Written by Workforce editor David Marin-Guzman
In what has been described as a “game-changing” move, the Fair Work Ombudsman (FWO) is seeking penalties and compensation orders against seven shipping crew members over their 20-day sit-in last year after they discovered they were going to be made redundant.
It is the first time the regulator has targeted individual employees for taking unprotected industrial action.
FWO documents filed in the Federal Circuit Court (FCC) last month allege the Maritime Union of Australia (MUA) and seven crew members of the Tandara Spirit breached the Fair Work Act when they refused to let the oil tanker depart from Melbourne, despite Fair Work Commission (FWC) orders.
On November 6, 2014, the 36 Tandara Spirit crew were told the voyage from Melbourne to Singapore would be their last after petroleum company Viva Energy told contractor Teekay its charter of the ship would expire in January 2015. Viva directed the crew to sail to Singapore to return the ship to its owners (WF 28/11/14).
On being told the news, several employees refused to follow Teekay’s direction to fuel the vessel in preparation for the voyage to Singapore, sparking a three-week occupation of the ship that received significant media attention.
Crew members called for consultation over the redundancies and their future, linking their protest to the broader loss of Australian jobs in the maritime industry and the increasing reliance on foreign fuel imports.
“This is just the start, Australians have got to wake up and see what’s happening,” crew member Kevin Miller told Channel 10’s The Project at the time.
The crew ended their action on Nov 26 – 12 days after a FWC stop industrial action order – with the workers saying it had put them “under extreme stress” and they wanted to avoid Teekay’s threats of “destructive legal action against us”.
The Tandara Spirit eventually set sail and Teekay did not pursue any legal action.
However, crew member Karl Williams told Independent Senator Jacqui Lambie this week that on his return home from the voyage he received emails from the FWO and last week the agency served him papers taking him to court. Williams now works as a taxi driver after 30 years in the maritime industry.
“I blame the govt for taking away my livelihood and my job – and now they’re threatening me with legal action and a $10,200 fine,” Williams said.
MUA says going after citizens a ‘game changer’
MUA national assistant secretary Ian Bray accused the FWO of “trying to establish a game-changing scenario” that would “shackle” workers’ responses.
“It’s a game changer in that it is going after citizens for rightly or wrongly protesting over the loss of their jobs,” Bray told Workforce.
He blasted the FWO legal action as a “reward for being made unemployed”.
The last time FWO took legal action over unprotected industrial action was in 2010 when it went after the Transport Workers Union (TWU) and one of its officials over workers taking industrial action in response to the dismissal of a co-worker.
That case was only the second time FWO had taken such action, with the first in 2009. It was also against the TWU and its officials but over a Qantas baggage handlers’ strike in response to outsourcing concerns.
The FWO’s move to target individual employees follows similar Fair Work Building and Construction (FWBC) actions since 2013 in which it has sought fines against hundreds of individual construction workers who take part in unprotected industrial action (WF 20/09/13) (WF 6/06/14) (WF 12/09/14).
FWC orders ‘fundamental’ to IR system: FWO
FWO Natalie James (above) said the agency decided to take legal action over the Tandara Spirit sit-in because “enforcing compliance with FWC orders is fundamental to maintaining the integrity of Australia’s system of industrial laws”.
A FWO spokesperson confirmed to Workforce taking the legal action was “on its own initiative”.
The agency is seeking orders for the MUA and the workers to pay compensation to Teekay, however it is yet to make submissions on the amount. The individual workers face a maximum $10,200 fine for each contravention. A hearing is listed for July 13 before FCC Judge Grant Reithmuller.
Last year, following FWO action, a gym was fined almost $41k for failing to comply with a FWC order to pay compensation to an unfairly dismissed employee. The gym’s director was fined $6,426 (WF 26/09/14).
FWO action puts pressure on Alexander Spirit workers
The FWO action coincides with 15 crew members of the Alexander Spirit this week refusing to set sail from Tasmania to Singapore after Teekay notified them they were to be retrenched.
The redundancies were the result of Caltex saying it no longer needed to transport fuel between domestic shipping routes.
However, Caltex has refused to guarantee the ship would return with an Australian crew and the MUA has accused the company of seeking to take on “cheap foreign seafarers, some of who[m] are paid as little as $2 an hour” (WF 7/07/15).
On Tuesday (July 7) the FWC issued orders for the workers to stop unprotected industrial action. The MUA has appealed the ruling, with an urgent full bench hearing being held today (WF 8/07/15). Meanwhile, the sit-in continues.
In his interview with Lambie discussing the FWO’s action against Tandara Spirit workers, Williams said: “My fear is … I’m pretty sure this is what’s going to happen to the guys on board the Alexander Spirit.”
The MUA’s Bray told Workforce the FWO had been directly calling individual Alexander Spirit crew members after FWC’s order. He said workers had already been “feeling the strain mentally” but now “they’ve also been harassed by the FWO’s office despite no breach of the law”.
MUA files FOI to ‘shine spotlight’ on FWO
Bray accused the FWO of not acting impartially. He claimed the Alexander Spirit crew had not breached FWC orders because Teekay had repeatedly pushed back instructions to set sail, with the latest sailing time at 6pm, Saturday.
He questioned how the FWO had got the workers’ phone numbers and, along with Unions Tasmania, asked whether employment minister Senator Eric Abetz has “got his hands all over this?”
The MUA has filed a Freedom of Information request for all correspondence between FWO and Teekay relating to the Alexander Spirit. “We’re taking this very seriously,” Bray said. “There needs to be a very bright light shined on the FWO office.”
Abetz has denied any involvement in either the FWO’s Tandara Spirit action or the calls to the Alexander Spirit workers.
“The union knows that the FWO is an independent statuary authority and is not under the direction of the minister,” Abetz said.
“To suggest I have instructed the FWO in this matter highlights the depths to which Unions Tasmania will go to distract attention away from their loss in the FWC.”
A FWO spokesperson confirmed the agency had “contacted the named individual crew to confirm they had received a copy of the orders and to ensure they understood their obligations and rights under workplace relations laws in relation to the orders”.
“The action was taken by the FWO of its own volition as part of the agency’s role in taking proactive action to facilitate compliance with workplace relations laws and educating workers and employers about workplace relations laws.”
(This story first ran in Workforce, 10 July 2015)
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