FEDERAL COURT OF AUSTRALIA ASP Ship Management Pty Ltd v Maritime Union of Australia [2015] FCA 1486 Citation: ASP Ship Management Pty Ltd v Maritime Union of Australia [2015] FCA 1486 Parties: ASP SHIP MANAGEMENT PTY LTD v MARITIME UNION OF AUSTRALIA, ALLAN KELMAN, MARK JONES, DALE EATON, CRAIG GANIM, LIAM CONAGHAN, ZAC KINZETT, BRETT KOLPIN, WARREN HOPKINS, MICHAEL DONAGHY, RONALD BULLOCK, JAMES LAWRENCE, KRISTIAN HARRIS and GLYN CARSWELL File number: VID 836 of 2015 Judge: NORTH J Date of judgment: 8 December 2015 Catchwords: INDUSTRIAL LAW – interlocutory injunctive relief under s 421(3) of the Fair Work Act 2009 (Cth) – restraining continuation of industrial action – refusal to follow lawful and reasonable direction to depart berth and sail to Singapore – refusal to undertake all work necessary for departure Legislation: Fair Work Act 2009 (Cth) ss 19(1), 418, 421(3) Date of hearing: 8 December 2015 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 5 Counsel for the Applicant: Mr R Millar Solicitor for the Applicant: HWL Ebsworth Counsel for the Respondents: Mr M Harding Solicitor for the Respondents: Maurice Blackburn IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 836 of 2015 BETWEEN: ASP SHIP MANAGEMENT PTY LTD Applicant AND: MARITIME UNION OF AUSTRALIA First Respondent ALLAN KELMAN Second Respondent MARK JONES Third Respondent DALE EATON Fourth Respondent CRAIG GANIM Fifth Respondent LIAM CONAGHAN Sixth Respondent ZAC KINZETT Seventh Respondent BRETT KOLPIN Eighth Respondent WARREN HOPKINS Ninth Respondent MICHAEL DONAGHY Tenth Respondent RONALD BULLOCK Eleventh Respondent JAMES LAWRENCE Twelfth Respondent KRISTIAN HARRIS Thirteenth Respondent GLYN CARSWELL Fourteenth Respondent JUDGE: NORTH J DATE OF ORDER: 8 DECEMBER 2015 WHERE MADE: MELBOURNE UPON THE APPLICANT, BY ITS COUNSEL, UNDERTAKING: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as the Court may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order made hereunder or any continuation, with or without variation, thereof; and (b) to pay the compensation referred to in (a) above to the person there referred to; THE COURT ORDERS THAT: 1. Until further order, the fourth, sixth, seventh and eighth respondents are restrained from engaging in industrial action. 2. Industrial action is defined as refusing or failing to follow a lawful and reasonable direction from the Applicant, for the MV Portland to depart its berth at the Port of Portland and to be sailed to Singapore or such other destination as is specified by the Applicant, and to undertake all work necessary for that departure. 3. The matter be otherwise adjourned to 10.15am on 3 February 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 836 of 2015 BETWEEN: ASP SHIP MANAGEMENT PTY LTD Applicant AND: MARITIME UNION OF AUSTRALIA First Respondent ALLAN KELMAN Second Respondent MARK JONES Third Respondent DALE EATON Fourth Respondent CRAIG GANIM Fifth Respondent LIAM CONAGHAN Sixth Respondent ZAC KINZETT Seventh Respondent BRETT KOLPIN Eighth Respondent WARREN HOPKINS Ninth Respondent MICHAEL DONAGHY Tenth Respondent RONALD BULLOCK Eleventh Respondent JAMES LAWRENCE Twelfth Respondent KRISTIAN HARRIS Thirteenth Respondent GLYN CARSWELL Fourteenth Respondent JUDGE: NORTH J DATE: 8 DECEMBER 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, ASP Ship Management Proprietary Limited, provides the crews for the MV Portland. The MV Portland is programmed to leave the Port of Portland to be sailed to Singapore. A dispute has arisen concerning the movement of the ship to Singapore. That dispute concerns the sale of the ship in Singapore and the consequent ending of employment for the crews previously engaged on the ship. 2 The crews have, in recent times, refused to sail the MV Portland, and in consequence, the Fair Work Commission made an order on 17 November 2015, under s 418 of the Fair Work Act 2009 (Cth) (the Act), requiring them to cease industrial action. The particular industrial action is defined in s 19(1)(b) as a ban, limitation or restriction on the performance of work. Despite the order of the Commission, the ship has still not sailed. 3 Consequently, the applicant has brought a proceeding in this Court for an injunction under s 421(3) of the Act. It contends that the Court should be satisfied that, for the purposes of today, four members of the crew have contravened a term of the order. 4 Those four crew members are the fourth, sixth, seventh and eighth respondents. They are presently on board the ship. Although the proceeding has been initiated against thirteen crew members, orders against the fourth, sixth, seventh and eighth respondents would allow the ship to sail. There is evidence before the Court that those four respondents have, within the last 24 hours, refused a direction to cooperate in sailing the ship from Portland to Singapore. Consequently, the basis for an injunction under s 421(3) of the Act is made out. There is evidence before the Court that those four respondents were personally served with the originating application and were notified of the hearing of the interlocutory injunction and its adjournment. They have not attended the hearing on either occasion. 5 Consequently, the Court will order, under s 421(3)(b) of the Act, that the fourth, sixth, seventh and eighth respondents immediately cease their industrial action. Industrial action will be defined in the orders, to ensure that the four respondents understand that they are now not entitled to refuse to man the ship for the purpose of it leaving to sail to Singapore. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 22 December 2015