Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: FLICK J
• Judgment Date: 09 October 2019
• Neutral Citation: [2019] FCA 1647
• Date: 09 October 2019

FEDERAL COURT OF AUSTRALIA

Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1647

File number:	NSD 620 of 2018
Judge:	FLICK J
Date of judgment:	9 October 2019
Catchwords:	INDUSTRIAL LAW – statement of agreed facts – agreement as to form of declaratory relief and penalties – principles to be applied – whether agreed penalties within permissible range
Legislation:	Fair Work Act 2009 (Cth) ss 19, 417, 421, 546 Petroleum Retail Marketing Sites Act 1980 (Cth) s 10 Workplace Relations Act 1996 (Cth)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482 Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596, (2014) 318 ALR 22 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 4) [2017] FCA 580 Kelly v Fitzpatrick [2007] FCA 1080, (2007) 166 IR 14 Markarian v The Queen [2005] HCA 25, (2005) 215 ALR 213 Ministry for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72, (2004) ATPR 41-993 ; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170, (2008) 171 FCR 357 Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470, (2011) 280 ALR 503 Registered Organisations Commission v Mijatov [2018] FCA 939
Date of hearing:	3 & 12 June 2019
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	Mr Y Shariff
Solicitor for the Applicant:	Seyfarth Shaw Australia
Counsel for the Respondents:	Mr R Reitano
Solicitor for the Respondents:	Slater & Gordon Lawyers

ORDERS

		NSD 620 of 2018
BETWEEN:	PATRICK STEVEDORES HOLDINGS PTY LTD Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; PAUL MCALEER Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	9 OCTOBER 2019

THE COURT DECLARES THAT:

1. The First Respondent contravened s 417(1) of the Fair Work Act 2009 (Cth) by organising industrial action taken by employees of Patrick Stevedores Holdings Pty Ltd at Port Botany NSW in the form of a refusal to perform work on the day, evening and night shifts of 14 April 2018, and on the night shift ending on 16 April 2018, prior to the nominal expiry date of the Patrick Terminals Enterprise Agreement 2016.

2. The Second Respondent contravened s 417(1) of the Fair Work Act 2009 (Cth) by organising industrial action taken by employees of Patrick Stevedores Holdings Pty Ltd at Port Botany NSW in the form of a refusal to perform work on the day, evening and night shifts of 14 April 2018, and on the night shift ending on 16 April 2018, prior to the nominal expiry date of the Patrick Terminals Enterprise Agreement 2016.

THE COURT ORDERS THAT:

3. A pecuniary penalty of $30,000 is imposed on the First Respondent pursuant to s 546 of the Fair Work Act 2009 (Cth) in respect of the contravention referred to in the Declaration in paragraph 1 above.

4. A pecuniary penalty of $6,000 is imposed on the Second Respondent pursuant to s 546 of the Fair Work Act 2009 (Cth) in respect of the contravention referred to in the Declaration in paragraph 2 above.

5. The above penalties are to be paid to the Applicant in accordance with s 546(3) of the Fair Work Act 2009 (Cth) within 30 days of the date of this order.

6. The primary proceeding is otherwise dismissed.

7. The Cross-claim is dismissed.

8. There is no order as to costs in respect of either the primary proceeding or the Cross-claim.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1. The Applicant in the present proceeding, Patrick Stevedores Holdings Pty Ltd (“Patrick Stevedores”), commenced the proceeding in April 2018 by filing in this Court an Originating Application, together with a Statement of Claim.

2. The Respondents to the proceeding are the Construction, Forestry, Mining, Maritime and Energy Union (the “CFMMEU”) and Mr Paul McAleer. Mr McAleer is and was at all material times the Branch Secretary of the Sydney Branch of the CFMMEU’s Maritime Union of Australia Division.

3. An Amended Statement of Claim was filed in June 2018. Defences were also filed in June 2018. A Reply was filed in July 2018.

4. Patrick Stevedores is part of a corporate group that conducts a business of operating container stevedoring, including at a terminal at Port Botany in Sydney (the “Terminal”). The subject‑matter of the proceeding concerns a stoppage of work on 14, 15 and 16 April 2018. In summary, Patrick Stevedores originally contended that the CFMMEU and Mr McAleer contravened ss 417(1) and 421(1) of the Fair Work Act 2009 (Cth) (the “Fair Work Act”).

5. In very summary form, the Respondents by their Defences:

• denied having organised industrial action within the meaning s 19(1)(b) of the Fair Work Act, namely the Respondents denied having organised “a ban, limitation or restriction on the performance of work by an employee…”.

Further, the Respondents contended, in their Outline of Submissions, that the stoppage of work was not “industrial action” within the meaning of s 19 of the Fair Work Act because the action was excluded from that definition by reason of it either:

• being “based on a reasonable concern of the employee about an imminent risk to his or her health or safety” within the meaning of s 19(2)(c)(i) of the Fair Work Act; or

• being authorised (or agreed to) by Patrick Stevedores by reason of cl 4.10 of Pt B, Sch 4 of the Patrick Terminals Enterprise Agreement 2016 (the “Enterprise Agreement”).

The Respondents, in their Outline of Submissions, also contended there was no refusal to work as the “employees were available to perform other work”.

6. A Cross-claim was also filed in June 2018 by the CFMMEU seeking (inter alia) an order that Patrick Stevedores pay the salary not paid to the employees (named in the Schedule to the Cross-claim) during that period of time when work was not carried out on 14, 15 and 16 April 2018.

7. The hearing of those allegations was listed for a two week period commencing on 3 June 2019. On the afternoon of 2 June 2019, however, the Court was...