Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [[2015] FWC 7898] of Commissioner Cambridge at Sydney on 17 November 2015 in matter number C2015/7314 – Permission to appeal – Whether grounds of appeal attract the public interest – Fair Work Act 2009, ss.418, 604.

Introduction

[1] This decision concerns an application for permission to appeal under s.604 of the Fair Work Act 2009 (the Act) against a decision of Commissioner Cambridge handed down on 17 November 2015. The decision of the Commissioner arose from an application made under s.418 of the Act for an order that alleged industrial action by The Maritime Union of Australia (MUA) and employees of ASP Ship Management Pty Ltd (ASP) who are members or eligible to become members of the MUA stop, not occur and not be organised.

[2] At the hearing of the matter on 21 November 2015 Mr S Crawshaw, SC, and Mr A Selvin of counsel appeared with Mr K Bolwell on behalf of the MUA. Mr R Millar of counsel appeared with Mr C Egan on behalf of ASP. At the conclusion of the hearing of the matter we announced our decision to refuse leave to appeal. We issued an order 1 dismissing the application for permission to appeal and discharging the stay order2 made by Deputy President Gooley on 19 November 2015. These are the reasons for our decision.

Decision under Appeal

[3] The industrial action that was the subject of the application before the Commissioner relates to employees of ASP who are members of the MUA and who were allegedly refusing to perform work as directed so as to enable the vessel named MV Portland to sail from Portland, Victoria, to Singapore.

[4] After hearing the matter, Commissioner Cambridge concluded as follows:

“[8] The Hearing proceeded accordingly, and the witness statement of Mr Jones was admitted and marked as Exhibit 1. Mr Jones was cross-examined on this material. The evidence that was produced during the Hearing has confirmed that the industrial action which is the subject of the application is happening. The industrial action that is occurring involves, inter alia, the refusal by employees to perform work as directed so as to enable the vessel MV Portland to sail to Singapore.

[9] In addition, the evidence has established that further industrial action of the same or similar nature to that which is happening, is threatened, impending, and probable. Further, based on the evidence provided during the Hearing, I am satisfied that the industrial action that is happening and that which is threatened, impending and probable, is being organised by the MUA.
 
[10] The industrial action that is happening and the industrial action which is threatened, impending and probable, is being organised by the MUA and it is not protected industrial action which meets the common requirements as established under s. 413 of the Act.

[11] The MUA has advanced inter alia, the proposition that the action taken in this instance was not industrial action as defined in s. 19 of the Act on the basis that the direction of the employer was not a reasonable or lawful direction. Further, it was asserted by the MUA that the relevant industrial instrument, the APS SHIP MANAGEMENT PTY LIMITED SEAGOING RATINGS ENTERPRISE AGREEMENT 2012 did not cover the work of the relevant MUA members in respect to the voyage of the MV Portland from Australia to Singapore.

[12] I have considered the basis upon which the application was opposed by the MUA. I do not believe that the direction of the employer was unreasonable such that in any way the industrial action could be construed to not satisfy the definition of industrial action contained in s. 19 of the Act. Further, I am unable to apprehend how any prospect that the relevant industrial instrument may not apply to the particular circumstances of the journey to Singapore could operate to validate unprotected industrial action.

[13] The existence of what may be considered to be a number of legitimate concerns 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 some clarification required about particular arrangements applicable to the performance of work.

[14] Although I may personally have great sympathy for the crew of the MV Portland, the predicament that these individuals face is a circumstance that is broadly shared by many other Australian workers. It is relevant to restate what I said earlier this year in relation to the crew of the Alexander Spirit. In this instance the name of the vessel has changed but the circumstances are fundamentally the same. The requirement to sail the MV Portland to Singapore can be likened with those vehicle manufacturing workers who will have to assemble the final Falcon, Commodore and Camry. The particular predicament of the crew of the MV Portland is not dissimilar to the circumstances faced by numerous Australian workers employed in industries which are struggling to remain competitive when exposed to global economic forces.

[15] Further, I acknowledge that there may be legitimate concerns about particular aspects of the journey to Singapore and the repatriation arrangements to Australia. These and any other concerns are matters which should be pursued via relevant approaches to the employer and in the absence of any industrial action. In the event that the concerns are not resolved then relevant applications to this Commission would be appropriately made, once again, in the absence of any industrial action. These concerns, legitimate as they may be, cannot validate the taking of unprotected industrial action.

[16] Consequently, the industrial action in this instance satisfies the definition of industrial action and it is not protected industrial action.

[17] Therefore, pursuant to s.418 of the Act, the Commission must Order that the industrial action stop.

[18] The Orders [PR574026] as broadly sought by ASP are made and issued separately.”

Grounds of Appeal

[5] The grounds of appeal advanced by the MUA are as follows:

“1. The Commissioner erred in finding that the refusal of employees to perform work so as to enable the vessel M.V. Portland to sail to Singapore was industrial action.

2. The Commissioner erred in finding that industrial action was being organised by the MUA.

3. The Commissioner erred in finding that the direction of the respondent to sail the M.V. Portland to Singapore for hand over to the new owner was a lawful direction.

4. The Commissioner erred in finding that the direction of the respondent to sail the M.V. Portland to Singapore for hand over to the new owner was a reasonable direction.

5. The Commissioner did not afford the appellant natural justice by failing to allow it to bring evidence about the reasonableness of the direction.

6. Such other grounds as the Commission sees fit.”

[6] The MUA submits that it is in the public interest for the Commission to grant permission to appeal as the appeal raises issues going to the jurisdiction of the Commission and the decision at first instance manifests an injustice and is attended with sufficient doubt to warrant its reconsideration.

[7] ASP submits that permission to appeal should be refused for the following reasons:

• no error has been shown which is susceptible to appeal



• the legislative scheme would be frustrated by allowing an appeal to be pursued—an appeal is a mechanism by which the short time lines contemplated by s.420 may effectively be frustrated, and



• the dispute is one inter partes, confirmed to the facts of the present case, not attracting the public interest in the requisite sense for an appeal to be permitted.

The Nature of the Appeal

[7] The Full Bench in MUA v Patrick Stevedores Holdings Pty Limited 3 held that the nature of appeal against an order under s.418 of the Act requires the establishment of a House v The King4 error. The Bench said:

“[11] Because the jurisdictional fact requirement in s.418(1) is founded upon the Commission member's perception about the specified matters, and involves to a significant degree an evaluative assessment with a degree of subjectivity (including determining whether particular types of conduct constitute industrial action as defined, and whether industrial action is "threatened, impending or probable"), the decision-making process under the subsection can be characterised as discretionary in the sense discussed in Coal and Allied. Accordingly we consider that in this appeal we should not interfere with the findings concerning the s.418(1) jurisdictional prerequisites in the Decision unless House v The King error is identified.”

[8] Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 5 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:6

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Permission to Appeal

[9] Permission to appeal may be granted if there is sufficient doubt to warrant reconsideration of a decision or an injustice may result if permission is not granted. 7 If the Commission considers that it is in the public interest to grant permission to appeal, it is required to grant permission.8

[10] The first issue agitated by the grounds of appeal is that the refusal of the crew of the vessel to sail to Singapore was outside the scope of the employment and therefore did not constitute industrial action. The scope of the employment is said to be narrowed by the incorporation of the ASP Ship Management Pty Limited Seagoing Ratings Enterprise Agreement 2012 into the contracts of employment of the employees concerned.

[11] There are several flaws in this argument. First, it is not established that the incorporation of the enterprise agreement into contracts of employment limits the scope of work that can be required to be performed under the contract. There was no submission that the contract of employment otherwise restricted the geographic location of the performance of work. Secondly, it is not established that the enterprise agreement limits work that can be required to be performed by employees covered by it. Thirdly, it is not established that the enterprise agreement applies only to work in the Australian coastal trade. Fourthly, it is not established that serving on the vessel on its voyage to Singapore is outside the ordinary notion of that trade. Fifthly, it is not established that the enterprise agreement applies in terms to all of the employees engaged on the vessel. We are not satisfied that there is any substance to this ground of appeal.

[12] The second contention is that the direction to sail to Singapore is not a reasonable direction because the employees were allegedly not told what passage the vessel would take, the length of stay in Singapore, the accommodation arrangements or the repatriation arrangements. These matters are either dealt with in the enterprise agreement and communications from the employer or are capable of being clarified in the course of the voyage. Any uncertainty regarding these matters does not render the direction to embark on the voyage unreasonable.

[13] The third contention concerns the involvement of the MUA. This is essentially a question of fact based on the evidence before the Commissioner. The Commissioner formed the view on the evidence that the MUA was involved in organising the industrial action. We do not consider that the evidence was insufficient to make the finding that he did. It is not established that his finding was in error.

[14] The final issue concerns an allegation that in declining to grant an adjournment sought by the MUA, the Commissioner denied the MUA procedural fairness. The critical question is what procedural fairness required in the circumstances of this matter, the answer to which depends on a number of considerations including the statutory context, the particular circumstances of the proceeding and the grounds for making the application for an adjournment. 9  The legislative scheme contained in Division 4 of Part 3-3 of the Act, seeks to balance the need for expedition in cases of unprotected industrial action because of its capacity to cause damage against the need to afford a reasonable opportunity to a party in relation to whom an order might be made, to present a case in opposition to the order sought.10

[15] The chronology of events demonstrates the flaws in the MUA’s argument. The ship was scheduled to sail on Saturday 14 November 2015. It did not sail because of the refusal of MUA members to embark on the voyage. An application was made to the Commission late on 14 November 2015. Section 420 of the Act requires applications of this nature to be determined, as far as practical, within two days of the application being made. The matter was listed for hearing at 2:00pm on 17 November 2015.

[16] The arguments sought to be advanced by the MUA concerned the reasonableness and lawfulness of the direction to sail the vessel. This was the positive case that the MUA sought to advance in opposition to the orders sought, and in our view it had sufficient notice and time to do so. There was nothing to prevent the MUA presenting witnesses to advance its case on the matters it sought to agitate.

[17] In addition, counsel for the MUA objected to various parts of a witness statement sought to be tendered into evidence on the grounds of hearsay and an inability to obtain instructions. The limited weight of the hearsay evidence sought to be adduced, and about which the need to obtain instructions was said to arise, was acknowledged by the Commissioner with a clear indication that that evidence will be given very limited weight.

[18] In addition to a 30 minute adjournment shortly after the case commenced, a further short adjournment was granted prior to the commencement of cross-examination. Moreover, there was sufficient time between the making of the application (on 14 November 2015) and the hearing (2:00pm on 17 November 2015) for the MUA to have obtained sufficient instructions from relevant officials who were involved in the dispute about their involvement as it was clear on the face of the application that orders were sought, inter alia, against the MUA, its officers, and its delegates at the workplace. In the circumstances we do not consider that the refusal to grant a longer adjournment constituted a denial of natural justice.

[19] As none of the grounds of appeal appear to us to have substance it is not appropriate that we grant permission to appeal.

[20] For these reasons we dismissed the application for permission to appeal and discharged the stay order made on 19 November 2015.

VICE PRESIDENT

Appearances:

Mr S Crawhaw, SC and Mr A Slevin of counsel appeared with Mr K Bolwell for The Maritime Union of Australia.

Mr R Millar of counsel appeared with Mr C Egan, solicitor for ASP Ship Management Pty Ltd.

Hearing details:

2015.

Melbourne.

November 21.

Final written submissions:

The Maritime Union of Australia on 20 November 2015.

ASP Ship Management Pty Ltd on 20 November 2015.

 1   PR574240.

 2   PR574155.

 3   [2013] FWCFB 7736.

 4   House v The King (1936) 55 CLR 499.

 5   House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

 6   Ibid.

 7   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.

 8   Fair Work Act 2009, s.604.

 9   Allen and Ors v Fluor Construction Service Pty Ltd [2014] FWCFB 174 at [23] and the authorities noted at footnote 17 therein.

 10   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd, [2013] FCAFC 148 in particular at [133]-[137].

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