1
Fair Work Act 2009
s.424—Industrial action
Re Svitzer Australia Pty Limited
(B2022/1726)
VICE PRESIDENT HATCHER SYDNEY, 15 NOVEMBER 2022
Suspension or termination of protected industrial action – endangering life etc – acting on
Commission’s own initiative.
Background
[1] For more than three years, Svitzer Australia Pty Limited (Svitzer) has been bargaining
for a new enterprise agreement with three unions: the Australian Maritime Officers’ Union
(AMOU), the Maritime Union of Australia Divisions of the Construction, Forestry, Maritime,
Mining and Energy Union (MUA) and the Australian Institute of Marine and Power Engineers
(AIMPE).
[2] On 14 November 2022, Svitzer issued a media release stating that it had given notice to
all harbour towage employees covered under its 2016 National Towage Enterprise Agreement
and to the AMOU, MUA and AIMPE of a lockout that will take place from 12:00 pm AEDT,
Friday 18 November 2022, and will continue indefinitely.1 The media release states:
“…
This step is being taken in response to industrial action which has made it difficult for
Svitzer to run its operations.
This is harming Svitzer’s ability to reliably, safely and efficiently serve our shipping
customers and port operations around the country and is causing serious disruption to
the national supply chain which is reliant on shipping.
Protected industrial action
There have been more than 1100 instances of industrial action notified by the maritime
unions since October 2020. Since 20 October 2022, there have been more than 250
instances of protected industrial action alone, amounting to nearly 2000 hours of work
stoppages. There is new protected action being notified by the unions on an almost daily
basis.
1 Svitzer Australia Advises of Lockout for Harbour Towage crews, Monday 14 November 2022
[2022] FWC 3038
STATEMENT AND DIRECTIONS
AUSTRALIA FairWork Commission
https://svitzer.com.au/wp-content/uploads/221114-Media-Release_Svitzer-Australia-advises-lockout-of-harbour-towage-crews.pdf
[2022] FWC 3038
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With each instance of industrial action valuable imports and exports are delayed,
disrupted, or goods and produce lost.
Svitzer has had to respond to the protected industrial action as a matter of necessity with
one of the few avenues available to employers faced with such action.
When the lockout becomes effective, no shipping vessels will be towed in or out of 17
Australian ports otherwise serviced by Svitzer.
This will impact shipping operations at major metropolitan and regional Australian ports
nationwide in Queensland, New South Wales, South Australia and Western Australia.
…”
(emphasis added)
[3] Svitzer’s announcement has caused the Commission to consider making an order under
s.424 of the Fair Work Act 2009 (FW Act) on its own initiative to suspend or terminate
protected industrial action by Svitzer.
Relevant provisions
[4] Section 408(c) of the FW Act provides that “employer response action” for an enterprise
agreement is protected industrial action.
[5] Section 411 of the FW Act defines “employer response action” as:
411 Employer response action
Employer response action for a proposed enterprise agreement means industrial action
that:
(a) is organised or engaged in as a response to industrial action by:
(i) a bargaining representative of an employee who will be covered by the
agreement; or
(ii) an employee who will be covered by the agreement; and
(b) is organised or engaged in by an employer that will be covered by the agreement
against one or more employees that will be covered by the agreement; and
(c) meets the common requirements set out in Subdivision B.
[6] Division 6 of Part 3-3 of the FW Act sets out when the Commission may or must make
orders to terminate or suspend protected industrial action. Relevantly, ss.424(1) and (2) provide
(emphasis added):
424 FWC must suspend or terminate protected industrial action—endangering
life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial action for a
proposed enterprise agreement that:
[2022] FWC 3038
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(a) is being engaged in; or
(b) is threatened, impending or probable;
if the FWC is satisfied that the protected industrial action has threatened, is threatening,
or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or
of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(iia) if the industrial action is being engaged in, or is threatened, impending or
probable, in a State that is a referring State as defined in section 30B or 30L—
the Minister of the State who has responsibility for workplace relations matters
in the State;
(iib) if the industrial action is being engaged in, or is threatened, impending or
probable, in a Territory—the Minister of the Territory who has responsibility
for workplace relations matters in the Territory;
(iii) a person prescribed by the regulations.
[7] Subsections 424(3)-(5) are not extracted as they are not presently relevant.
[8] Pursuant to s.424(2)(a), the Commission has power of its own initiative to make an order
suspending or terminating protected industrial action under s.424(1). The Commission must
make such an order if the Commission is satisfied that the protected industrial action2 has
threatened, is threatening, or would threaten to cause significant damage to the Australian
economy or an important part of it.
Previous orders to stop protected industrial action
[9] On 14 February 2022, Svitzer applied to the Commission for orders to stop protected
industrial action under s.424 of the FW Act, in response to notices issued by the AMOU
advising that protected industrial action would take place at a number of ports from 17 February
2022 onwards. The protected industrial action comprised 48-hour stoppages at various port
locations between 17 February 2022 and 4 March 2022.
[10] On 18 February 2022, the Commission made orders under s.424 of the FW Act
suspending protected industrial action over the period during which the 48-hour stoppages were
scheduled because it was satisfied that the action threatened to cause significant damage to an
important part of the Australian economy.3 Reasons for this decision were issued on 4 March
2022.4 The Commission’s reasons included findings as to the actual damage caused or potential
damage to be caused by this industrial action. These findings give rise to a concern that the
2 Being current, or threatened, impending or probable industrial action.
3 PR738544
4 Svitzer Australia Pty Ltd v The Australian Maritime Officers’ Union [2022] FWC 493
[2022] FWC 3038
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protected industrial action recently announced by Svitzer may similarly threaten to cause
significant damage to the Australian economy or an important part of it.
Next steps
[11] This matter is listed for mention at 12.00pm (AEDT) on Wednesday, 16 November
2022 in Sydney.
[12] Interested parties are directed to notify the Commission if they wish to be heard by
10.00am (AEDT) on Wednesday, 16 November 2022 by email to
chambers.hatcher.vp@fwc.gov.au.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR747960
OF THE FAIR WORK COMMISSION THE
mailto:chambers.hatcher.vp@fwc.gov.au
