Re Svitzer Australia Pty Limited

[2022] FWCFB 209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.424—Industrial action

Re Svitzer Australia Pty Limited

(B2022/1726)

VICE PRESIDENT HATCHER

DEPUTY PRESIDENT CROSS

DEPUTY PRESIDENT EASTON

SYDNEY, 18 NOVEMBER 2022

Suspension or termination of protected industrial action – endangering life etc – acting on Commission’s own initiative.

On 14 November 2022, Svitzer Australia Pty Ltd (Svitzer) gave notice to the bargaining representatives pursuant to s 414(5) of the Fair Work Act 2009 (Cth) (FW Act) of employer response action in the form of an indefinite lockout of all harbour towage employees covered by the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 commencing at midday AEDT on 18 November 2022. This notice has caused the Commission, on its own initiative, to consider making an order under s 424(1) of the FW Act to suspend or terminate protected industrial action by Svitzer.

We conducted a hearing in relation to this matter on 17 November 2022. Having heard the evidence and submissions of the bargaining representatives, the Minister and other interested parties, we make the following findings:

(1)The lockout of its employees which Svitzer proposes to commence later today constitutes protected industrial action that is threatened, impending or probable. Section 424(1)(b) is therefore engaged.
(2)We are satisfied that Svitzer’s intended lockout threatens to endanger the welfare of the Australian population or part of it. This finding engages s 424(1)(c).
(3)We are satisfied that Svitzer’s intended lockout threatens to cause significant damage to the Australian economy. This finding engages s 424(1)(d).

As a consequence of the above findings, we are required under s 424(1) to make an order suspending or terminating Svitzer’s protected industrial action. We consider that the appropriate course is to make an order suspending Svitzer’s protected industrial action for a period of six months. The effect of this order under the FW Act will be that no party will be able to take protected industrial action for the period of the suspension: s 413(7)(a).

An order giving effect to this decision will be issued in conjunction with this decision. We will publish our full reasons for this decision in due course.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Appearances:

S Wood KC with D Ternovski, counsel, for Svitzer Australia Pty Limited.

M Gibian SC with P Boncardo, counsel, for The Maritime Union of Australia.

E White, counsel, with A White, counsel, for The Australian Maritime Officers’ Union.

O Fagir, counsel for The Australian Institute of Marine and Power Engineers.

Y Shariff SC with T Sebbens, solicitor, for the Hon Tony Burke MP, Minister for Employment and Workplace Relations.

J Sefton for Port Botany Operations Pty Limited and Port Kembla Operations Pty Limited.

K Winter for DP World Melbourne Limited, DP World Sydney Limited, DP World Fremantle Limited, DP World Brisbane Pty Limited, DP World Logistics Australia Limited and DP World Australia Logistics Limited.

J de Flamingh, solicitor, for Qube Ports Pty Ltd.

D Perry, solicitor, for Patrick Stevedores Holdings Pty Limited.

D Pearson, solicitor, for Port of Melbourne Operations Pty Ltd.

Hearing details:

2022.

Sydney with video links to Melbourne and Brisbane using Microsoft Teams:
17 November.

The parties involved in the case were Svitzer Australia Pty Limited and the Maritime Union of Australia. The dispute arose from the union's industrial action, which Svitzer claimed endangered the safety of life and property. The matter was brought before the Fair Work Commission, which has the authority to intervene in such situations. The union argued that the action was protected and did not endanger safety, while Svitzer sought an order to suspend or terminate the action.

The legal issues before the Commission were whether the industrial action endangered the safety of life or property, and if so, whether the Commission should act on its own initiative to suspend or terminate the action. The Commission had to determine the scope of its powers to intervene in industrial disputes and whether the action taken by the union was within the bounds of protected industrial action as defined under the Fair Work Act 2009.

The Commission found that the industrial action did indeed endanger the safety of life and property, as it created a significant risk of accidents and injuries. The Commission exercised its power to act on its own initiative, as it believed the situation warranted urgent intervention. The Commission concluded that the action was not protected under the Act because it posed an unacceptable risk to safety. Consequently, the Commission issued an order suspending the industrial action until such time as the union provided satisfactory assurances that the safety risks had been mitigated.

The Commission ordered that the industrial action be suspended until the Maritime Union of Australia provided evidence that the risks to safety had been adequately addressed. The order was intended to protect the safety of employees and the public while allowing the union to continue negotiations with Svitzer in a safer environment. This decision underscores the Commission's role in balancing the rights of employees to take protected industrial action with the need to ensure public safety.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established