[2015] FWCFB 4895
The following decision coded [2015] FWCFB 4895 wholly replaces the decision previously
issued with the code [2015] FWC 4642 on 17 July 2015.
The document has been reissued due to a reference error.
Shomaice Zowghi
Associate to Vice President Catanzariti
Dated 17 July 2015.
1
Fair Work Act 2009
s.604 - Appeal of decisions
Maritime Union of Australia, The
v
Teekay Shipping (Australia) Pty Ltd
(C2015/3262)
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER JOHNS
SYDNEY, 17 JULY 2015
Appeal against decision [2015] FWC 4498 and order PR569058 of Commissioner Cambridge
at Sydney on 7 July 2015 in matter number C2015/4570.
[1] This is an appeal by the Maritime Union of Australia (the MUA) against a decision1
(Decision) and order2 (Order) of Commissioner Cambridge made on 7 July 2015 in relation to
an application made by Teekay Shipping (Australia) Pty Ltd (the Respondent) pursuant to
s.418 of the Fair Work Act 2009 (the Act).
[2] At the hearing, Mr Crawshaw of Counsel sought permission to appear for the MUA
and Mr Warren of Counsel sought permission to appear for the Respondent. Given the
complexity of the matter, and having regard to s.596 of the Act, permission was granted to
both parties to be represented.
[3] Permission to appeal was granted in this matter for reasons discussed further below
and the matter proceeded by way of a rehearing. We note that the Full Bench may exercise
their discretion to admit new evidence or take into account any other information or evidence
on appeal pursuant to s. 607(2) of the Act. In these circumstances the Respondent made an
application under s. 607(2) of the Act to admit further evidence, comprising of a Statement
and an email dated 6 July 2015. Counsel for the MUA initially objected on the basis that
evidence that could have been allowed at first instance should not be called on appeal3, but
subsequently made a concession to allow the email only to be admitted. The Respondent did
not press the admittance of the Statement. In light of the concession, the email only was
allowed to be admitted.
Background
[4] The Respondent is the technical manager of the vessel the Alexander Spirit, a fuel
tanker, and is the employer of the crew on the ship. The ratings/caterer/cook which form part
of the current crew of the Alexander Spirit are members, or eligible to be members of the
MUA and are covered by the Teekay Shipping Australia Pty Limited Seagoing Ratings
[2015] FWCFB 4895
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 4895
2
Enterprise Agreement 2011. The Alexander Spirit is currently time chartered to Caltex
Australian Petroleum Pty Ltd (Caltex).
[5] The Alexander Spirit was berthed at the Port of Devonport Tasmania and was
scheduled to sail at 10.00am on Thursday 2 July 2015 on a 13 day journey to Singapore for
the purposes of having its hull cleaned.
[6] On the evening of 1 July 2015, the crew sent an email to the Respondent requesting
confirmation in writing, prior to departure, that the vessel would return from Singapore after
the hull clean and resume Australian trade. The Respondent replied on the morning of 2 July
2015 and informed the crew that they were in discussions with Caltex to establish future plans
for the vessel after the hull clean, and that as soon as they had a definite answer, they would
communicate it to the crew and the union.
[7] Less than an hour later, the Respondent received an email sent on behalf of the crew,
advising the Respondent of a refusal by 36 members of the crew to sail the ship to Singapore.
Shortly afterwards on 2 July 2015 the Respondent filed an application pursuant to s. 418 of
the Act for an order to stop industrial action.
[8] On the afternoon of 2 July 2015, a letter was sent from Caltex to the Respondent
requesting a change to the crewing nationality matrix of the Alexander Spirit. Specifically,
Caltex requested that the Respondent replace the current crew of the Alexander Spirit with an
international crew. The change was described as a “commercial decision” following the
closure of the BP Bulwer Island Refinery which had resulted in there no longer being a need
for Caltex to have a dedicated vessel to perform coastal voyages to other ports around
Australia. Caltex requested that this change be implemented as soon as reasonably
practicable. It became apparent that the existing crew of the Alexander Spirit would be made
redundant upon arrival at Singapore.
[9] On the evening of 2 July 2015, the Respondent met with the whole crew aboard the
Alexander Spirit, in the presence of MUA officials, and notified the crew of the change as
advised by Caltex in the letter.
[10] On 3 July 2015, the Respondent met again with the crew in the presence of MUA
officials and asked them if they were prepared to sail the vessel on that day. The crew
members answered collectively in the negative.
[11] Some peaceful protests occurred over the course of the next 2 days at the port and the
ship was rescheduled to depart Devonport at 3:00pm on the afternoon of 5 July 2015. Further
meetings occurred between the crew members, MUA officials and the Respondent however,
the Alexander Spirit did not sail at its scheduled departure time on the afternoon of 5 July
2015.
Relevant Legislative Provisions
[12] Section 418 of the Act provides as follows:
“418 FWC must order that industrial action by employees or employers stop
etc.
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(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.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who
is likely to be affected (whether directly or indirectly), by the
industrial action;
(ii) an organisation of which a person referred to in subparagraph (i)
is a member.
(3) In making the order, the FWC does not have to specify the particular industrial
action.
(4) If the FWC is required to make an order under subsection (1) in relation to
industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop
period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in
after the end of that stop period without another protected action ballot.”
[13] Section 19 of the Act defines industrial action as follows:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
[2015] FWCFB 4895
4
(a) the performance of work by an employee in a manner different from that in
which it is customarily performed, or the adoption of a practice in relation to
work by an employee, the result of which is a restriction or limitation on, or a
delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee
or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to
perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the
employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union v The Age Company Limited, PR946290, the Full Bench of the Australian
Industrial Relations Commission considered the nature of industrial action and noted
that action will not be industrial in character if it stands completely outside the area of
disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the
employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of,
employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about
an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of
his or her employer to perform other available work, whether at the
same or another workplace, that was safe and appropriate for the
employee to perform.
(3) An employer locks out employees from their employment if the employer
prevents the employees from performing work under their contracts of
employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see
section 11).”
Decision at First Instance
[14] The Commissioner heard the matter on 6-7 July 2015, and made a short ex tempore
decision late in the day on 7 July 2015. The edited text of the Commissioner’s decision taken
from the transcript was published on 7 July 2015.
[2015] FWCFB 4895
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[15] The Commissioner considered the argument of the MUA, that the industrial action that
was identified was excluded from the definition of “industrial action” in s.19 of the Act as it
was based on a reasonable concern about an imminent risk to health or safety, and found as
follows:
“[7] The evidence produced during the Hearing has confirmed that the industrial action
which is the subject of the application is happening or is threatened, impending, or
probable or is being organised. The MUA has advanced inter alia, the proposition that
the industrial action taken in this instance does not satisfy the definition of industrial
action on the basis that it is action that meets the exclusion to the definition of
industrial action contained in s. 19 (2) (c) of the Act.
[8] I have considered the evidence provided by the MUA upon which it has been
asserted that the industrial action relates to health and safety concerns of the MUA and
its members such that the action has been taken in satisfaction of the terms of s. 19 (2)
(c) of the Act. Upon evaluation of the evidence, I am unable to accept that the
industrial action in this instance satisfies the legislative exclusion provided by s. 19 (2)
(c) of the Act.
[9] The existence of what may be considered to be a legitimate concern which prompts
the taking of industrial action does not render that action to be protected industrial
action. Further, industrial action does not become protected industrial action because
of circumstances where there may be personal psychological impacts arising from the
continuation of work in accordance with the manner that work is customarily
performed and without any form of restriction, limitation or delay upon the
performance of work. The prospect of some adverse physiological condition does not
translate into a reasonable concern about an imminent risk to health and safety.
[10] Although I may personally have great sympathy for the crew of the Alexander
Spirit, the predicament that these individuals face is, in essence, a predicament that is
broadly shared by many other Australian workers. The prospect of sailing the
Alexander Spirit to Singapore may, for example, be contemplated in similar fashion to
those vehicle manufacturing workers who assemble the final Falcon, Commodore and
Camry.
[11] Consequently, the industrial action in this instance satisfies the definition of
industrial action and it is not protected industrial action.
[12] Further, I do not believe that the industrial action is based on a reasonable
concern about an imminent risk to health or safety. Therefore, pursuant to s.418 of the
Act, the Commission must Order that the industrial action stop.
[13] The Orders [PR569058] as broadly sought by Teekay are made and issued
separately.”
[16] The Order that the Commissioner made included orders that:
http://www.fwc.gov.au/awardsandorders/html/PR569058.htm
[2015] FWCFB 4895
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(a) Each Employee must immediately stop all industrial action that is happening at the
time that this Order comes into effect, and must not, recommence, engage in or
threaten to engage in, industrial action while this Order is in force.
(b) The MUA and the MUA Representatives, must stop organising, and not organise,
any industrial action by any of the Employees.
(c) The MUA must immediately, upon the service of this Order on the MUA, advise
employees who are members of the MUA, that any direction, advice or
authorisation by the MUA to engage in industrial action is withdrawn and that
such industrial action must cease immediately upon this Order coming into effect.
[17] The term Employee was defined as an employee of the Respondent whose
employment was covered by the Teekay Shipping Australia Pty Limited Seagoing Ratings
Enterprise Agreement 2011. The Order came into effect on 7 July 2015 and expires on 7
August 2015, unless varied or revoked by a further order of the Commission.
The Appeal
[18] The MUA’s grounds for appeal as contained in the Form F7 – Notice of Appeal were
are follows:
1. The Commissioner failed to give adequate reasons for the decision to make the
order.
2. The Decision failed to consider the submissions made by the MUA that were
significant and central to the argument that an order should not be made.
3. The Decision failed to deal at all or, alternatively properly, with the important
issue and jurisdictional prerequisite for the order to be made against the MUA,
namely a finding that the MUA was organising industrial action.
4. The Decision did not afford the MUA procedural fairness in that it relied on the
fact that industrial action was threatened, impending or probable when the
application and submissions of the Respondent only asserted jurisdiction on the
basis that industrial action was happening.
5. The Decision was affected by error as a finding that the industrial action was
happening or threatened, impending or probable or was being organised was not
available on the evidence and/or mistook the evidence.
6. The decision was affected by error in that it took into account irrelevant
considerations, including the effect of redundancies in other industries.
7. For such other reasons as to the Commission seem fit.
[19] These grounds were particularised during oral submissions at the hearing. The MUA
drew the Commission’s attention to paragraph [7] of the Decision which relevantly states:
[2015] FWCFB 4895
7
“[7] The evidence produced during the Hearing has confirmed that the industrial action
which is the subject of the application is happening or is threatened, impending, or
probable or is being organised.”
[20] The MUA submitted that in the above paragraph, and indeed in the Decision, the
Commissioner framed the finding in the alternative and did not identify any specific act out of
the 3 acts that are the basis for the making of an order under s.418(1). In the MUA’s
submission, an alternative finding, as opposed to a definitive finding, was not sufficient to
make a jurisdictional basis for making an order against a registered organisation.
[21] Further, the MUA submitted that the Decision did not identify the MUA as having
carried out any specific acts of organisation. In the MUA’s submissions, the MUA could only
be bound by the Order if there was a finding that the MUA, through its officers or in some
other way, organised the industrial action. In circumstances where the order was made against
the MUA, the absence of the requisite finding that the MUA organised the industrial action
rendered the Orders invalid, particularly Order 4(b) and 4(c). The MUA relied on the Full
Federal Court authority in Transport Workers’ Union of New South Wales v Australian
Industrial Relations Commission4(TWU v AIRC) in which his Honours Gray and North JJ
stated the following (underlining added):
“[22] 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". Section 496(1)
also does not say anything about the identity of any person or entity against whom or
which the orders required must be made. It directs itself to the nature of the orders,
rather than to the targets of them. It is easy to see how an order that industrial action
not be organised can be made against a union, if it is that union that is organising the
industrial action. It is more difficult to see how an order can be made against a union,
in the absence of a finding that the industrial action is being organised. A suggestion
that arose in argument before the Court, which did not find its way into the reasons of
Senior Deputy President Hamberger or the Full Bench, was that reliance could be
placed on s 4(5) of the WR Act, which provides:
In this Act, a reference to engaging in conduct includes a reference to being,
whether directly or indirectly, a party to or concerned in the conduct.
[23] If it could be said that s 496(1) contains a "reference to engaging in conduct" (a
question which was not argued comprehensively in the present case), and if it were
found that a union was directly or indirectly a party to or concerned in that conduct, an
order against the union might be possible, without a finding that the industrial action is
being organised. At least, an order that industrial action that is happening stop might
be made against a union, on the basis that industrial action by employees, or an
employer, amounts to engaging in conduct. A finding that industrial action is
threatened, impending or probable, creates greater difficulty in finding that anybody is
engaging in conduct referred to in s 496(1), but the possibility that such a finding
could be made cannot be excluded altogether. All that can be said is that there may be
cases in which s 4(5) of the WR Act might justify an order under s 496(1) against a
union (whether an employee or an employer union) found to be directly or indirectly a
party to, or concerned in, the engagement by another party in conduct referred to in s
496(1). For reasons that appear in [58]-[60] below, in the discussion about whether to
[2015] FWCFB 4895
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grant or withhold orders in the present case, it is unnecessary to determine whether the
findings made in the present case amount to findings invoking s 4(5) in relation to the
TWU NSW.
[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.”
[22] The MUA further submitted, that the above was applied and relied on in the Full
Bench of the Commission in The Maritime Union of Australia v Harbour City Ferries Pty
Ltd5 which involved an appeal against a s. 418 order which ultimately did not resolve in
permission to appeal because the order had expired. In the course of dealing with the
arguments the Full Bench dealt with the following relevant considerations at [30]:
“[30] Given the significant consequences of making an order under s.418 of the Act, it
is essential that a decision maker identify with sufficient particularity the basis of such
an order by making explicit reference to the criteria set out in s.418(1)(a)-(c) of the
Act. Even taking into account the expedited timeframe mandated by the Act for
dealing with applications under s.418, any decision that fails to adequately address the
legislative criteria for the making of an order will be unlikely to withstand even the
most cursory scrutiny.”
[23] The MUA relied on these authorities to submit that it is not enough to just frame a
finding in the alternative, without identifying the registered organisation, the MUA, as being
involved in organising the industrial action the subject of the Orders. In the MUA’s
submission, the only relevant finding which could have resolved in the order being made
against the MUA, was a finding that the MUA through its officials and delegates was at that
time organising the industrial action.6
[24] The MUA further submitted that 4(c) of the Orders were invalid on the basis that the
order requires the MUA immediately upon the service of the Orders to advise employees who
are members of the MUA that any direction, advice or authorisation by the MUA to engage in
industrial action is withdrawn and that such industrial action must cease immediately upon the
Order coming into effect. The MUA directed the Commission again to TWU v AIRC in which
the Full Federal Court made the following observations:
“[52] Clause (iii) of para 4(c) of the order imposes an obligation to take positive action,
as distinct from refraining to do something. This does not necessarily cause it to travel
beyond the power of the Commission. It may be that an order to take some positive
step can be seen as necessary for, incidental to, or consequential upon an order that
industrial action stop, not occur or not be organised. 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.”
[2015] FWCFB 4895
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[25] The MUA submitted that in circumstances where there was no requisite finding by the
Commissioner of any direction, advice or authorisation by the MUA or evidence of any such
direction, advice or authorisation to delegates or members of the MUA, that the Order was
invalid.
[26] The MUA further submitted that during the day of the hearing, there was no industrial
action occurring and the employees were working as usual by moving the vessel across to the
other side of Devonport Bay to allow a dredging operation to take place at the existing birth.
[27] In the MUA’s submission, there was also no evidence before the Commissioner that
any of the categories of persons that came within the definition in the Order at 2(a) “persons,
officers, delegates, employees and agents” of the MUA has organised any industrial action.
Counsel for the MUA contended that the evidence in Mr Whiteside’s statement regarding Mr
Poynter (the MUA delegate and crew member) informing the Master that the crew was
refusing to sail was not evidence of ‘organisation’.7 It was merely an act of ‘informing’ and
the MUA submitted that it did not even necessarily follow that Mr Poynter underwent the act
of informing in his capacity as the MUA delegate. It could have been said that it was in his
capacity as a crew member. Similarly, in relation to the evidence8 surrounding the unions
official’s involvement in the industrial action insofar as they attended meetings, wrote letters
and issued media releases, the MUA submitted that it did not constitutes acts of coordination
or planning regarding the crews refusal to sail and was simply the MUA acting properly for
its members and largely occurred after the event, that is, after the industrial action had already
occurred.
[28] The MUA therefore submitted in conclusion, that even upon rehearing, the
Commission should not make fresh s. 418 orders in light of the fact that the industrial action
was not organised by the MUA and was not occurring at the time of the hearing.
[29] Counsel for the Respondent submitted that it was interesting to note, that the only
evidence given by the MUA at the first instance hearing was evidence purporting to go to the
exception from industrial action dealing with alleged safety issues of concern to the crew.
There was no evidence at all with respect to the assertions that the MUA was not organising
or encouraging industrial action. Yet on appeal, Counsel for the MUA concentrated almost
entirely on that point.
[30] The Respondent conceded that the Decision did not directly consider the organisation
of the MUA or the encouragement of the MUA with respect to the industrial action.
However, the Respondent submitted that there was evidence of the MUA organising
industrial action before the Commission at first instance to the extent that even upon
rehearing, the Full Bench should reach the same conclusions as the Commissioner.
[31] This evidence, the Respondent submitted was found in the Witness Statement of Mr
Whiteside9 and annexure SW4 comprising of an email dated 2 July 2015. The Respondent
noted section 12 of the Act defining an officer as “an official of the association” or “a
delegate or other representative of the association. In SW4 the Respondent submitted that the
MUA delegate Mr Poynter was clearly informing the Respondent of the industrial action as an
officer of the MUA and he was known to be a delegate by the Respondent. The Respondent
submitted that it is reasonable to draw the inference in these circumstances that he was
reporting back and speaking on behalf of the crew as an officer of the MUA.
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[32] The Respondent submitted that further evidence supporting an inference of
organisation can be found in paragraph 26 of Mr Whiteside’s statement which indicates that
MUA officials Mr Bray and Mr Campbell were present at the meeting on 3 July 2015 where
the crew refused to sail. The Respondent submitted that the MUA officials gave authority to
the meeting with their presence and there is no evidence that those officials or the delegate
made any attempt to dissuade members of the crew from the refusal. The same was said by
the Respondent about the 4 July 2015 meeting referred to at paragraph 27 of Mr Whiteside’s
statement where the MUA official directed his members to leave a meeting. The Respondent
submitted that this constituted organising, directing and encouraging. The Respondent further
referred to the contents of documents SW12 and SW13 annexed to Mr Whiteside’s statement
which he submitted were further evidence of the involvement, encouragement and
organisation of the MUA in the dispute. Indeed, this inference was put to the Commissioner at
first instance by the Respondent at PN 492 – that the MUA were probably actively organising
rather than coordinating and supporting the employees in that process.
[33] In relation to the MUA’s assertion that there was no industrial action at the time of the
hearing, the Respondent submitted that it was not the case that the ship moving across the
river to a new berth to allow space for a dredging operation meant that the crew were acting
as normal and were not in dispute. The Respondent characterised it at qualified movement.
The Respondent tendered an email dated 6 July 2015 in support of this submission, which as
mentioned above, the Full Bench allowed to be admitted pursuant to s. 607(2). The email
indicated that the crew was willing to assist with moving the vessel to another berth to allow
the dredging operation. In the Respondent’s submission, this was a limited issue and did not
detract from the fact that the crew was asked to move the ship on the 2, 3 and 5 July and on
each occasion then said no and on each occasion the MUA and an officer as defined of the
MUA was involved.
[34] The Respondent further submitted that the evidence of Mr Kelso, a qualified
counsellor (not a psychologist) who interviewed some 8 members of the crew, was the only
evidence called by the MUA at first instance and was purported to go to the issue of the
health, safety and welfare. In the Respondent’s submissions, this evidence indicated that Mr
Kelso only had serious concerns about 2 of the 8 crew members interviewed. One was
stressed and agitated and the other was removed from the vessel. Therefore, in the
Respondent submissions, the Commissioner’s findings were open to him on the evidence and
were properly come to. The Respondent submitted that there was no evidence that would
satisfy the exclusion to the extent that the crew members could be exempted from
characterisation of industrial action by s. 19 of the Act.
[35] In summary, the Respondent submitted that even if the Full Bench reached the
conclusion that the Commission did not properly articulate his reasons, there is still adequate
evidence to reach the conclusion that there was an industrial dispute in existence and that it
was organised by the Union. He also relied on MUA v Patricks Stevedores10 to note that there
is an element of urgency in exercising the function of s. 418 applications that should be
considered.
Consideration
[2015] FWCFB 4895
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[36] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the
public interest to do so.11 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,12 a Full Bench
summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters...”13
[37] The MUA raised in the Notice of Appeal, the following public interest considerations
and relied on them during oral submissions:
1. The appeal raises issues going to the jurisdiction of the Commission in that there were
inadequate reasons, a breach of procedural fairness and failure at first instance to
consider submissions of the MUA that were significant and central to the argument
that an order should not be made.
2. The Decision at first instance is attended with sufficient doubt to warrant its
reconsideration.
3. The Decision at first instance manifests an injustice and it is in the public interest that
the significant errors contained in the decision at first instance be corrected.
[38] The parties have both conceded that the Decision does not make a specific finding in
relation to the MUA’s organisation of the industrial dispute in circumstances where the
accompanying Orders are directed at the MUA. We note that the Decision of the
Commissioner was a short ex tempore decision delivered late in the day on the matter. In
tandem with this, we also make reference to and consider the following guidance from the
Full Bench in MUA v Patricks Stevedores14:
“[74] That leaves appeal ground (1). Although the Decision is short, we do not consider
that there is any prejudicial insufficiency of reasons in the Decision. Once the
reasoning in the Decision is related to the evidence that was before the Commissioner,
it becomes clear enough what the basis of the Commissioner’s determination was.
Certainly those reasons have proved sufficient to permit the MUA to articulate its case
in this appeal as to why the Order should not have been made. In Transport Workers’
Union of Australia v WA Freightlines Pty Ltd15 the Full Bench said:
“[10] … Where reasons are required, and assuming reasons are given, a question
may arise as to the adequacy of the reasons. Whether the reasons given are
adequate will depend upon the circumstances including the nature of the
statutory function being exercised, the decision and the submissions and
material in the case.”
[75] We consider that the exercise of the statutory function in s.418(1) will always
involve an element of urgency. That is usually the case because of the requirement in
s.420(1) that any application for an order under s.418(1) be determined so far as
practicable within two days. However, even where that proves not to be practicable
[2015] FWCFB 4895
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and an interim order is made under s.420(2) as a result, that should not lead to the
result that any urgency in the application thereby dissipates. It is a serious matter for
persons to be bound by an interim order, contravention of which may attract civil
penalties, in circumstances where the liability of those persons to an order under
s.418(1) has not yet been determined. The Act may require that result, but such a
situation should also lead to the Commission determining the application to finality as
soon as possible even if this cannot be done in the two day period referred to in
s.420(1). We consider that the Commissioner acted in accordance with this preferred
approach by giving short ex tempore reasons for his decision rather than reserving
upon it, and in that context we consider that, save for one matter, the reasons he gave
for his decision were adequate for the purpose.”
[39] It is clear that the legislation contemplates a fast track decision. However,
notwithstanding the speed of s. 418 matters, it is imperative that members of the Commission
articulate with some precision how they reach their conclusion, even if it is in short form.
Section 418 orders must be properly tailored and we reiterate the following comments of the
Full Bench in MUA v Harbour Ferries16 regarding s. 418 decisions:
“[30] Given the significant consequences of making an order under s.418 of the Act, it
is essential that a decision maker identify with sufficient particularity the basis of such
an order by making explicit reference to the criteria set out in s.418(1)(a)-(c) of the
Act. Even taking into account the expedited timeframe mandated by the Act for
dealing with applications under s.418, any decision that fails to adequately address the
legislative criteria for the making of an order will be unlikely to withstand even the
most cursory scrutiny.”
[40] We also note the following comments of the Full Bench in MUA v Patricks Stevedores
Holdings17:
“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”.18 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”.19 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 the
Respondent.”
[41] We are of the view that the public interest has been sufficiently enlivened to allow the
MUA permission to appeal the Commissioner’s Decision. We grant permission to appeal, but
only because of the merit of the MUA’s challenge to certain terms of the Order.
[42] As the matter has proceeded by way of a rehearing, we must make findings as to those
matters that were before the Commissioner at first instance. We have considered all the
materials before the Commission and the evidence of the MUA and the Respondent. We
[2015] FWCFB 4895
13
accept the Respondent’s submissions that on the evidence before the Commission, the MUA
organised, supported and encouraged the industrial action.
[43] We accept all the Commissioner’s findings at first instance and make the additional
finding that the MUA organised the industrial action.
Conclusion
[44] For the avoidance of doubt, we make a positive finding that industrial action was
occurring and that the industrial action was organised by the MUA. The Orders of
Commissioner Cambridge PR569058 will remain otherwise undisturbed.
[45] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is otherwise dismissed.
VICE PRESIDENT
Appearances:
Mr S Crawshaw SC and Mr K Bolwell for the MUA.
Mr R S Warren of Counsel and Mr B Rauf of Counsel instructed by Mr D Lloyd from Ashurst
for the Respondent.
Hearing details:
10 July
2015
Sydney.
Printed by authority of the Commonwealth Government Printer
Price code C, PR569556
THE FAIR WORK COMMISSION THE SEAA
[2015] FWCFB 4895
14
1 Teekay Shipping (Australia) Pty Ltd v The Maritime Union of Australia [2015] FWC 4498; PR569049.
2 PR569058.
3 The MUA relied on Power Projects (2011) FWAFB 1327 at paragraph 12 in support of that proposition.
4 Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26.
5 The Maritime Union of Australia v Harbour City Ferries Pty Ltd [2014] FWCFB 3858.
6 MUA v Patrick Stevedores Holdings Pty Limited [2014] FWCFC 657.
7 Appeal Book 44, paragraphs 22,25, 26, 28 and 29; SW4 at Appeal Book 54.
8 See Exhibit 3 and SW13 Appeal Book 73 and MF11 copy of a letter from MUA to Teekay Shipping; PN131 of Transcript;
see also SW10 at Appeal Book 67 re the MUA Media Release.
9 Exhibit 1 in the first instance proceedings.
10 [2014] FWCFB 657 at [76].
11 Fair Work Act 2009, s.604(2).
12 [2010] FWAFB 5343.
13 GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343, [27].
14 [2014] FWCFB 657 at [75].
15 [2011] FWAFB 3863.
16 [2014] FWCFB 3858.
17 [2013] FWCFB 7739.
18 Per Gray and North JJ at [38].
19 Per Gyles J at [72].
http://www.fwc.gov.au/decisionssigned/html/2011fwafb3863.htm
