involves the formation of an opinion
or the reaching of a state of satisfaction. We consider therefore that jurisdictional fact required
by s.418(1) to ground the making of an order falls in the first of the two categories identified
by Logan J.
[8] McKewin was concerned with a provision (s.420(2)) in which there was no express
language indicating that the relevant jurisdictional prerequisite was constituted by the
Commission member’s opinion or satisfaction as to the identified matter. That led the Full
Bench to prefer the view (without reaching a concluded view5) that the provision was
concerned with “the existence or otherwise of the jurisdictional fact” (that is, the second
category identified by Logan J), with the result that on appeal the Full Bench had to determine
whether the conclusion as to that matter was correct, not merely whether it was reasonably
open.6 However the Full Bench also stated that if s.420(2) was alternatively interpreted as
requiring the Commission member’s opinion or satisfaction as to the identified matter,
notwithstanding the absence of express language to that effect, a different approach on appeal
would apply:
“[30] On the alternate possible characterisation of s.420(2) as requiring the formation
of an opinion or the reaching of a state of satisfaction as to the Commission’s capacity
to determine the application within the two day time period, it would be necessary for
an appellant to demonstrate error of the House v The King type in order for a Full
Bench to overturn a member’s finding at first instance about this matter.”
[9] In stating its preferred view as to the characterisation of the jurisdictional prerequisite
in s.420(2), the Full Bench in McKewin cited the Federal Court Full Court decision in Pawel v
Australian Industrial Relations Commission7. That the approach to be taken by a Full Bench
of the Commission in an appeal would vary depending upon whether the decision under
3 [2013] FWCFB 2568 at [29]
4 [2008] FCA 105 at [16]
5 See [31]
6 At [29]
7 [1999] FCA 1660, (1999) 97 IR 392
[2013] FWCFB 7736
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appeal was jurisdictionally based upon the actual existence of a particular factual situation or
the Commission member’s opinion or satisfaction about that matter was recognised in the
judgment of the plurality8 in that case (underlining added):
“[14] Thus, although the Commission on an application under s 170CE(1)(a) must
determine whether the applicant was an employee in one of the categories specified in
s 170CB(1), the jurisdiction of the Commissioner under s 170CE(1)(a) is contingent on
the fact that the applicant was such an employee, and not on the Commission's opinion
or satisfaction in this regard. ... On an appeal to the Full Bench of the Commission
with respect to a determination of a Commissioner as to whether an applicant was an
employee in one of the categories specified in s 170CB(1), the Full Bench would be
concerned with whether the Commission reached the right conclusion as to whether an
applicant under s 170CE(1)(a) was such an employee. It would not be concerned
simply with whether the decision of the Commissioner was reasonably open to him or
her.”
[10] In the High Court decision in Coal and Allied Operations Pty Limited v Australian
Industrial Relations Commission9, the majority judgment characterised a decision-making
process in which no one consideration and no combination of considerations is necessarily
determinative of the result as discretionary in nature. 10 That was said to include a process in
which “the decision-maker is required to make a particular decision if he or she forms a
particular opinion or value judgment”.11 In an appeal by way of rehearing from a discretionary
decision so characterised, it was necessary for error in the decision-making process of the type
identified in House v The King12 to be demonstrated before appellate intervention could
occur.13
[11] Because the jurisdictional fact requirement in s.418(1) is founded upon the
Commission member’s perception about the specified matters, and involves to a significant
degree an evaluative assessment with a degree of subjectivity (including determining whether
particular types of conduct constitute industrial action as defined, and whether industrial
action is “threatened, impending or probable”), the decision-making process under the
subsection can be characterised as discretionary in the sense discussed in Coal and Allied.
Accordingly we consider that in this appeal we should not interfere with the findings
concerning the s.418(1) jurisdictional prerequisites in the Decision unless House v The King
error is identified.
[12] That is the approach that has usually been taken in this tribunal in appeals from
decisions made under provisions of the Act and its statutory predecessor which require the
making of an order upon the formation of an opinion or the reaching of a state of satisfaction
about a specified matter.14 We acknowledge there are some exceptions. In particular, in
8 At 395 [14] per Branson and Marshall JJ
9 (2000) 203 CLR 194
10 Per Gleeson CJ and Gaudron and Hayne JJ at [19]
11 Ibid
12 (1936) 55 CLR 499 at 505
13 Coal and Allied at [21]
14 AWU v Bluescope Steel (2008) 171 IR 115 at 120 [16]; John Holland Pty Ltd v AMWU [2010] FWAFB 526 at [46];
CFMEU v Woodside Burrup Pty Ltd [2010] FWAFB 6021 at [19].
[2013] FWCFB 7736
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CEPU v Australia Post15, the Full Bench majority, in relation to an appeal from an order
made under s.496 of the Workplace Relations Act 1996 (the earlier equivalent of s.418) took
the approach that the Full Bench’s role was to consider whether the decision-maker at first
instance had reached the right conclusion as to the existence or otherwise of the jurisdictional
fact as to whether industrial action was happening or threatened, impending or probable, or
being organised.16 In doing so, the majority stated that it was following the earlier Full Bench
decision in Australian Municipal Administrative Clerical and Services Union v Automated
Meter Reading Services17. However in that case, the matter of jurisdictional fact the subject of
the appeal did not involve the formation of an opinion or the reaching of a state of satisfaction
- that is, it fell in the second of Logan J’s two categories of jurisdictional fact, not the first.
We note that the minority judgment in CEPU v Australia Post placed emphasis on the
expression “If it appears” in s.496, and characterised the provision as requiring “in essence, a
value judgment based upon a reasonable interpretation of the facts”.18 That conforms more
closely to the view we have taken in respect of s.418(1).
Findings in Relation to Industrial Action
[13] The case that Patrick put to Vice President Watson was that the MUA’s members
employed at Patrick’s Port Botany terminal had engaged and were engaging in industrial
action in the context of a dispute concerning Patrick’s plan to automate much of its
operations, which was highly likely to lead to future redundancies. There was no dispute
about that contextual background, but the MUA denied that any industrial action had occurred
or was occurring.
[14] In the Decision, his Honour considered four instances of alleged industrial action that
were relied upon by Patrick in support of its case for a s.418 order. The first was an incident
on 10 May 2013 in which, unusually, approximately 10 employees who had previously
volunteered for overtime work on the weekend removed their nomination, with the result that
Patrick suffered a shortage of labour over the weekend. His Honour found that this was likely
to have been “in the nature of industrial action”, but that because it was not ongoing it was not
“happening”.19
[15] The second was an alleged productivity cap of 260 lifts per shift which, Patrick
contended, had been in place since mid May 2013. Its case in this respect was founded upon
an analysis of the records concerning lifts per shift which demonstrated that, compared to the
period 1 January to 16 May 2013, lifts per shift since 16 May 2013 had declined considerably,
and in particular that the instances in which any crane crew exceeded 260 lifts in a shift had
dramatically declined. Vice President Watson’s finding was as follows20:
“In all the circumstances I find that industrial action in the form of productivity
limitations is happening and, in the absence of any change to the automation program
and the MUA’s opposition to it, is likely to continue.”
15 PR974241
16 Per Watson SDP and Smith C at [9]-[11].
17 PR922053 at [42]-[43]
18 Per Blain DP at [48]-[49]
19 At [13]
20 At [21]
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[16] His Honour made it clear in his reasoning that the above conclusion was reached by
way of an inference drawn from all of the evidence, saying:
“[18] Counsel for Patrick submits that a clear inference from all the evidence is that
industrial action in the form of productivity restrictions is happening. I accept that such
an inference should be drawn from the evidence. It is clear that the dispute over
automation has been festering for some time. It has now reached the stage where some
implementation of automation is occurring. The MUA has consistently been critical of
the automation proposals. Its members have passed resolutions opposing the
implementation of the changes. The MUA concedes that employees are frustrated with
the fact that implementation of automation will not be stopped.
[19] The Port Botany site is characterised by a history of industrial action, including
go-slows and productivity caps that are intended to damage the performance of the
company while not significantly prejudicing the earnings of employees. The
workforce is estimated to be 100% unionized. The work crews and team leaders are
members of the MUA. There is little opportunity for constant supervision of work
practices by non-unionised supervisory employees. The workplace culture involves a
high level of employee solidarity and a high level of employee antipathy for
management.
[20] The MUA and its members are obviously aware of their inability to engage in
lawful industrial action. However they have the clear motivation to engage in
responsive action and to attempt to avoid culpability by disguising their conduct and
responsibility. There is no logical reason for the drop in productivity other than it
being the result of actions by employees to deliberately limit productivity and avoid
detection of their conduct. In particular, the alleged increased safety requirements do
not provide a logical explanation.”
[17] The third was an instance of unusually high absenteeism in the period from 10.00 pm
on 14 June to 10.00 pm on 16 June 2013. The evidence before his Honour was that in this
period there were 66 unplanned absences out of approximately 600 persons rostered to work,
compared to a normal average of 8-9 absences per 24 hour period.21 His Honour described
this as a “covert limitation on work” and found that it was related to Patrick’s introduction of
automation.22
[18] The fourth concerned the response to an occasion on 5 June 2013 when white powder
blew off a ship that was being unloaded. This led to the area being cordoned off, a specialist
contractor being called in to clean the area, and employees who had been in contact with the
white powder being taken to hospital as a precautionary measure. After a risk assessment was
carried out and controls put into place, employees went back to work. Subsequently however
the Assistant Secretary of the Sydney Branch of the MUA, Paul Garrett, directed that work
cease pending his attending the site, and work only resumed after he had held further
discussions and given his approval. Vice President Watson characterised what occurred as
21 At the hearing of the appeal, it was a fact agreed between the parties based upon information gathered after the hearing
before Watson VP that the actual number of unplanned absences was 65 from 6.00 am on 14 June to 6.00 am on 17 June. We
do not consider this corrected factual position vitiated the conclusions reached by his Honour about this matter.
22 At [23]
[2013] FWCFB 7736
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industrial action, and said that he believed that Mr Garrett’s conduct “may have been
deliberately designed to make use of the situation to cause damage to Patrick”.23
[19] In answer to the question “Is industrial action happening, threatened, pending or
probable”, Vice President Watson concluded as follows:
“[26] In consideration of all of the evidence in this matter, I find that covert
industrial action has occurred and continues to occur at the Port Botany terminal and it
is probable that it will continue unless effective orders are made and complied with.”
[20] The MUA submitted, and we accept, that only the findings concerning the second (the
productivity limitation) and third (absenteeism) instances of alleged industrial action were
capable of supporting his Honour’s ultimate conclusion in paragraph [26]. In relation to the
first instance (“unvolunteering” for overtime), his Honour did not make a definitive finding
that it constituted industrial action. In relation to the fourth instance (the white powder
episode), although industrial action was positively found to have occurred, his Honour was
unable definitively to connect this with the automation dispute, and we consider it likely that
it was a discrete episode.
[21] In relation to the productivity limitation, the conclusion drawn about this by his
Honour was based upon an inference drawn from the evidence as a whole. The basis upon
which inferences of this nature can be drawn in civil proceedings was described by Tadgell
JA (with whom Winneke P and Phillips JA agreed) in the Victorian Court of Appeal decision
in Transport Industries Insurance Co Ltd v Longmuir as follows24:
“In a civil case like this, where there is no direct evidence of a fact that a party bearing
the onus of proof seeks to prove, ‘it is not possible to attain entire satisfaction as to the
true state of affairs’: Girlock (Sales) Pty. Ltd. v Hurrell. In such a case, however, the
law does not require proof to the ‘entire satisfaction’ of the tribunal of fact. A
definition of the sufficiency of circumstantial evidence in a civil case to support proof
by inference from the directly proved facts was given by the High Court in the
unreported case of Bradshaw v McEwans Pty. Ltd. (27 April 1951) in a passage since
repeatedly adopted: e.g. Luxton v Vines; Holloway v McFeeters; Jones v Dunkel;
Girlock's case. The relevant passage in Bradshaw's case is this:
‘Of course as far as logical consistency goes many hypotheses may be put
which the evidence does not exclude positively. But this is a civil and not a
criminal case. We are concerned with probabilities, not with possibilities. The
difference between the criminal standard of proof in its application to
circumstantial evidence and the civil is that in the former the facts must be such
as to exclude reasonable hypotheses consistent with innocence, while in the
latter you need only circumstances raising a more probable inference in favour
of what is alleged. In questions of this sort, where direct proof is not available,
it is enough if the circumstances appearing in evidence give rise to a reasonable
and definite inference: they must do more than give rise to conflicting
inferences of equal degrees of probability so that the choice between them is
mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v
23 At [24]-[25]
24 [1997] 1 VR 125
[2013] FWCFB 7736
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Astley. But if circumstances are proved in which it is reasonable to find a
balance of probabilities in favour of the conclusion sought then, though the
conclusion may fall short of certainty, it is not to be regarded as a mere
conjecture or surmise ...’.”
[22] In its written appeal submissions, the MUA appeared initially to take issue with the
analysis by Vice President Watson which concluded that there had been a significant drop in
workforce productivity since shortly after the commencement of the automation dispute.
However, in its oral submissions, the MUA conceded (we think properly) that a reduction in
productivity had occurred. That being the case, the only question on appeal was whether his
Honour’s inference that the reduction in productivity was caused by industrial action was a
reasonable and definite one arising on the balance of probabilities from the evidence, or
whether the evidence gave rise to an at least equally probable inference that would explain the
occurrence of the reduction in productivity.
[23] In the proceedings below, the MUA’s witness Mr Freestone, an MUA delegate at Port
Botany, posited a number of alternate explanations for the productivity reduction, including
the incidence of fog and safety issues. Those alternative explanations were rejected in the
Decision.25 The MUA did not put anything to us in the appeal to persuade us that his Honour
was wrong in rejecting these alternatives or that they provided a probable or credible
explanation for what occurred. In its oral appeal submissions, the MUA emphasised that an
equally probable inference to that of industrial action was that employee frustration and
demoralisation caused by Patrick’s automation plans was responsible for the productivity
reduction. That submission was not squarely put to Vice President Watson, and in any event
the evidence did not support it. The highest the evidence went in favour of this submission
was that the employees were unhappy and frustrated as a result of Patrick’s automation plan.
That was and is no doubt the case. However, there was no evidence connecting that
unhappiness and frustration with the reduction in productivity in a way which did not involve
industrial action. Indeed, at least in connection with the absenteeism episode, Mr Freestone
denied outright any connection with employee frustration.26 Therefore we do not consider that
there was any reasonable or probable competing inference capable of being drawn from the
evidence.
[24] We consider, having regard to his Honour’s undisputed findings that there was a
dispute concerning automation in progress, that the Port Botany site was unionised to a very
high degree, and that there was a previous history of industrial action at the site including the
imposition of productivity limitations resulting in a previous s.418 order being issued against
employees and the MUA,27 that the inference that the productivity reduction was the result of
industrial action by the employees at Port Botany was a reasonable and definite one that was
fairly open on the evidence28, and that the balance of probabilities supported it.
[25] The MUA submitted that in drawing the inference that he did, Vice President Watson
erred by taking into account the past history of industrial action including the imposition of
productivity limitations. In support of this submission, it referred to the Full Bench decision in
Smith v Moore Paragon Australia Ltd, in which the Full Bench included in a summary of the
25 At [20]-[21]
26 Transcript 19 June 2013 PN 972.
27 PR521163
28 See Smith v Moore Paragon Australia Ltd PR915674 at [36]
[2013] FWCFB 7736
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legal principles applying to the drawing of inferences that “generally it is not lawful to take
into account moral tendencies of persons, their proneness to acts or omissions of a particular
description, their reputations and their associations”.29
[26] That proposition, as the Full Bench decision makes clear, is drawn from the judgment
of Dixon J in the High Court decision in Martin v Osborne.30 That case was concerned with
the rules concerning admissibility of “similar fact” or “propensity” evidence in criminal
proceedings. The applicability of those rules to civil proceedings is debatable.31 Their
relevance to a tribunal not bound by the rules of evidence is even more questionable. But in
any event, after stating the proposition referred to, Dixon J in Martin v Osborne went on to
say32:
“But the class of acts and occurrences that may be considered includes circumstances
whose relation to the fact in issue consists in the probability or increased probability,
judged rationally upon common experience, that they would not be found unless the
fact to be proved also existed. ... it is at least true, I think, that the acts of a party are
admissible against him whenever they form a component in a combination of
circumstances which is unlikely to occur without the fact in issue also occurring. The
repetition of acts or occurrences is often the very thing which makes it probable that
they are accompanied by some further fact. The frequency with which a set of
circumstances recurs or the regularity with which a course of conduct is pursued may
exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact
to be proved.”
[27] Ultimately the touchstone is relevance. As the Full Bench said in Michael King v
Freshmore (Vic) Pty Ltd:33
“[70] ...Propensity evidence may be admissible if sufficiently relevant to the issues
which arise for determination in the case. Contrary to the appellant's submission in
these proceedings the question of prejudice is not a matter to be taken into account.
But even if prejudice was relevant we are satisfied that it was open to his Honour to
conclude that the evidence in question was relevant and that its probative value
outweighed any potential prejudice.
[28] The past history of industrial action at the Port Botany site, in particular any earlier
occurrence of a productivity limitation, was plainly relevant to an assessment of whether in
the circumstances of this case industrial action was taking place. We therefore do not consider
that Vice President Watson erred in taking this matter into account.
[29] The MUA also submitted, based on the decision of the Federal Court (French J, as he
then was) in CEPU v Laing34 (at p.30), that “communication” was an essential element of a
ban, limitation or restriction under paragraph (b) of the definition of “industrial action” in
s.19(1) of the Act, and that the failure of his Honour to identify the “communication” of the
29 Ibid at [42]
30 (1936) 55 CLR 367 at 375
31 Cross on Evidence, Australian edition at [21280]
32 At 375-376
33 Print S4213
34 (1998) 89 FCR 17
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13
productivity limitation meant that it was not open to him to find that industrial action of that
nature was occurring. We do not agree. French J did not say in the part of his judgment in
CEPU v Laing to which we were taken that “communication” was an essential element of the
definition, but that the definition extended to “conduct by way of communication” of a ban,
limitation or restriction of an at least hortatory if not authoritative and binding nature, so that
“communication can be industrial action”.35 Accordingly, it was not necessary for Vice
President Watson to make a finding identifying a “communication” of the productivity
limitation in order to find that such a limitation was occurring.
[30] We conclude therefore that there was no error in his Honour’s finding that industrial
action by way of a productivity limitation was occurring and was ongoing; and his further
finding that, absent an order stopping it, it was likely to continue followed as a matter of
common sense and logic. Those findings were sufficient to require his Honour to make an
order under s.418(1) requiring that industrial action stop and not occur. That being the case, it
is not strictly necessary for us to consider in detail whether there was any error in relation to
his Honour’s finding that the absenteeism episode on 14-16 June 2013 also constituted
industrial action. It is sufficient for us to say that the inference his Honour drew about this
incident was one that appears to us to have been fairly open to him, and supported the
conclusion that further industrial action in connection with the automation dispute was
probable.
The organisation finding
[31] The second aspect of the MUA’s appeal concerned Vice President Watson’s finding
that the MUA was, through its delegates and/or its officials, organising the industrial action
which he had found was taking place. The MUA submitted that this finding was in error,
because it was founded only upon “an inference of MUA involvement”, mere “involvement”
not being sufficient to constitute the organisation of industrial action. It followed, the MUA
submitted, that because the finding of MUA organisation was made in error, his Honour had
no power to order the MUA or its officials, employees, delegates or agents to stop and refrain
from organising industrial action (as he did in clause 4.1 of the Order). This submission was
founded upon the following passage in the majority judgment (Gray and North JJ) of the Full
Court of the Federal Court in Transport Workers’ Union of New South Wales v Australian
Industrial Relations Commission36 (underlining added) (TWU v Australian Industrial
Relations Commission):
“[24] For present purposes, it is enough to say that, in the absence of any finding
other than that industrial action, not being protected action, by employees was
happening, the Commission had no power to go beyond the making of orders that the
industrial action stop. Without it appearing to the Commission that industrial action
was threatened, impending or probable, the Commission was under no duty, and had
no power, to make any order that the industrial action not occur. Similarly, in the
absence of a finding that the industrial action was being organised, the Commission
had no duty, and no power, to make an order that the industrial action not be
organised.”
35 Ibid at 30-31
36 [2008] FCAFC 26; (2008) 171 IR 84
[2013] FWCFB 7736
14
[32] TWU v Australian Industrial Relations Commission concerned orders made under
s.496(1) of the former Workplace Relations Act 1996, but that provision is sufficiently similar
to s.418(1) of the Act as to make its reasoning fully applicable. Indeed, to the extent that there
are changes in s.418(1) compared to the former s.496(1), that appears to be a result of the
legislative drafting being designed to conform to the reasoning of the majority in TWU v
Australian Industrial Relations Commission.37 TWU v Australian Industrial Relations
Commission has been followed in this Commission in interpreting and applying s.418(1),
including by the Full Bench in AMWU v UGL Resources Pty Ltd which said38:
“FWA is not empowered to make an order that industrial action not be organised unless
it makes a finding that industrial action is being organised.”
[33] That part of the Decision in which his Honour made the finding of MUA organisation
was as follows:
“[29] In my view the nature of the industrial action that I have found has occurred
and continues to occur could only happen if it was coordinated and planned. Because it
is covert, it can be expected that it will be associated with attempts to avoid the
detection of anyone associated with it. Mr Keating and Mr Freestone deny its existence
and deny their involvement in industrial action. It is clear that they have both refrained
from being involved in any more overt industrial action and could well have
encouraged employees not to engage in overt industrial action. However their refusal
to accept that any industrial action is occurring, or show any sympathy for the
productivity performance, colours their denials. The shifting nature of the industrial
action and the apparent contrived device since 7 June of one well performing crew per
shift to produce performance statistics at odds with Patrick’s initial evidence strongly
supports an inference of MUA involvement. I find on the evidence that the MUA
through its delegates and/or its officials is organising and is involved in the industrial
action that is taking place.”
[34] The opening sentence of the above paragraph refers to the industrial action being
“coordinated and planned”. We consider that the coordination and planning of industrial
action would constitute organisation of it, and neither party before us submitted otherwise.
The question is whether the above paragraph is to be read as meaning (as Patrick submitted)
that the “involvement” of the MUA upon which the organisation finding was founded was
constituted by the coordination and planning earlier referred to, or whether (as the MUA
submitted) such MUA “involvement” was some separate and lesser form of conduct not
capable of being characterised as organisation.
[35] It may be accepted that in the above paragraph his Honour did not state expressly that
the MUA involvement was constituted by participation in the coordination and planning of
the industrial action. However, in assessing whether his Honour’s organisation finding was
attended by any appellable error, it is important to bear in mind the following principle
discussed by Buchanan J in the Federal Court Full Court decision in Fox v Australian
Industrial Relations Commission39:
37 AMWU v UGL Resources Pty Ltd [2011] FWAFB 4777; (2011) 214 IR 237 at [17]
38 Ibid at [20]
39 [2007] FCAFC 150. Buchanan J dissented, but not in a way which affected the correctness of the quoted statement of
general principle.
[2013] FWCFB 7736
15
“[116] At one point in its decision the Full Bench referred, pointedly, to the enjoinder
expressed by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6; (1996) 185 CLR 259 at 291 that:
‘The reasons under challenge must be read as a whole. They must be
considered fairly. It is erroneous to adopt a narrow approach, combing
through the words of the decision-maker with a fine appellate tooth-comb,
against the prospect that a verbal slip will be found warranting the inference of
an error of law.’
[117] The same principle is referred to in the majority judgment (185 CLR at 272).
Both the majority judgment and Kirby J referred to the judgment of a Full Court of
this Court in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280
at 286-287 where a similar principle was stated in relation to the consideration by this
Court, of appeals on questions of law from the Administrative Appeals Tribunal under
s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
[118] Contrary to Mr Fox’s submissions to this Court the principle is one which
applies to appellate, as well as jurisdictional review. The principle emphasises the
need for adequate identification of the error which is alleged. An error is not to be
found merely in looseness of language or infelicity of expression. In view of the
crucial importance, in the statutory scheme, of error as the gateway to appellate review
by the AIRC, in my view the principle was equally apposite in the present case.
[119] Mr Fox submitted that the Full Bench had thereby misdirected itself, in a way
which revealed jurisdictional error, about the nature of its role. The implication was
that the Full Bench had taken an insufficiently rigorous approach to the examination of
whether error existed. The submission should not be accepted. The Full Bench was
correct to concentrate on the substance of the matter and treat with reservation any
textual dissection of Commissioner Roberts’ reasons that overlooked the real character
of his findings.”
[36] Based upon a reading of the Decision as a whole and the ascertainment of the true
character of his Honour’s findings, we consider that the organisation finding was based upon
the conclusion that the MUA, either through its delegates and/or officials, had coordinated
and planned the industrial action. The main contextual consideration is that in paragraph [29]
of the Decision, his Honour was responding to a submission made by Patrick that he should
draw the inference that the MUA was organising the industrial action. That submission, as
recited by his Honour, included the express proposition that the MUA was involved in the
planning and coordination of the industrial action:
“[27] Patrick contends that it is inherently unlikely that the industrial action is occurring
without coordination and organisation amongst employees and the MUA. It submits
that an inference should be drawn from the facts and circumstances that the MUA and
its representatives, have organised, or are organising, or are directly or indirectly
involved in, or concerned, with the industrial action. It relies on the high level of
unionisation, its extensive delegate structure, the nature of the current dispute over
automation, the representation of employees by the MUA in the dispute, the expression
[2013] FWCFB 7736
16
of intention by employees, and the regular contact between MUA officials and its
delegates and members.”
[37] Therefore we consider that when in paragraph [29] of the Decision his Honour
referred to the industrial action necessarily having been coordinated and planned, he was
taking up Patrick’s contention that it should be inferred that the MUA had been a party to that
coordination and planning. Thus when later in that paragraph his Honour drew an inference of
MUA “involvement”, when read in the immediate context of the Decision it is reasonably
apparent that his Honour was referring to involvement in the coordination and planning, and
therefore the organisation, of the industrial action.
[38] Earlier findings in the Decision which were not challenged on appeal provided a
proper foundation for this inference. We have earlier quoted paragraphs [18]-[20] of the
Decision in which His Honour described the history of industrial action, including
productivity restrictions, at Patrick’s Port Botany workplace and its connection with the high
degree of unionisation amongst the workforce. His Honour also referred to the evidence of Mr
O’Leary, which he accepted, in the following way (underlining added):
“[11] Patrick led evidence of a history of productivity restrictions being used by the
MUA and its members at Port Botany to exert pressure on Patrick over industrial
demands. Mr Mick O’Leary, the General Manager, Industrial Relations for Patrick and
a former MUA Deputy National Secretary gave evidence of the imposition and lifting
of productivity caps and go-slows over recent years. His evidence was that a
productivity cap was an acknowledged form of industrial action and that, in his
experience, industrial action does not occur at the Port Botany terminal without the
knowledge and involvement of the MUA.”
[39] Having regard to those matters and the more immediate context of resistance to
automation being led by the MUA, when confronted with a further instance of industrial
action by way of a productivity limitation that by its nature required coordination and
planning by somebody, we consider his Honour was entitled to draw the inference that the
MUA was a participant in the organisation of that industrial action. That was the most
probable explanation of what was occurring, even if the actual persons who were involved in
such organisation on behalf of the MUA cannot be identified.
[40] The MUA submitted that the factors to which we have referred as supporting the
inference drawn by his Honour were similar to those which the Full Bench in AMWU v UGL
Resources Pty Ltd “at [22] found demonstrated that a s.418 order could not be made against
the AMWU without an evidentiary foundation”. We do not accept that submission. In that
case, the decision maker at first instance had not been satisfied that the union had organised or
was organising the industrial action, but made a “not organise” order against the union
nonetheless. That, as the Full Bench found, was a clear error based on the authority of TWU v
Australian Industrial Relations Commission as earlier discussed. Further, the evidence
adduced by the union, which had been accepted, was that the union organiser, at the request of
the employer, had tried to prevent the industrial action occurring in what was characterised as
a “firefighting” role. Here, although Mr Keating and Mr Freestone had given evidence that
they had tried to dissuade employees from taking industrial action, that evidence was
discounted by his Honour for a number of reasons including that they both denied that any
industrial action was taking place at all. Having discounted that evidence, his Honour was
entitled to draw the inference of organisation based on the contextual matters to which we
[2013] FWCFB 7736
17
have earlier referred. No matters of that nature were referred to in AMWU v UGL Resources
Pty Ltd.
Terms of the Order
[41] In an alternative submission, the MUA submitted that even if Vice President Watson
was required to make an order under s.418(1), the terms of the Order in certain respects went
beyond what was required or permitted under the Act. We observe from the outset that had
the period of operation of the Order expired by the time of the hearing of this appeal, it is
doubtful that we would have granted permission to appeal in respect of this submission. There
being no suggestion of any non-compliance with any part of the Order at all, let alone the
parts of the Order impugned by the MUA’s alternative submissions, such an appeal would
have been lacking in utility.40 However, the Order was made with a period of operation of six
months, with about three months remaining until its expiry. It imposes continuing obligations
on those bound by it. Therefore, to the extent that any part of the Order goes beyond what is
required or permitted by s.418 and has a continuing effect, we consider that that is a matter
which would justify the grant of permission to appeal.
[42] The MUA’s challenge to the terms of the Order may be summarised as follows::
(1) clause 4.1(a) required the MUA and the MUA representatives to not engage in
any unprotected industrial action at Port Botany, in circumstances where there
had been no finding that they had engaged or proposed to engage in industrial
action;
(2) clause 4.1(c) required that the MUA and the MUA representatives not “aid,
abet, direct, procure, induce, advise, authorise or encourage” the taking of
unprotected industrial action, as well as not organise it, which takes it beyond
the scope of power in s.418(1);
(3) clause 4.1 as a whole bound “MUA representatives”, which expression is
defined in clause 3.3 to mean “officials, delegates, employees and agents” of
the MUA, and thereby included persons (such as administrative employees of
the MUA and delegates at other workplaces) who had no rational connection
with Patrick’s Port Botany workplace;
(4) the requirement in clauses 4.2, 4.3 and 4.4(a) that the MUA prepare and issue a
written notice informing employees, inter alia, that any direction, advice or
authorisation by the MUA to employees to engage in industrial action was
withdrawn was beyond power because Vice President Watson had never made
a finding that any such direction, advice or authorisation had ever been issued;
(5) clause 4.5(b) of the Order required Patrick employees to “be available for
work, and perform work, as required by Patrick”, which was not authorised by
s.418(1); and
40 See e.g. Transport Workers Union of Australia, Union of Employees (Queensland Branch) v Bus Queensland [2009]
AIRCFB 150 at [12]-[15]
[2013] FWCFB 7736
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(6) the definition of “unprotected industrial action” in clause 4.6 of the Order
included aiding, abetting, counselling, procuring, authorising, directing,
organising or encouraging of any person to whom this Order applies to engage
in industrial action, which went beyond the definition of “industrial action” in
s.19 of the Act and was therefore beyond power.
[43] We consider that the MUA’s challenge to this part of the Order is substantially correct.
As we have earlier concluded, his Honour found that the MUA, through its officials and its
delegates at Patricks, had organised industrial action. That meant that a “not organise” order
directed at the MUA was required. However his Honour did not find that the MUA itself and
its officials had engaged in industrial action, and it is unlikely that any such finding could
have been made in any event. As was pointed out by the majority in TWU v Australian
Industrial Relations Commission41:
“Manifestly, the kind of industrial action to which s 496(1) is directed is not industrial
action that a union can engage in by itself. The subsection is directed to ‘industrial
action by an employee or employees, or by an employer’.”
[44] The above passage refers of course to s.496(1) of the former Workplace Relations Act
1996, but s.418(1) of the Act likewise refers to “industrial action by an employee or
employees, or by an employer”, so that the industrial action which may be the subject of a
“stop, not occur or not be organised” order is necessarily industrial action engaged in by
employees or employers, as the case may be. Thus, while a union can plainly be ordered not
to organise industrial action, it is difficult to see how under s.418(1) it can itself be ordered to
stop and not engage in industrial action which is engaged in by employees. That is not to say
however that, under a s.418(1) order, a union may not be ordered to take a specifically-
identified action if that is considered to be essential or necessary to make effective an order
that industrial action by employees stop or not be engaged in.
[45] We note that in TWU v Australian Industrial Relations Commission the Full Court
majority contemplated the possibility, without determining the issue, that a “stop and not
engage in” order could be made against a union involved in industrial action by employees on
the basis of s.4(5) of the Workplace Relations Act, which provided that in that Act “a
reference to engaging in conduct includes a reference to being, whether directly or indirectly,
a party to or concerned in the conduct”.42 As the MUA pointed out and Patrick conceded,
there is no equivalent to s.4(5) in the current Act which is capable of application to s.418.
[46] The extension of the obligations under the Order on the MUA and MUA
representatives not to “aid, abet, direct, procure, induce, advise, authorise or encourage” the
taking of unprotected industrial action, as well as not to organise it, may be jurisdictionally
problematic. Insofar as these types of conduct may be synonymous with or a subset of the
concept of the organisation of industrial action, they constitute unnecessary verbiage.
However, to the extent that they may go beyond the organisation of industrial action, they are
beyond power unless justifiable as essential or necessary to make effective the “not organise”
order or incidental to or consequential upon the making of the order.
41 At [22]
42 At [22]-[23]
[2013] FWCFB 7736
19
[47] In respect of the attachment of obligations to “MUA representatives”, it is correct to
say that the definition of that expression in the Order goes far beyond persons who could have
any rational connection with the industrial action Vice President Watson found was occurring
at the Port Botany workplace. A similar flaw was identified by the majority in TWU v
Australian Industrial Relations Commission in the order considered in that case:
“[54] Paragraph 4(c) as a whole of the order imposes requirements not merely on the
TWU NSW, but on its officers, employees, agents and delegates, without the
expression of any limitations. In its terms, the order purports to bind all those falling
within the four categories of persons, whether or not they have any knowledge of, or
concern with, the industrial action to which the order relates, or any authority or
capacity to take any steps at all in relation to it. On its face, the order requires that
employees of the TWU NSW engaged in purely administrative duties, agents of
whatever kind, and delegates employed in workplaces having nothing whatever to do
with TNT or Riteway, make choices about what steps they might take, and whether
those steps could properly be described as necessary, reasonable and available to
ensure that employees of TNT or Riteway (whether members of the TWU NSW, or
only eligible to be such members) comply with the order. ... An order of such
generality and vagueness goes manifestly beyond the notion of an order that industrial
action, of whatever kind, stop. It would also go beyond the sphere of any order that
industrial action not occur and not be organised.”
[48] The obligation in clause 4.5(b) of the Order that each Port Botany Employee “be
available for work, and perform work, as required by Patrick” is clearly beyond power. It
extends well beyond engagement in industrial action, in that the general obligation it imposes,
breach of which may expose employees to the imposition of a civil penalty, is unqualified by
any reference to Patrick’s requirements having to be lawful and reasonable. A similar defect
was identified by the majority in TWU v Australian Industrial Relations Commission in
respect of a requirement for employees to “immediately be available for work, and perform
work as required by the Company in accordance with the [applicable industrial] Agreement”.
The majority said43:
“It is difficult to see how an order requiring each employee to perform work as required
by his or her employer, in accordance with every term of a collective agreement, could
ever be regarded as necessary for, incidental to or consequential upon the making of an
order that industrial action stop, not occur or not be organised. An order of this nature
has the potential to expose an employee to a financial penalty for failing to comply
with some requirement of an employer, irrespective of whether the requirement is
reasonable or whether it is a requirement to do something that would normally be
expected of the particular employee in the position in which he or she has been
engaged. The making of an order requiring work in accordance with the terms of an
industrial agreement or award would appear to require an examination of the terms of
that agreement, the selection of those applicable, and a consideration of the duties of
each employee in relation to those terms.”
[49] The definition of “unprotected industrial action” in clause 4.6 of the Order, upon
which the other obligations under the Order operate, is also jurisdictionally unsound. Section
418(1) orders are to be made in respect of industrial action by employees and employers
43 At [48]
[2013] FWCFB 7736
20
which is not protected. “Industrial action” in that connection is defined in s.19 of the Act. It
does not include what is set out in clause 4.6(d), namely the “aiding, abetting, counselling,
procuring, authorising, directing, organising or encouraging of any person to whom this Order
applies to engage in the conduct referred to in paragraphs (a) to (c) above” (clause 4.6 (a) to
(c) reproduces that part of the statutory definition in s.19(1)(a)-(c)).
[50] However, we do not consider that the requirement in clause 4.2, 4.3 and 4.4(a) of the
Order that the MUA prepare and issue a written notice informing employees inter alia that any
direction, advice or authorisation by the MUA to employees to engage in industrial action was
withdrawn was beyond power. In circumstances where Vice President Watson had found that
covert industrial action was being engaged in by employees and that it was being organised by
the MUA, we consider that such a requirement could be justified as reasonably necessary to
make the stop, not engage and not organise order effective. The MUA relied upon the
following passage in TWU v Australian Industrial Relations Commission in support of its
contention that such an order was beyond power absent a specific finding that the MUA had
issued a direction, advice or authorisation to employees to take industrial action:
“In the absence of any finding that there was any direction, advice or authorisation to
delegates or members of the TWU NSW in the present case, it is hard to see how an
order requiring immediate advice that such direction, advice or authorisation was
withdrawn and that any action must cease was justified.”
[51] It must be remembered however that in TWU v Australian Industrial Relations
Commission there was no finding that the union had organised the industrial action at all.
Here, as earlier discussed, there was an organisation finding. Given that the industrial action
that his Honour found was being organised was covert in nature, it is not surprising that no
specific direction, advice or authorisation by the MUA was capable of identification. We do
not consider that to be a jurisdictional impediment to the making of the notice requirement in
the circumstances of this case.
[52] We would observe generally (by reference to TWU v Australian Industrial Relations
Commission) that any order made under s.418(1) must “be essentially an order that the
relevant industrial action stop, not occur or not be organised, as the case may be”, and “the
Commission is not empowered to choose whatever means it thinks likely to enhance the
attainment of the object of its orders, when it formulates those orders”; the Commission must
therefore “focus its attention on the essence of the powers conferred on it, when it formulates
its orders”.44 Orders of a “catch all nature” or based on a “template” may not be appropriate;
there is a need to “carefully tailor orders ... in a practical way so that no one set of orders will
be appropriate in all cases”.45 We note that the standard form for an application for orders
under s.418(1) (Form F14 at point 5) requires the applicant to set out in draft form the orders
sought, and that his Honour’s Order was issued in substantially the manner and form sought
by Patrick.
44 Per Gray and North JJ at [38]
45 Per Gyles J at [72]
[2013] FWCFB 7736
21
Disposition of the appeal
[53] We grant permission to appeal, but only because of the merit of the MUA’s challenge
to certain terms of the Order and on the basis that the Order is still in effect. We uphold the
appeal in this limited respect, and dismiss the other grounds of appeal.
[54] There remains to consider what orders we should make in respect of the terms of the
Order. There being, as earlier stated, no issue of non-compliance by anybody with the Order
to date, we think it sufficient to vary the Order from the date of this decision. The variation
will correct the matters that we have identified, and remove provisions which have completed
their purpose (in particular the written notice requirement). The amended Order46 will provide
as follows:
“1. TITLE
This Order shall be known as the Patrick Stevedores Holdings Pty Limited – Port
Botany – Industrial Action Order No.1 of 2013. (the Order).
2. APPLICATION
This Order applies to work and employment regulated by the Patrick Terminals
Enterprise Agreement 2012 (the Agreement).
3. PARTIES BOUND
The parties bound by this Order are:
3.1 Patrick Stevedores Holdings Pty Limited (Patrick);
3.2 The Maritime Union of Australia, including its office-holders and those of its
delegates who are Port Botany Employees (the MUA);
3.3 employees of Patrick who are members of the MUA and who are employed at
its terminal at Port Botany in the State of New South Wales and whose work
and employment are regulated by the Agreement (the Port Botany Employees).
4. INDUSTRIAL ACTION MUST STOP, NOT OCCUR AND NOT BE
ORGANISED
4.1 The MUA must not organise any industrial action involving any of the Port
Botany Employees.
4.2 Each Port Botany Employee must:
(a) immediately stop engaging in, or threatening to engage in, industrial
action;
46 PR542883
[2013] FWCFB 7736
22
(b) not continue, recommence or organise any industrial action during the
period of operation of this Order.
4.3 For the purposes of this Order, the expression “industrial action” means action
of any of the following kinds:
(a) the performance of work by a Port Botany Employee in a manner
different from that in which it is customarily performed, or the adoption
of a practice in relation to work by a Port Botany 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 a Port
Botany Employee or on the acceptance of or offering for work by a
Port Botany Employee;
(c) a failure or refusal by Port Botany Employees to attend for work or a
failure or refusal to perform any work at all by Port Botany Employees
who attend for work;
but does not include the following:
(d) protected industrial action within the meaning of s.408 of the Fair
Work Act 2009;
(e) action or conduct by Port Botany Employees that is authorised or
agreed to by or on behalf of Patrick; or
(f) action by a Port Botany Employee if:
(i) the action was based on a reasonable concern by 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.
5. SERVICE OF ORDER
It will be sufficient service of this Order upon the parties bound by this Order if:
5.1 a copy is sent by facsimile transmission to:
National Secretary
The Maritime Union of Australia
(02) 9261 3481
5.2 a copy of this Order is placed on the notice boards usually used for the purpose
of communicating with Port Botany Employees.
[2013] FWCFB 7736
23
6. TERM AND DATE OF EFFECT
This Order shall come into effect at 5.00pm on 4 July 2013 and shall replace the
Patrick Stevedores Holdings Pty Limited – Port Botany – Industrial Action Interim
Order No.1 of 2013 with immediate effect. This Order shall remain in force for a
period of six months.”
VICE PRESIDENT
Appearances:
S. Crawshaw SC with A. Slevin of counsel for the Maritime Union of Australia
H. Dixon SC with Y. Shariff of counsel for Patrick Stevedores Holdings Pty Limited
Hearing details:
2013.
Sydney:
24 September.
Printed by authority of the Commonwealth Government Printer
Price code C, PR542850
WORK COMMISSION -- AUSTRALIA THE SEAL OF FA
