CSL Australia Pty Ltd v Maritime Union of Australia

BUCHANAN J: 1 This judgment deals with an application for urgent interlocutory relief to address the conduct of members of the crew of the MV "CSL Melbourne" who are refusing to leave that vessel. The facts recounted hereunder are taken from the evidence which was read or tendered in the proceedings for interlocutory relief. The affidavits which were read in support of the application for interlocutory relief were those of: Michael Beck affirmed on 1 February 2016; Emily Kate Pointon affirmed on 1 Feburary 2016 and 4 February 2016; Matthew James Howell affirmed 3 February 2016; and David Fethers affirmed on 4 February 2016. 2 For the purpose of the interlocutory proceedings, no objections were taken to the contents of any part of those affidavits or their annexures and none of the deponents was required for cross-examination. In addition, the applicant tendered a letter dated 3 February 2016 to the applicant from the Port of Newcastle Authority. 3 The CSL Melbourne is a bulk carrier vessel. It is registered in Bridgetown, Barbados, but it operates at present under a Transitional General Licence issued under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth). In accord with the conditions of the Transitional General Licence, it is fully crewed by Australian officers and ratings. 4 Until 31 December 2015, the applicant had a contract of affreightment with Rio Tinto Marine for the delivery of alumina from elsewhere in Australia to Newcastle. That contract was subject to the possibility of extension year by year by options to be exercised by 1 October 2015 and 1 October 2016 respectively but the option was not taken up and the contract accordingly terminated on 31 December 2015. 5 On 15 December 2015, agreement was reached with Pacific Aluminium Pty Ltd, which had replaced Rio Tinto Marine as the relevant agent, for two further shipments on the CSL Melbourne in January 2016. The second of those shipments concluded discharge of its cargo on 30 January 2016. 6 As, in the judgment of CSL, no viable work for the vessel remains on the Australian coast. It was scheduled to sail to Singapore on 30 January 2016 after discharge of its cargo. It will be replaced for the purpose of shipping alumina from the mines in question to Newcastle by smaller foreign crewed vessels. I infer that it is not anticipated that the CSL Melbourne will return to the Australian coastal trade at least in the reasonably near future. 7 The CSL Melbourne was crewed by two swings of 14 crew members on each swing. The crew comprised the following officers: a Master, a Chief Officer, a Second Officer, a Third Officer, a Chief Engineer, a First Engineer, a Second Engineer and a Third Engineer, and the following ratings: a Cook, a Chief Integrated Rating and four Integrated Ratings. The ratings are eligible to be members of the first respondent, and their employment is regulated by the V.Ships Australia Pty Ltd and Maritime Union of Australia Enterprise Agreement 2013 MV CSL Melbourne. 8 The second to sixth respondents in the present proceedings are the Chief Integrated Rating and four Integrated Ratings who were members of the crew of the CSL Melbourne as at 30 January 2016. 9 At approximately 6.15 pm on Saturday, 30 January 2016, the on board delegate of the first respondent notified the Master that the six ratings would not sail the vessel to Singapore. At approximately 8.15 pm that evening, those employees were directed to leave the vessel. 10 It does not seem to me at present that the direction was a direction given by the Master acting as such, but for present purposes, nothing will turn upon that reservation. The reason for the observation is that the evidence before me suggests that the Master was asked to and did read directions to the crew members which were conveyed to him by Mr Fethers, the Director, Technical and Fleet Operations of the applicant. Those directions included a direction to perform normal work, but if not, to leave the vessel. 11 The following day, each of the employees was provided with a letter dated 31 January 2016, signed by Sasha Holdsworth, Director, HR and Crewing, CSL Australia Pty Limited, requiring them to leave the vessel and saying in particular: As you are participating in industrial action, CSL does not require you to perform any other work and re-affirms the direction that you should immediately leave the vessel. 12 The evidence before me is that neither the directions read by the Master the previous evening, nor that direction were complied with. Five of the employees who originally refused to perform work remain on the vessel. The cook also refused to perform work but left the vessel on 31 January 2016 for medical reasons. 13 The evidence before me is that other crew are available to sail the vessel to Singapore, but that it is not viewed practicable to do so until the original crew have left the vessel. There is some hearsay material to suggest that the Master has some concerns about safety and operational matters should such a course be attempted. 14 The proceedings in this Court were commenced on 1 February 2016 and were made returnable before a judge on 2 February 2016. When they came before me on that day, I adjourned them to today to consider the question of interlocutory relief. 15 In the meantime, the Fair Work Commission ("FWC)" sat to consider an application by the applicant under s 418 of the Fair Work Act 2009 (Cth) ("FW Act") that industrial action by the relevant crew members stop or not occur. The application was granted and an order under s 418 of the FW Act was made by Deputy President Booth on 3 February 2016. It came into effect at 5 pm on that day and will cease to have effect at midnight on 3 March 2016. 16 The order suffers potentially from invalidity in some aspects. It is in a form which carries some of the defects identified by Jessup J in Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758, especially at [91] to [116]. Those potential defects or invalid aspects arise from the circumstance that the order made by the FWC is expressed in general terms and by simply repeating the definition of "industrial action" in s 19 of the FW Act except as to the following provision, where industrial action is stated to include: 3.2.4 a refusal by an employee to comply with a lawful and reasonable direction by the Master to depart the CSL Melbourne (the vessel). 17 The views reached by Jessup J are subject to an appeal in which judgment has been reserved. It is not necessary that I say any more about those matters here because I think there is no doubt that cl 3.2.4 does not suffer from the lack of specificity which concerned his Honour. It is, however, subject to a submission in the present proceedings that it does not refer to industrial action which falls within the operation of s 418 of the FW Act and that is a matter to which attention will need to be given in due course. 18 On the evidence which is before me, which has not been put in issue, copies of the order were conveyed to the five individual employees at the instruction of the Master of the vessel, who also gave the following oral instruction to them on 3 February 2016: As a Master of this ship I require you to cease unlawful industrial action as required by this order and leave the vessel at 17:00 today. 19 Shortly after that time, the Master confirmed to the applicant that the five "ex-crew members" refused to leave the ship at that time as requested. 20 It is convenient at this point to mention a circumstance which was referred to in submissions but which will ultimately play no further part in my consideration of the issue, namely, that the Master has discharged each of the five crew members from their articles relating to the particular vessel. There is no evidence before me as to the terms of those articles or the circumstances in which the crew members may have been discharged from them. What is not in dispute is that they remain in employment. What is also not in dispute, and to which I will refer a little later, is the Master's undoubted authority for the conduct of the vessel and his supervision of the conduct of all persons on the vessel from time to time. 21 The employment of each of the employees is subject to the enterprise agreement. The enterprise agreement was approved on 10 July 2013 and operated from 17 July 2013. Its nominal expiry date is 23 June 2017. Section 417 of the FW Act proscribes industrial action during the currency of the agreement. The agreement contains the following particular provisions: 2.2 SETTLEMENT OF DISPUTES Necessary steps will be taken to ensure that the following procedures apply in the event of any grievance or disputation. The parties to any dispute agree to strictly adhere to this disputes settlement procedure so that any dispute is promptly resolved in good faith without interruption to or stoppage of work. … 2.8 EMPLOYEE DUTIES - STANDARD OPERATING PROCEDURES … 2.8.2 Employees will carry out their work as directed to the best of their ability, skill, qualifications, experience and competence … 22 It does not appear to me to be seriously in issue that the refusal of duty by the (initially) six employees constituted industrial action which is proscribed by s 417 of the FW Act. There are some particular arguments which have been advanced by Mr Gibian concerning the character of their decision to refuse to leave the vessel with which I will need to deal, but it seems to me that upon that limited foundation alone, it may safely be said that the applicant has a distinctly arguable case for relief in relation to at least some aspects of the application which is before the Court. 23 At the commencement of proceedings this morning, I gave leave to amend that application. What will now be the second claim for relief is a declaration that the respondents (i.e. the Maritime Union of Australia and the individual employees) have contravened s 417 of the FW Act. As Mr Hatcher SC pointed out in his submissions, the claim for relief does not limit the way in which the foundation for those claims might be specifically pleaded, and it must be assumed that the orders for damages or for compensation which are also sought will relate in some relevant way to that and other alleged contraventions. That is relevant to later consideration of the utility of the proposed interlocutory relief. 24 Another aspect of the claims for relief is now the contention that the individual employees (the second to sixth respondents) have contravened s 421 of the FW Act by contravening the order under s 418 of the FW Act made on 3 February 2016. It is a defence to proceedings upon an order under s 418 that the industrial action to which the order relates is, or would be, protected industrial action (s 421(2)(b)). It is also a jurisdictional prerequisite to the making of an order under s 418 that it must appear to the FWC that industrial action is happening, threatened or being organised that is not, or would not be, protected industrial action. 25 It may be that the applicant will seek to argue in the final proceedings that an error by the FWC in the formation of its opinion that particular action was "industrial action" would not be fatal to proceedings in this Court under s 421. I do not need to say anything about that contention at present. It does relate, however, to submissions put by Mr Gibian for the respondents that the actions taken by the individual employees in refusing to leave the vessel are not industrial action as defined by s 19 of the FW Act and as referred to in s 418 of the FW Act. 26 Support for that argument proceeded by analogy with findings made in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 where Wilcox and Cooper JJ held that a similar definition of industrial action under the Workplace Relations Act 1996 (Cth) did not extend to the action of picketers which did not involve "limitations on the work of those imposing the ban" (see at [52]). 27 The argument may require close attention in a final hearing, but for a number of reasons I do not think it removes from consideration at the present time a conclusion that the applicant has made out an arguable case for relief. 28 First, for the reasons which I gave earlier, I think there is a clearly arguable case for relief under s 417 of the FW Act referrable to the refusal of duty by the individual employees. Secondly, interesting though Mr Gibian's argument is, I do not think it is sufficiently destructive that I should conclude at this stage that the applicant does not have an arguable case for relief arising from s 421 of the FW Act. There are other claims for relief which assert that secondary boycotts have taken place, but little evidentiary material is before the Court at this stage and I do not need to assess those claims for their arguability or their strength. 29 There is a claim for two declarations that the respondents have committed criminal offences. I have expressed reservations about the sustainability of such claims in the present proceedings and would place no weight upon them in the present judgment. 30 One is a claim that the second to sixth respondents (i.e. the employees) have contravened s 122 of the Navigation Act 2012 (Cth) by refusing to leave a vessel "after being asked to leave the vessel by or on behalf of the owner or master". As Mr Hatcher SC has pointed out, a contravention of that provision is a criminal offence. As I have said, I will put it to one side for the purpose of assessing the arguability of the proceedings for final relief. However, that does not mean that it will not be relevant to take into account when assessing the balance of convenience. 31 For the reasons I have given, I am satisfied that there is an arguable case for final relief at a final hearing of the present application. 32 The next matter which requires consideration is a submission by Mr Gibian which falls somewhere between the findings I have just made and a consideration of other aspects of the balance of convenience: that the interlocutory orders sought at present do not contribute appropriately to any claim for final relief. 33 I accept that the Court should, in an appropriate case, pay close regard to such a matter and that the discretion to award interlocutory injunctive relief is confined within the purposes for which such relief is enabled, namely, to contribute to consideration of final relief in due course. The principle was stated in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (No 3) (1998) 195 CLR 1 ("Patrick") at [35] in these terms: The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. … (Footnote omitted.) 34 The connection needed, however, is not some mechanical connection. It is sufficient if the Court comes to the view that the interlocutory relief sought will contribute in a meaningful way to the efficient disposition by the Court of the proceedings as a whole. 35 Although an injunction in the terms at present sought, namely, "that the Second to Sixth Respondents be ordered to immediately and peacefully disembark the CSL Melbourne at the Port of Newcastle" would, in practical terms, do all the work which the first claim for relief now states, that is not the only matter to take into account. I do not understand there to be any serious contest, apart from the suggested lack of sufficient connection with final relief, that the Court has power to grant an injunction in the terms sought. But the subject matter of that proposed injunction is not the only matter to which it might usefully contribute. Such a step would allow movement of the ship and would necessarily confine the costs which are being incurred by the applicant and by others. 36 I accept that it is legitimate and proper, in an appropriate case, to take into account commercial damage to third parties (see Patrick at [65]-[66]). It appears to me to be a matter of general concern extending beyond the interests of the immediate parties to this dispute that the operations of the Port of Newcastle are being disrupted, that other ships will be held up commencing from tomorrow and that damage may potentially be caused to those who are depending upon the operation of those other ships. Those factors invest the matter with a significance beyond the commercial damage being done only to the applicant. 37 In particular, the direction of the Port of Newcastle on 3 February 2016 that the vessel be moved by 8 am tomorrow morning is one to which I give weight. 38 I also give weight to the fact that the Master has now, and in his own right, given a direction to the employees concerned that they must leave the vessel. The position of the Master of a vessel and his responsibilities for the safety of the vessel and its proper conduct involve considerations which go well beyond the particular interests of parties to any industrial dispute. The importance of his role is recognised by s 122 of the Navigation Act and the fact that refusal of a direction to leave the vessel is rendered a criminal offence. 39 It seems to me that the balance of convenience and the general public interest favour dealing with the question of the presence of the employees upon the vessel rather than allowing that situation to continue unaddressed simply as part of an industrial contest between the parties. I do not intend to indicate any lack of sympathy with the position of the employees, the concern of the union, or any wider concern about the state of coastal shipping in Australia, or the fact that ships and jobs are being lost on the Australian coast at a substantial and, in some eyes, an alarming rate but that is not a matter with which the Court is dealing in the present proceedings. 40 In the circumstances, I am comfortably satisfied that the balance of convenience favours the grant of the injunction which has been sought. There will be orders in the terms sought by the applicant. Costs will be reserved. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

SCHEDULE OF PARTIES NSD 156 of 2016 Respondents Fourth Respondent: RODNEY DOWNS Fifth Respondent: STEPHEN LESLIE DUNN Sixth Respondent: DAVID MIERS