1
Fair Work Act 2009
s.424—Industrial action
Svitzer Australia Pty Ltd
v
Australian Maritime Officers’ Union, The
(B2022/75)
DEPUTY PRESIDENT EASTON SYDNEY, 4 MARCH 2022
Application to suspend or terminate protected industrial action - endangering life etc.
[1] On 18 February 2022 I made orders under s.424 of the Fair Work Act 2009 (Cth)
suspending certain protected industrial action because I was satisfied that the action threatened
to cause significant damage to an important part of the Australian economy.1 A copy of those
orders can be found at the end of this decision.
[2] I now provide my detailed reasons.
[3] For more than two years Svitzer Australia Pty Ltd (Svitzer) has been bargaining for a
new enterprise agreement with three unions: The Australian Maritime Officers’ Union
(AMOU), the Maritime Union of Australia Division of the Construction, Forestry, Maritime,
Mining and Energy Union (MUA) and The Australian Institute of Marine and Power Engineers
(AIMPE).
[4] On 11 and 14 February 2022 the AMOU issued notices to Svitzer under s.414(2)(b) of
the Fair Work Act 2009 (Cth) (“FW Act”). The notices advised that protected industrial action
would take place at the ports of Brisbane, Cairns, Port Botany, Port Jackson, Newcastle,
Kwinana, Fremantle, Albany, Geraldton and Mourilyan from 17 February 2022 onwards.
[5] On 14 February 2022 Svitzer applied for orders under s.424 of the FW Act. Svitzer
claimed that the looming industrial action threatened to cause significant damage to the
Australian economy and certain state economies. Svitzer sought orders to suspend the protected
industrial action for a period of three months.
[6] At the hearing on 18 February 2022 Mr Parry QC and Mr Rauf of counsel appeared with
permission for Svitzer. Mr White of counsel appeared with permission for the AMOU.
[7] Svitzer led evidence from three witnesses: Ms Deniz Kirdar True (Svitzer’s General
Manager – Harbour Towage East), Mr Craig Worling (Svitzer’s Port Manager in Brisbane) and
Mr Greg Houston (an expert economist). Each of Svitzer’s witnesses were cross-examined.
1 PR738544.
[2022] FWC 493
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 493
2
[8] The AMOU filed and tendered a statement by Christopher Neiberding, a Senior
Industrial Officer.
History of bargaining and industrial action
[9] The Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (“the
2016 Agreement”) expired in December 2019.2
[10] Since September 2019, Svitzer has been engaged in bargaining for a new proposed
enterprise agreement to replace the 2016 Agreement. In the bargaining process masters
employed by Svitzer have been represented by the AMOU, ratings have been represented by
the MUA and engineers by the AIMPE.
[11] There have been approximately 50 bargaining and drafting meetings so far, as well as
meetings between Svitzer and individual unions. The parties do not appear to be close to
reaching agreement. It is not necessary in this decision to chronicle the history or even speculate
about why no agreement has been reached.
[12] Both the MUA and the AIMPE have taken protected industrial action at various times
since at least October 2020. The MUA has taken industrial action in various forms ranging from
work bans to 24-hour stoppages. Svitzer said that between October 2020 and February 2022 the
MUA issued 44 separate notices to take industrial action. It is not clear whether the industrial
action referred to in each notice actually took place. The AIMPE issued four separate notices
to take industrial action in September and October 2021. The industrial action referred to in the
AIMPE’s notices included a ban on performing work during a period of leave, and 1-4 hour
stoppages in particular ports.
The threatened industrial action
[13] The current protected industrial action is the first bout of protected industrial action by
the AMOU since bargaining started.
2 AE417722.
[2022] FWC 493
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[14] On 11 and 14 February 2022 the AMOU gave notices under s.414(2)(b) of the FW Act.
Svitzer provided the following table summarising the effect of the notices:
No. Date of
notice
Ports
affected
PIA notified
1. 11
February
2022
Brisbane
and Cairns
1. A 48 hour stoppage of work commencing at
6.00am on 17 February 2022 in Brisbane.
2. A 48 hour stoppage of work commencing at
6.00am on 22 February 2022 in Brisbane.
3. A 24 hour stoppage of work commencing at
6.00am on 24 February 2022 in Brisbane.
4. A ban on the performance of work during a
period of leave (including recalls and relief
work) for an unlimited period commencing at
6.00am on 17 February 2022 in Cairns.
2. 11
February
2022
Port
Botany and
Port
Jackson
1. A 48 hour stoppage of work commencing at
12.01am on 17 February 2022 in Port Botany
and Port Jackson.
2. A 48 hour stoppage of work commencing at
12.01am on 22 February 2022 in Port Botany
and Port Jackson.
3. 11
February
2022
Newcastle 1. A 48 hour stoppage of work commencing at
6.00am on 17 February 2022 in Newcastle.
2. A 48 hour stoppage of work commencing at
6.00am on 22 February 2022 in Newcastle.
3. A ban on the performance of work during a
period of leave (including recalls and relief
work) for an unlimited period commencing at
6.00am on 16 February 2022 in Newcastle.
4. 14
February
2022
Kwinana,
Fremantle,
Albany,
Geraldton
and
Mourilyan
1.
2.
3.
A 48 hour stoppage of work commencing
at 7.00am on 19 February 2022 in Kwinana.
A 48 hour stoppage of work commencing at
7.00am on 23 February 2022 in Kwinana.
A 48 hour stoppage of work commencing at
7.00am on 24 February 2022 in Fremantle.
4. A 48 hour stoppage of work commencing at
7.00am on 3 March 2022 in Fremantle.
5. A 4 hour stoppage of work commencing at
7.00am on 24 February 2022 in Albany.
[2022] FWC 493
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6. A 4 hour stoppage of work commencing at
7.00am on 25 February 2022 in Albany.
7. A 4 hour stoppage of work commencing at
7.00am on 3 March 2022 in Albany.
8. A 4 hour stoppage of work commencing at
7.00am on 4 March 2022 in Albany.
9. A ban on the performance of work during a
period of leave (including recalls and relief
work) for an unlimited period commencing at
7.00am on 18 February 2022 in Kwinana,
Fremantle and Geraldton.
10
.
A ban on the performance of work during a
period of leave (including recalls and relief
work) for an unlimited period commencing at
6.00am on 18 February 2022 in Mourilyan
[15] There are 121 masters employed at the ports impacted by the industrial action. There
are 41 masters at Newcastle, 23 in Brisbane, 18 in Sydney, 12 in Fremantle, 8 in Kwinana and
Geraldton, 6 in Cairns/Mourilyan and 5 in Albany.
[16] I make the following observations about the effect of the notices:
a) Between 17 February 2022 and 4 March 2022 there was to be five whole days of
stoppages in Brisbane, and four whole days of stoppages in Newcastle, Sydney,
Fremantle and Kwinana (being together five of the six highest staffed ports); and
b) From 18 February 2022 indefinite relief bans were to be in place in six ports, and were
to apply to up to 41 masters in Newcastle, 12 in Fremantle, 8 in Kwinana and Geraldton,
and up to 6 masters in Cairns/Mourilyan.
The impact of the industrial action on port operations
[17] Tugboats are essential to the arrival and departure of vessels into commercial ports.
Svitzer operates vessels across all types of ports across Australia including container terminals,
liquid bulk terminals, dry bulk terminals, roll-on/roll-off cargo terminals, cruise terminals and
naval docks.
[18] Svitzer is the largest employer of Australian seafarers, employing approximately 540
masters, engineers and ratings to operate over 100 vessels that complete over 40,000 harbour
towage jobs per year.
[19] The 2016 Agreement covers masters, engineers and ratings employed by Svitzer to
perform marine towage services in Adelaide, Albany, Brisbane, Cairns, Eden, Fremantle,
Geelong, Geraldton, Kwinana, Melbourne, Mourilyan, Newcastle, Port Kembla, Spencer Gulf
(Port Pirie), Sydney (Port Jackson & Port Botany) and Westernport.
[20] Each crew is comprised of a master, an engineer and a rating. Vessels cannot be operated
without a full crew of three. Therefore, when members of one union take industrial action the
members of the other two unions cannot work.
[2022] FWC 493
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[21] Save for a limited capacity to subcontract jobs in four particular ports (Port Botany, Port
Jackson, Geelong and Eden), Svitzer has no capacity to mitigate the impacts of the threatened
industrial action.
[22] Further, when a ban is placed on relief work during periods of leave, Svitzer is not able
to cover absences with other employees.
Evidence of Ms Deniz Kirdar True
[23] Ms Deniz Kirdar True, who is Svitzer’s General Manager – Harbour Towage East, gave
evidence that on any given day there is at least two employees in each port on planned or
unplanned leave. Ms Kirdar True’s evidence was:
“Due to the amount of leave typically taken and Svitzer’s reliance of relief work, it is
highly likely that there will be disruption in the ports from the indefinite ban on recalling
crew from their leave to cover absences. This is exacerbated due to the low number of
casuals engaged in those ports and the number of permanent part time employees (PPT)
who have fulfilled or are forecasted to fulfil their guaranteed period. I understand the
numbers are as follows:
(a) Newcastle has one casual master, and it is hard to identify the impact of availability
of PPT masters currently early in the year;
(b) Cairns has no casual masters and one 50% PPT masters available until only March
2022;
(c) Fremantle & Kwinana has 3 casual masters; it is hard to identify the impact of
availability of PPT masters currently; and
(d) Geraldton has no casual masters and one 75% PPT master who is expected to be
unavailable after September 2022.
The impact of both types of action notified will invariably mean that most vessel
movement will come to a halt in the various ports impacted by the industrial action…”
[24] Ms Kirdar True explained in her evidence that for each NIL towage day, i.e. each day
there is a 24-hour work stoppage, it takes each port up to 10 days to return to “normal”. Based
on historical data Ms Kirdar True estimates, by way of example, that the port “recovery” time
is approximately 3 days for Brisbane, 8-10 days for Newcastle, 3-4 days for Port Botany and
2-3 days in Fremantle and Kwinana. Ms Kirdar True said further that recovery time was likely
to increase in circumstances where a port is already facing issues with congestion or capacity,
and that she was aware that some ports are presently facing these issues.
[2022] FWC 493
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[25] Most threatened stoppages were scheduled for 48 hours, although the second threatened
stoppage in Brisbane is scheduled to last 72 hours. Ms Kirdar True made the following specific
estimates about Svitzer’s recovery times:
“Taking a conservative approach and assuming that shipping lines employ the mitigation
responses … I estimate that after a 48 hour stoppage it would take approximately 5 days
for Svitzer’s operations to return to normal. However, normal levels of operation at
Svitzer are not necessarily indicative of recovery by our customers and their customers.
Further, I note that all of the action notified involves a short return to work between
stoppages (for example in Brisbane where there is a 72 hour gap between stoppages).
Based on the Historical Data I do not consider that the period of time between stoppages
will be sufficient for Svitzer to address the lost work and prevent flow on effects to the
supply chain and I would anticipate that the next stoppage would compound the
impacts of the one before it.”
[Emphasis added]
[26] Ms Kirdar True also explained that shipping lines respond to work stoppages in different
ways. Svitzer does not have visibility over the decisions made by shipping lines and accordingly
Ms Kirdar True does not have any historical data to rely upon. She did indicate that shipping
lines might omit a port entirely, return to the port later in a voyage, slow down to delay their
arrival or take other options.
[27] Ms Kirdar True also gave evidence, albeit of a very general nature, about “existing
industry challenges” caused by innovative new competitors, COVID-19, droughts, significant
changes in vessel size, global disruptions to trade patterns, changes in energy strategies, COVID
related terminal capacity reduction due to covid-related workforce absences, weather events
caused by La Niña (e.g. Newcastle and Brisbane) and Operational Changes (e.g. change of
pilotage provider in Brisbane).
Evidence of Mr Craig Worling
[28] Mr Craig Worling has been employed by Svitzer as the Port Manager Brisbane since
October 2021. From 2001 until 2021 Mr Worling worked for DP World Brisbane (and its
predecessor P&O Ports) in various roles including Operations Superintendent and Berthing and
Labour Manager. He is obviously very familiar with the stevedoring and towage industries and
has developed an intricate understanding of the supply chain in the ports.
[2022] FWC 493
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[29] Mr Worling gave evidence regarding the importance of berthing windows. In his
evidence he said:
“Shipping schedules for container vessels are planned well in advance, they are often
negotiated for at least a period of one year, and sometimes two years. Berth windows
(also known as proforma/planned windows) can be slightly changed within that period
of time by mutual agreement. Windows are also adjusted on a weekly basis due to tide
restrictions and other minor issues.
Shipping schedules are negotiated between shipping lines and the relevant port authority
…
In order to make changes to the schedule, the shipping line needs to renegotiate with the
terminal operator to see if the changes can be accommodated. However, this is difficult
to achieve in busy ports or periods of congestion.
While there is some leeway if berthing windows are not met, this leeway is more likely
to be a matter of hours. In the event that a vessel is delayed (by protected industrial
action (PIA) or any other reason) for any longer than that, it results in a compounding
effect on other vessels and the port generally. Idle time of a fully crewed and operating
vessel causes increases costs to shipping lines which are then passed on the end user,
being the importer/exporter. There are also demurrage fees (derived from additional
costs such as fuel costs and usually expressed as a percentage of a contract) which are
payable by the end customer in these circumstances.”
[30] Mr Worling said that sometimes vessel sliding (when a vessel is moved to later in the
berthing schedule, reducing port calls rather than being cancelled) is available but can be limited
by other vessels in the schedule and also by port resources. Mr Worling also said that cargo can
be rolled (loaded onto the next vessel) but this is subject available space. Mr Worling said:
“When containers do not make it on a vessel, it can mean that perishable goods are ruined.
Even if goods are not perishable, shipping customers often have timeline commitments
which mean that orders cannot be fulfilled on time, and goods may no longer be needs
and/or penalties charged. These circumstances can also result in damages claims.”
[31] Mr Worling gave evidence of current congestion in Brisbane, drawing from publicly
available schedules and maps for anticipated movements in the Port of Brisbane, and opined
that “for the period between 17 and 24 February 2022 the port is operating at near full capacity
and is experiencing congestion.”
[2022] FWC 493
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[32] Mr Worling provided specific information to support his view and said:
“This is consistent with my knowledge of recent events in Brisbane. I am aware that last
week on 12 and 13 February 2022 there was a weather event, being strong winds which
resulted in schedule slide and delays to most operators in the port. Further, it has been
my experience that due to ongoing COVID-19 situation globally, there has been “off-
window” pressure at Brisbane port and across the wider industry in general, which
occurs when vessels are unable to enter port at their usual times due to a backlog or delay
to previous services.”
[33] Mr Worling is less familiar with Port Botany and Newcastle operations but is of the
view that both ports were or would be operating at near full capacity and experiencing
congestion in the period between 16 and 24 February 2022. In his evidence Mr Worling
provided schedules and traffic data to support his views, and indicated that he drew upon
specialist knowledge from colleagues based in each port.
[34] Mr Worling concluded that:
“Based on my knowledge and experience in the port of Brisbane, and knowledge of the
current congestion, I anticipate that the impact of the Action on the port of Brisbane will
result in downstream consequences for all port users. Depending on the type of cargo
being carried, this impact will continue through to other parts of the Australian
community, including supermarkets and building supplies.
There will be further congestion to that described above, which I anticipate will
compound with the existing difficulties faced by the ports, as vessels will have nowhere
to go and will be unable to be moved during the stoppage periods.
The resulting delays will be difficult to recover from in circumstances where the port
and all the infinite resources within it (including tug boats, crews, cranes, berths and
time as most parts of the supply chain already operate 24/7) are already at full capacity.
“Recovery” in this context does not necessarily mean that all work that was scheduled
for during the stoppage is carried out immediately after the stoppage, as scheduled as
shipping lines my choose to take alternative approaches (such as those I outline above)
to address the delays.”
While I do not have the same direct knowledge of the other ports, I anticipate that the
impacts will be similar within the context of the usual operations of those ports.”
[2022] FWC 493
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[35] The likely harm to Svitzer caused by the protected industrial action is not of itself
relevant to the matters I am required to consider under s.424. However, the impact of the
protected industrial action on Svitzer’s operation, in so far as it impacts or eliminates Svitzer’s
capacity to provide towage services in affected ports, is materially relevant to assessing whether
the protected industrial action could cause significant damage to an important part of the
economy.3
[36] Svitzer’s evidence establishes that when stoppages apply in affected ports, ships cannot
be loaded and unloaded at all.4 Svitzer’s evidence also establishes that after a stoppage Svitzer’s
operations, and port operations more generally, take several days to return to normal.
AMOU Evidence
[37] The AMOU did not lead any evidence in chief regarding the effects upon the Australia
economy or any significant part thereof. The AMOU’s evidence, given by Mr Neiberding, a
Senior Industrial Officer, focused on the history of bargaining between the AMOU, Svitzer, the
MUA and the AIMPE.
[38] Mr Neiberding was critical of Svitzer’s conduct in negotiations over a long period of
time. I do not have to decide the matter but if Mr Neiberding’s evidence is correct then the
AMOU’s members are entitled to be frustrated by several dramatic changes in Svitzer’s
bargaining position and the considerable delay in finalising negotiations.
[39] Mr Neiberding’s filed statement concluded with the following:
“If the protected action is suspended, then our members will lose the main tool they have
available to them under the legislation to try and shift the Applicant’s bargaining
position. This is the first time they have taken protected industrial action in the
negotiations. It will mean that the parties are less likely to reach agreement for at least
that reason.”
Significant Damage to the National Economy – Principles and case history
[40] In determining an application for orders under s.424(1)(d) I am required to consider
whether there is protected industrial action5 that has threatened, is threatening or would threaten
to cause significant damage to the Australian economy or an important part of it. If I am satisfied
of each of these matters then I am required to make an order suspending or terminating the
protected industrial action.
[41] In this matter there was no contest that:
i. the containerised and liquid and/or dry bulk trade are important parts of each state
economy and of the overall Australian economy; and
ii. protected industrial action was threatened, impending or probable; and
iii. the protected industrial action threatened to cause damage to these important parts of
the Australian economy.
3 See by analogy Tyco Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia (Electrical, Energy and Services Division) (Qld Divisional Branch) (2011) 208 IR 243
at 249-250; [2011] FWAFB 1598 at [28]-[31].
4 Noting the evidence that in Sydney some towage work (60%) can be done by Svitzer’s competitor.
5 Being current, or threatened, impending or probable industrial action per s.424(1)(a) and 424(1)(b).
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb1598.htm
[2022] FWC 493
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[42] The real question for determination was whether the protected industrial action
threatened to cause “significant” damage to these important parts of the Australian economy,
as that term might be understood in s.424.
[43] It is helpful to review how the Commission has determined other s.424 applications.
[44] In Sucrogen Australia Pty Ltd v The Australian Workers' Union and others [2010] FWA
6192 Commissioner Spencer found that “the sugar industry is a highly significant domestic and
export industry and a significant part of the Australian economy” (at [18]) and that the protected
industrial action threatened to cause significant damage to that industry:
“[40] … Damage to the sugar industry cannot simply be measured in terms of the lost
time related to the particular hours of the stoppage in the mills. Halting the crush has a
domino effect that threatened to cause further unrecoverable losses. The sugar industry
is seasonal and as such is dependent on perishable cane to be harvested and crushed in
a specific time period for its optimal return. The flow-on effects from the sugar industry,
being the major agricultural industry and employer in the area has considerable impact
on that part of the economy and communities as was provided in the economic analysis
presented. The proposed industrial action threatened to cause ‘significant damage’ to the
seasonal employment, the completion of the crushing season and the associated
contractual implications.
…
[44] On the evidence I was satisfied that the protected industrial action was threatening
or would threaten significant damage on an important part of the Australian economy
by compromising the crushing season at these mills. The impact of the industrial action
would reduce the ability to harvest all of the season’s cane at the required time at the
optimum CCS, prior to the very real threat of rain shortening the available harvesting
and crushing period. I have taken into account the very real possibility that the industrial
action in combination with the impending weather conditions may result in cane being
left in the fields unharvested, the crushing season being cut short and the implications
of such for growers not being able to meet their contractual obligations and the potential
for further losses to all parties being substantial.”
[45] In Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations (2011) 214
IR 367, [2011] FWAFB 7444 three unions had been separately negotiating with Qantas and
each union had engaged in protected industrial action. Qantas gave notice to take employer
response action of locking out members of the three unions (at [8]). The Minister applied for
an order under s.424 of the FW Act to terminate or suspend the protected industrial action
threatened by Qantas, and also to terminate or suspend the protected industrial action being
engaged in by each union.
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6192.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6192.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7444.htm
[2022] FWC 493
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[46] The Full Bench described the effect of the protected industrial action by the unions over
the previous six months as follows:
“[7] Qantas produced material indicating that the protected action taken by the unions
prior to 29 October had affected 70,000 passengers, led to the cancellation of 600 flights,
the grounding of 7 aircraft, $70 million in damage. That protected action was associated
with significant reductions in forward bookings and decline in market share.”
[47] The Full Bench found that it was unlikely that the industrial action taken by the unions
was threatening to cause significant damage to the tourism and air transport industries (at [10]).
[48] The Full Bench described the likely effect of Qantas’ response industrial action as
follows:
“[9] We heard unchallenged evidence from Mr Mrdak, Secretary, Department of
Infrastructure and Transport and Mr Clarke, Secretary, Department of Resources,
Energy and Tourism as to the importance of airline passenger and cargo transport to the
economy and the effect of the grounding of the Qantas fleet on the aviation and tourism
industries. The tourism industry, including aviation, was estimated as contributing 2.6
per cent to GDP and as having 500,000 employees. The value of inbound tourism is
estimated at $24 billion per year.”
[49] The Full Bench found that the employer’s lockout threatened to directly cause
significant damage to the tourism and air transport industries and indirectly to industry
generally (at [10]).6 The Full Bench’s stated “primary consideration” was the effect of the
protected action on the wider aviation and tourism industries (at [15]), and they thought they
“should do what we can to avoid significant damage to the tourism industry” (at [13]). The Full
Bench ultimately decided “to terminate protected industrial action in relation to each of the
proposed enterprise agreements immediately” (at [16]).
[50] In Minister for Industrial Relations for the State of Victoria v Australian Workers' Union
& Ors [2016] FWC 8826 Vice President Watson found that the threatened industrial would
cause significant damage to the Victorian economy and additional damage to other parts of
South East Australia (at [16]). His Honour’s order was subsequently revoked because it was
found that the relevant industrial action was not protected industrial action.7 Nonetheless the
evidence before his Honour appears to estimate the threatened damage to the state economy by
reference to the employer’s estimated loss (at [15]):
“Although there has been limited analysis of the economic impact of the industrial action,
the impact is quite clear. Ms Lourey estimates that each day’s loss of gas production
6 On judicial review in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, [2012]
FCAFC 65 at [67]-[70], [129] and [176]-[180] the Full Court found that on the Full Bench’s findings “no order could be made
terminating or suspending the protected industrial action being engaged in by any of the unions.” The Full Court ultimately did
not disturb the Full Bench’s order because they found that the order terminating Qantas’ protected industrial action was properly
made, and by reference to s.413(7) found that “the effect of the FWA order meant that neither side was able to engage in the
industrial action which it had with the immunity offered by s 415” (at [90]).
7 Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union (2018) 281 IR 147, [2018] FWCFB 4120.
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc8826.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb4120.htm
[2022] FWC 493
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would cost the Victorian economy alone at the upper end of the range of $5-15m. If the
industrial action continues for the period of the Notices, the loss to the Victorian
economy is estimated to be in excess of $1.2b. These estimates are based on an estimated
loss to Esso of $4.7m per day and a loss to gas consumers involved in manufacturing
basic chemicals, glass and glass products, ceramic products, plaster and cement products
of a further $9m.”
[51] In Minister for Industrial Relations for the State of Victoria v AGL Loy Yang Pty Ltd &
Ors [2017] FWC 2533 Deputy President Clancy found protected industrial action that
compromised Victoria’s power supply did threaten to “cause significant damage to the
Australian economy or an important part of it, being at least the State of Victoria” (at [42]). His
Honour found:
“[41] The evidence establishes the fundamental importance and significance of AGL Loy
Yang’s Loy Yang A Power Station and Mine to Victoria’s power supply. The combined
generation of Loy Yang A and Loy Yang B, which is also supplied by the Mine,
regularly meets over 50% of Victoria’s power needs in Winter. The industrial action in
the ETU Notice and the AGL Notice would almost immediately impact the power supply
to Victoria and have implications for South Australia. Additionally, the reliability and
resilience of the Victorian system would be compromised. The fundamental importance
of the power supply to the operation of Victoria’s economy is self-evident. Businesses
rely on a secure energy supply, and the transportation system depends on reliable power.
The supply of power is vital to the operation of the hospital and broader healthcare
system, as was highlighted in the evidence of Dr Romanes and Mr Robinson.”
[52] In Re Sydney Trains8 Senior Deputy President Hamberger found that a 24-hour stoppage
of trains across the rail network, coupled with overtime bans over a longer period, threatened
to cause significant damage to the economy of Sydney:
“[46] This finding was supported by the NSW Treasury modelling that estimated that the
cost to the NSW economy would have been in the order of $90 million. I note that this
figure assumed no impact at all on the output of public sector workers, nor on the output
of private sector workers who do not usually travel to work by train, even though many
of them would have been affected by increased congestion on the roads. It also assumed
that the output of the majority of private sector workers who do normally travel by train
would have been unaffected. Moreover, the modelling only estimated the cost of the
threatened overtime bans until 31 January 2018, even though they were of an indefinite
nature. It is quite likely, in my opinion, that the cost to the economy, if the industrial
action had gone ahead, would have been significantly more than $90 million modelled
by Treasury. Such a loss of output would represent – in absolute terms – significant
economic damage.”
8 Re Sydney Trains (2018) 277 IR 389, [2018] FWC 632.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc632.htm
[2022] FWC 493
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[53] In Application by BP Refinery (Kwinana) Pty Ltd [2019] FWC 68 Deputy President
Binet found that the unavoidable and inevitable consequence of threatened protected industrial
action was a controlled shut-down of the BP Kwinana refinery (at [48]), which was the largest
oil refinery in Australia and the only oil refinery in Western Australia (at [9]), and that a
shutdown of the refinery would have a momentous effect on the Western Australian economy
(at [52]).
[54] One can see from the above authorities that consideration of the phrase “significant
damage to the Australian economy or an important part of it” travels far beyond the notion of
merely “significant damage”.
[55] The anchor term in s.424(1)(d) is “the Australian economy” – which directs the
Commission’s inquiry to whether there is a threat of damage to the whole Australian economy,
or to a significant part of the Australian economy, or not.
[56] The Commission must start with an economy-wide perspective. If necessary the inquiry
might then narrow to only a “part” of the economy. In the authorities cited above the
Commission considered the impact of protected industrial action nationally9, across whole
states10, whole major cities11 and across whole industries.12
[57] Even though bargaining representatives have standing to make applications under
s.424(1)(d)13, including standing to apply for orders terminating their own conduct14, the
individual interests of the bargaining parties are secondary considerations at best. So much can
be seen from the fact that relevant Commonwealth, State or Territory Ministers have standing
to make an application under s.424.
[58] In taking an economy-wide, state-wide or even industry-wide view the Commission
must nonetheless hold to the objects of the FW Act generally, including “achieving productivity
and fairness through an emphasis on enterprise level collective bargaining underpinned by
simple good faith bargaining obligations and clear rules governing industrial action” (s.3(f)).
9 Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations (2011) 214 IR 367, [2011] FWAFB 7444.
10 Minister for Industrial Relations for the State of Victoria v Australian Workers' Union & Ors [2016] FWC 8826, Minister
for Industrial Relations for the State of Victoria v AGL Loy Yang Pty Ltd & Ors [2017] FWC 2533 and Application by BP
Refinery (Kwinana) Pty Ltd [2019] FWC 68.
11 Sucrogen Australia Pty Ltd v The Australian Workers' Union and others [2010] FWA 6192 and Re Sydney Trains (2018)
277 IR 389, [2018] FWC 632.
12 Sucrogen Australia Pty Ltd v The Australian Workers' Union and others [2010] FWA 6192 and Re Minister for Tertiary
Education, Skills, Jobs and Workplace Relations (2011) 214 IR 367, [2011] FWAFB 7444.
13 Fair Work Act 2009, s.424(2)(b)(i).
14 Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, [2012] FCAFC 65 at [93]-[94]
and [173] and Schweppes Australia Pty Ltd v United Voice (2011) 214 IR 282 at 294, [2011] FWA 9329 at [57].
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc68.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7444.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc8826.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc68.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6192.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc632.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6192.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7444.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa9329.htm
[2022] FWC 493
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[59] In National Tertiary Education Industry Union v University of South Australia (2010)
194 IR 30, [2010] FWAFB 1014 at [7]-[8] the Full Bench said:
“Section 424 provides that Fair Work Australia (FWA) must make an order suspending
or terminating protected industrial action if it is satisfied that the action threatens to
endanger the life, the personal safety, health or welfare of the population or part of the
population or to cause significant damage to the Australian economy. The effect of
making an order suspending or terminating protected industrial action is to bring to an
end the right to take protected industrial action. This is achieved by the removal of the
protection or immunity which would otherwise attach to the action. The termination of
protected industrial action may also lead to FWA making a workplace determination
under Part 2-5 of the Act (see ss.266 and 267).
Within the scheme of the Act, the powers in relation to the suspension or termination of
protected industrial action are intended to be used in exceptional circumstances and
where significant harm is being caused by the action. This is clear from the Explanatory
Memorandum to the Fair Work Bill 2008:
“The Bill recognises that employees have a right to take protected industrial action
during bargaining. These measures recognise that, while protected industrial
action is legitimate during bargaining for an enterprise agreement, there may be
cases where the impact of that action on the parties or on third parties is so severe
that it is in the public interest, or even potentially the interests of those engaging
in the action, that the industrial action cease — at least temporarily.
It is not intended that these mechanisms be capable of being triggered where the
industrial action is merely causing an inconvenience. Nor is it intended that these
mechanisms be used generally to prevent legitimate protected industrial action
in the course of bargaining.” [paras. 1708-1709]”
[60] As the Full Bench in Construction, Forestry, Mining and Energy Union v Woodside
Burrup Pty Ltd15 (“Woodside Burrup”) observed “effective industrial action will almost
always cause harm to the employer’s business which, in turn, will frequently adversely affect
third parties being the customers, clients or other persons who depend upon the timely supply
of goods or services by that employer”.
[61] In Woodside Barrup the Full Bench undertook an extensive analysis of the “context of
the Act as a whole” (at [25]-[43]) and concluded:
“[44] When regard is had to context of the FW Act as a whole and to the explanatory
memorandum, the expression “significant harm” in s 426(3) should be construed as
having a meaning that refers to harm that has an importance or is of such consequence
that it is harm above and beyond the sort of loss, inconvenience or delay that is
commonly a consequence of industrial action. In this context, the word “significant”
indicates harm that is exceptional in its character or magnitude when viewed against the
sort of harm that might ordinarily be expected to flow from industrial action in a similar
15 (2010) 198 IR 360 at 374, [2010] FWAFB 6021 at [41], citing FH Transport Pty Ltd v Transport Workers’ Union of Australia
(1997) 75 FCR 480; (1997) 74 IR 236.
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb1014.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb6021.htm
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context. In this way, an order will only be available under s 426 in very rare cases, as
contemplated by the Explanatory Memorandum. It follows that it will not, of itself, be
sufficient that the harm, viewed in isolation, can be characterised as “substantial”.
Substantial harm to third parties is a common consequence of effective industrial action.
Unless the harm is out of the ordinary then suspension would contrary to the legislative
intention that suspension should not be able to used generally to prevent legitimate
protected industrial action in the course of bargaining. In assessing whether there is
“significant harm” context is also important. A particular quantum of financial loss may
constitute “significant harm” in one context but not in another.”
[62] The Full Bench were considering the phrase “significant harm” in s.426 rather than
“significant damage” in s.424, but in the course of their analysis did refer to the earlier Full
Bench decision in National Tertiary Education Industry Union v University of South Australia
[2010] FWAFB 1014, which was concerned with an application under s.424.
[63] In my view not all of the Full Bench’s approach to s.426 applications in Woodside
Burrup is readily transposable to s.424 applications. If the “harm that might ordinarily flow
from industrial action” or the “harm that is not out of the ordinary” nonetheless threatens to
cause significant damage to the Australian economy or a significant part of it, then s.424
requires the Commission to make an order. There is no consideration of whether it is
“appropriate” to do so (cf s.426(5)).
[64] The observations in Woodside Burrup are apposite to circumstances where the damage
caused by protected industrial action is likely to be large. Viewed in isolation, amounts
measured in tens or hundreds of millions are substantial. Viewed in the context of the wider
Australian economy and the context of the FW Act, such amounts may or may not be
“significant”.
[65] Predictions and estimations of likely damage might have to be considered in both
absolute and relative terms, depending on the circumstances and the available evidence. In most
of the cases referred to above the estimated damage, in monetary terms, was very large – in fact
multiples of $10M and even $100M. Damage might not be ‘significant’ even if it is large in
absolute terms, because it might be only a minute fraction of a much larger economy, state or
industry. Conversely, a large quantum of damage might nonetheless be seen as ‘significant
damage’ even if the damage is small in relative terms. Ultimately such assessments can only be
made on the material available.
[66] It is also helpful to recognise the very tight timeframe within which the Commission
must operate when determining applications under s.424. Section 424(3) requires the
Commission to determine each application “as far as practicable” within five days after it is
made.
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb1014.htm
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[67] In this regard the Commission’s role is vastly different to a judicial body assessing
[actual] damages. In almost all cases protected industrial action will cause damage. The
Commission does not need to precisely quantify the likely damage, but there must be some
proper basis upon which it can be satisfied that the damage would be significant (or not), over
and above generalised predictions.16 In assessing whether damage is “significant” the
Commission can make an assessment of the order of magnitude of the potential damage.17
Damage to the Australian economy or an important part of it – expert evidence
[68] Svitzer relies on a report prepared by Mr Gregory Houston of HoustonKemp, dated 16
February 2022, which addressed the following:
a) The importance to the Australian economy of seaborne trade and towages services in
the Affected Ports noting in particular that containerised and liquid and/or dry bulk trade
makes an important contribution to each state economy and to the overall Australian
economy. Towage services are an essential component of the economic infrastructure
that underpins a range of export and import activity.
b) That the economic impact of the notified protected industrial action at the Affected Ports
on the Australian economy, and/or an important part(s) of the Australian economy was
likely to be significant. An indicative quantification of the total (including multiplier)
effects associated with the Notified protected industrial action is up to in the order of
$458-589 million.
c) That there are a number of sectors of the Australian or State economies whose business
activities can reasonably be expected to lose a significant amount of value as a result of
delays arising from the Notified protected industrial action. In particular, the export coal
industry, meat export industry, retail industry, grain industry and liquid fuel import
industry are such sectors who could be expected to be disproportionately affected by the
industrial action.
[69] Mr Houston was an excellent expert witness in the sense that his report was
comprehensive and properly disclosed and referenced the evidence and materials upon which
it was based. In cross-examination Mr Houston was patient, careful, relied only on his specialist
expertise, and he addressed each matter asked of him in a way that made it abundantly clear
that his overarching purpose in giving evidence was to assist the Commission with its
deliberations.
16 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 208, (2000) 99 IR 309 at 317, [2000] HCA 47 at [28].
17 See by analogy Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd (2010) 198 IR 360 at 376-
377, [2010] FWAFB 6021 at [47].
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb6021.htm
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[70] Mr Houston estimated that the total loss arising from the stoppages was between $458-
589 million. Mr Houston provided this estimation by using the following methodology and key
assumptions:
(i) Each stoppage that was the subject of the AMOU’s notifications proceeded as
scheduled (including the stoppages scheduled to occur prior to the hearing of
Svitzer’s application);
(ii) The stoppages prevented all loading and unloading of vessels on the days in which
they occurred, although for the two Sydney ports an alternative towage service
provider could provide 60 per cent of the total towage service requirements for the
Sydney ports, leaving 40 per cent of total service requirement unmet (meaning that
in the Sydney ports the stoppages prevent 40% of ships from being loaded or
unloaded);
(iii) Port activities and movements would be affected for a further 5 days after each 48
hour stoppage (based on an assumption he was asked to make that on average each
port would take 5 days to return to normal after a 48 hour stoppage);
(iv) All of the trade activities that would otherwise take place in an affected port on a
day of stoppage would be delayed and therefore “disrupted”;
(v) On the days of a stoppage 5-10% of disrupted trade would be lost – meaning lost
output never to be recovered;
(vi) On each of the subsequent 5 days after a 48-hour stoppage 5% of disrupted trade
would also be lost;
(vii) If a stoppage took place shortly after another stoppage the loss would be worse
because of cascading delays, and the lost trade arising from the second stoppage
would increase by a 1.5X multiplier;
(viii) A further economic multiplier (1.9X) must be applied to the calculated loss to take
account of the interdependence between industries that make up an economy;
(ix) The amount of trade activity on any given day in each affected port can be estimated
by reference to historical data from a comparable season/period (in this case the
period from 1 January 2020 to 31 March 2020 for containerised freight and 1
September 2020 to 30 November 2020 for bulk freight);
(x) the average daily level of Gross State Product over the financial year ended 30 June
2020 is a reasonable estimate for the average daily rate over the relevant three-month
period to 31 March 2020.
[71] Mr Houston indicated that in economic terms the protected industrial action would cause
other damage to the economy, such as forcing participants to make substitute/inferior choices
(assuming, as economists do, that each participant in the economy otherwise makes optimal
choices) and the like. Mr Houston has not tried to estimate these other kinds of damage.
[72] Mr Houston was not asked to estimate loss that might have been caused by the other
workplace bans imposed by the AMOU or the 4-hour stoppages scheduled for Albany. There
is evidence of the operational impact of those bans for Svitzer but no evidence at all of any
likely damage to the economy.
[2022] FWC 493
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[73] The cornerstone of Mr Houston’s calculations is his assumption that 5-10% of disrupted
trade would be lost on each day of each stoppage, and that 5% of the trade disrupted on each of
the subsequent 5 days after a 48-hour stoppage would also be lost. In crude terms the 5% and
10% assumptions have been applied to very very large numbers (the value of daily trade) and
result in an estimate of a very large loss.
[74] In his report Mr Houston explained how he came to assume that 5-10% of the disrupted
goods are likely to be “lost”:
“130. The direct value of goods disrupted by industrial action that I estimate above is
not an estimate of the value lost completely, since many of the disrupted goods will
likely be delivered to their destination eventually, albeit after a delay. At one end of the
spectrum of possibilities, a delay may give rise to an inconvenience for an importer,
without necessarily translating into a permanent loss in output and sales that, in turn,
results in lost wages and profit. Businesses or consumers falling into this category are
likely to be those for whom the import supply chain is a modest or occasional component
of their enterprise.
131. At the other end of the spectrum are importers for whom containerised freight
supports complex production and distribution supply chains and/or where international
competitiveness demands cost efficiency, as arises from well-functioning, just in time
product processing. For these industries, the economic harm occasioned by delays in the
flow of inputs to the point of production carries a much greater risk of irrecoverable
damage.
132. I adopt a range of conservative assumptions in respect of the proportion of
disrupted containerised goods that are lost as a consequence of a two day strike in port,
ranging from five to ten per cent of disrupted goods.”
[75] Mr Houston was cross-examined extensively on these assumptions. He candidly
explained that the assumptions are not based on any objective data but are an estimate, using
his general expertise and his extensive knowledge of the industry, of what could be reasonable
to assume having regard to the effect of a delay on different sectors of the economy. As Mr
Houston said, some sectors will lose everything, some lose very little.
Damage to the Australian economy or an important part of it – Findings
[76] The 5-10% estimates are crucial to Mr Houston’s calculations. By Mr Houston’s
methodology each 48-hour stoppage causes the following loss:
1. 5-10% of a day’s trade for each of the two days of stoppage; plus
2. 5% of a day’s trade for each of the next five days after the stoppage.
[77] Each instance of loss is almost doubled again by the 1.9X economic multiplier applied
in Mr Houston’s calculations.
[2022] FWC 493
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[78] The 5-10% estimates do not rest on strong foundations. If these estimates of
irrecoverable loss are slightly too high, in percentage terms, the mathematical consequences are
enormous. For example, if Mr Houston’s estimate is halved – meaning the estimated loss on
the days of the stoppage is only 5% (being the lower percentage figure in his estimate range)
and the loss on subsequent days is 2.5%, then Mr Houston’s estimate at the top of the range is
out by $294,500,000.
[79] I am concerned to place a heavy reliance on the end-numbers contained in Mr Houston’s
calculations. In expressing this concern I am not critical of Mr Houston’s evidence at all. It is
an unremarkable feature of expert economic evidence that estimations and assumptions are
applied to large sums of money.
[80] There is no evidence to contradict or support Mr Houston’s estimate that 5-10% of trade
will be lost, and I am in no better position to provide an estimate than he is. In fact, in light of
Mr Houston’s experience and expertise, I am in a markedly inferior position to make such an
estimate.
[81] However, I am able to forensically assess whether Mr Houston’s estimate is a
sufficiently sound basis to determine Svitzer’s application under s.424. I do not have to
determine the actual value of the threatened losses in the same way that a judge might have to
calculate actual loss. From Mr Houston’s evidence I can comfortably assess the order of
magnitude of the potential damage.18
[82] The first matter to note in making my assessment is that Mr Houston’s calculations
include estimations of loss caused by stoppages that occurred prior to the hearing on 18
February 2022. It was not controversial at the hearing that an order under s.424 could only
apply prospectively. The Commission can only consider whether future protected industrial
action threatens to cause damage. That said, prior industrial action might affect the estimation
of damage that future industrial action might cause.
[83] Three 48-hour stoppages commenced prior to the hearing on 18 February 2022. The
losses estimated in Mr Houston’s report for these stoppages must be disregarded. I have not
attempted to calculate the value of those losses, suffice to say that Mr Houston’s calculation
assumes that members of the AMOU engage in nine separate 48-hour stoppages, which means
that up to one third of the total estimate must be disregarded.19
18 See by analogy Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd (2010) 198 IR 360 at 376-
377, [2010] FWAFB 6021 at [47].
19 The actual figure to be disregarded would not be as high as one third of the total estimates because Mr Houston applied a
multiplier to the calculated losses for some of the remaining stoppages because they were scheduled to closely follow
earlier stoppages.
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb6021.htm
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[84] Secondly, I am not satisfied that Mr Houston’s assumption that 5% of each day’s trade
is lost for five days after a stoppage is sound. It was not an assumption he was asked to make
and Svitzer’s evidence does not go so far as to support it. The evidence was that on average it
takes five days for port operations to return to normal after a 48-hour stoppage. Mr Houston
estimates that the loss on the fifth day after a stoppage (i.e. when port operations are almost
back to normal) is the same as the first day after the stoppage and, more importantly, in the
same range of loss estimated for each of the days of the stoppage itself. That is, even though he
estimates the loss on the days of a stoppage to be between 5% and 10%, if one were to accept
the lower end of the range as being reasonable, Mr Houston estimates exactly the same loss on
the first day of the stoppage as he does for the fifth day after the stoppage has finished.
[85] I can readily accept that loss will arise across the five days that port operations recover
after each stoppage, but I am again concerned to place significant weight on the assumption
that the loss on the later days after the stoppage is exactly the same as the days of the stoppage
itself.
[86] Taking into account all of the above matters I am prepared to accept that the proposed
stoppages scheduled to occur after 18 February 2022 were likely to cause damage of at least
$100M nationally between 18 February 2022 and the end of the last stoppage on 5 March 2022.
The damage, in economic terms being loss referred to by Mr Houston as “lost output never to
be recovered”, includes damage to the particular state economies in which the stoppages were
to occur of amounts proportionately less than $100M.
[87] I am satisfied that damage of this magnitude is significant damage in both relative and
absolute terms. I note that Mr Houston’s estimates were materially higher than $100M and I
am open to the likelihood that the actual damage could have been much more.
[88] Damage of at least $100M in two and a half weeks is a significant sum in absolute terms.
No more needs to be said of this.
[89] In relative terms, compared to the state economies in which the stoppages were to occur,
the likely damage was also significant. Mr Houston’s report included estimates of loss relative
to state GSP (gross state product) – differentiating between containerised goods and bulk goods
because of the different mix of work at each affected port. Mr Houston estimated that:
(a) a 48-hour stoppage in Port of Brisbane would cause loss of up to 1.19% of Queensland’s
GSP20;
(b) a 48-hour stoppage in Newcastle would cause a loss of up to 0.24% of NSW’s GSP21;
(c) a 48-hour stoppage in Port Botany would cause a loss of up to 0.52% of NSW’s GSP22;
and
(d) a 48-hour stoppage in Fremantle would cause a loss of up to 0.96% of Western
Australia’s GSP.23
20 Total loss for containerised goods up to 0.98% and for bulk goods up to 0.21%, GSP measured over a 7-day period.
21 Total loss for bulk goods up to 0.24%, GSP measured over a 7-day period.
22 Total loss for containerised goods of 0.46%, bulk goods up to 0.06%, GSP measured over a 7-day period and assuming that
60% of towage work during a stoppage in Sydney could be outsourced to another operator.
23 Total loss for containerised goods up to 0.72% and for bulk goods up to 0.19%, GSP measured over a 7-day period.
[2022] FWC 493
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[90] In determining that the likely damage is absolutely and relatively significant, I have also
taken into account the objects of the FW Act and the scheme within the Act to regulate protected
industrial action. The FW Act provides only limited grounds for the Commission to intervene
and remove the protection that is otherwise available under s.418.
[91] Acknowledging that protected industrial action is one of a limited number of suasions
available to parties to compel the other to agree24, and that effective industrial action will almost
always cause harm to the employer’s business and potentially cause harm to others25, the
damage that the scheduled 48-hour stoppages threaten to cause the affected state economies is
sufficiently significant that that I am required to make orders under s.424.
[92] It is important to recognise that these findings are particular to one type of protected
industrial action that is the subject of these proceedings: 48-hour stoppages that halt trade for
the period and disrupt trade for a further five days. There is no evidence at all that the 4-hour
stoppages in Albany or the bans on relief work in any port are likely to cause damage of any
similar magnitude.
Orders under s.424
[93] Having found that the 48-hour stoppages scheduled to occur after 18 February 2022
were likely to cause significant damage to the Australian economy or an important part of it, I
was required to make an order under s.424 to either suspend or terminate the protected industrial
action.
[94] It is very much a matter of discretion for the tribunal to suspend or terminate the
protected industrial action (so long as one option is chosen).26 Svitzer did not ask for orders
terminating the protected industrial action and in my view it is not appropriate to do so in any
event.
[95] The remaining matter of contention was the duration of the suspension order. Svitzer
submitted that the suspension order apply for a period of three months. The AMOU argued that
if an order be made, the order should only apply for a short period.
[96] In Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations (2011) 214
IR 367, [2011] FWAFB 7444 the Full Bench’s stated that their “primary consideration” was
the effect of the protected action on the wider aviation and tourism industries (at [15]), and they
thought they “should do what we can to avoid significant damage to the tourism industry” (at
[13]).
[97] In this matter the last of the 48-hour stoppages was scheduled to commence in Fremantle
on 3 March 2022. In doing what I can to avoid significant damage to important parts of the
Australian economy, I should ensure that the suspension order apply until at least the end of the
last scheduled stoppage.
24 Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, [2012] FCAFC 65 at [153].
25 Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd (2010) 198 IR 360 at 374, [2010] FWAFB
6021 at [41], citing FH Transport Pty Ltd v Transport Workers’ Union of Australia (1997) 75 FCR 480; (1997) 74 IR 236.
26 Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 at [92].
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7444.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb6021.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb6021.htm
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[98] One consequence of making an order under s.424 is that any other industrial action,
including action that does not threaten significant damage to the Australian economy, loses the
protection that s.418 otherwise provides (per s.413(7)).27 That is, making orders about one form
of industrial action may dramatically affect a bargaining party’s capacity to take other forms of
industrial action.
[99] Svitzer’s application is a case in point. Svitzer asked for orders that would have effect
far beyond protecting affected economies from damage caused by the 48-hour stoppages. In
practical terms, if the orders under s.424 operate for three months then the AMOU and its
members would not engage in relief bans or shorter stoppages because they would have no
protection under s.418 from the legal consequences of their actions.
[100] The FW Act allows for bargaining representatives, including opportunistic bargaining
representatives28, to apply for orders under s.424. Moreover, the FW Act even allows for
bargaining representatives to apply for orders suspending or terminating their own industrial
action.29
[101] On many occasions the Commission has formulated orders under s.424 by reference to
the history of bargaining between the parties and predictions or concerns about future
bargaining. That is, in formulating orders under s.424 the Commission has considered matters
well beyond the avoidance of the dangers described in s.424(1)(c) and well beyond the
prevention of the damage described in s.424(1)(d).
[102] The parties led evidence in relation to the history of bargaining for the proposed new
agreement however these matters were not sufficiently explored or ventilated at hearing to
allow me to make orders that could have significant consequences for future bargaining.
27 National Tertiary Education Industry Union v Monash University [2013] FWCFB 5982 at [54] and also National Tertiary
Education Industry Union v University of South Australia (2010) 194 IR 30, [2010] FWAFB 1014 at [13].
28 Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, [2012] FCAFC 65 at [157]
and [166].
29 Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, [2012] FCAFC 65 at [93]-[94]
and [173] and Schweppes Australia Pty Ltd v United Voice (2011) 214 IR 282 at 294, [2011] FWA 9329 at [57].
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb5982.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb1014.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa9329.htm
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[103] For all of the above reasons I decided to adopt the more cautious approach of making
orders to suspend protected industrial action only for the period over which 48-hour stoppages
were scheduled. I note in this regard that the consequences of the orders I made were similar to
the orders made by Commissioner Spencer in Sucrogen Australia Pty Ltd v The Australian
Workers' Union and others [2010] FWA 6192. Commissioner Spencer suspended protected
industrial action for a period of 4 weeks (at [1]) in order to provide a cooling off period, to
allow the growers to harvest their cane and the millers to progress the crush at an important
stage, and also to maintain “the leverage of the employees to then continue to take protected
industrial action” (at [46]).
DEPUTY PRESIDENT
Appearances:
Mr F Parry QC and Mr B Rauf of Counsel, for the Applicant
Mr E White of Counsel for The Australian Maritime Officers’ Union
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
February 18.
Printed by authority of the Commonwealth Government Printer
PR739052
F THE F WORK THE SEAL COMMISSION
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6192.htm
[2022] FWC 493
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ANNEXURE
Orders made on 18 February 2022
Fair Work Act 2009
s.424—Industrial action
Svitzer Australia Pty Ltd
(B2022/75)
DEPUTY PRESIDENT EASTON SYDNEY, 18 FEBRUARY 2022
Application to suspend or terminate protected industrial action - endangering life etc.
[1] Pursuant to s.424 of the Fair Work Act 2009 (Cth) (the Act), the following protected
industrial action by members of the Australian Maritime Officers’ Union (AMOU) employed
by Svitzer Australia Pty Ltd (Svitzer) is suspended until 6 March 2022:
a) A 48-hour stoppage of work commencing at 7.00am on 19 February 2022 in Kwinana;
b) A 48-hour stoppage of work commencing at 12.01am on 22 February 2022 in Port
Botany and Port Jackson;
c) A 48-hour stoppage of work commencing at 6.00am on 22 February 2022 in Brisbane;
d) A 48-hour stoppage of work commencing at 7.00am on 23 February 2022 in Kwinana.
e) A 24-hour stoppage of work commencing at 6.00am on 24 February 2022 in Brisbane;
f) A 48-hour stoppage of work commencing at 7.00am on 24 February 2022 in Fremantle;
and
g) A 48-hour stoppage of work commencing at 7.00am on 3 March 2022 in Fremantle.
[2] This order is binding on:
i. Svitzer Australia Pty Ltd (Svitzer);
ii. The Australian Maritime Officers’ Union (AMOU)
iii. All employees of Svitzer who are members of the AMOU and who are covered by the
Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016.
[3] This order comes into operation at 18:00 hours on the date of this order.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR738544
ORDER
