s.424 - Industrial action

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

• [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.

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.

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.

• [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.

• [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:

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:

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.

(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;

• [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 action[2] 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 protected industrial action recently announced by Svitzer may similarly threaten to cause significant damage to the Australian economy or an important part of it.

• [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.

[1] Svitzer Australia Advises of Lockout for Harbour Towage crews, Monday 14 November 2022

[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

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