FEDERAL COURT OF AUSTRALIA

Woodside Petroleum (WA Oil) Pty Ltd v The Australian Institute of Marine and Power Engineers [2005] FCA 403

Workplace Relations Act 1996 (Cth) ss 170NC, 170NG

WOODSIDE PETROLEUM (WA OIL) PTY LTD v THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS

WAD 79 of 2005

NICHOLSON J

8 APRIL 2005

PERTH

THE COURT ORDERS THAT:

1.         Pursuant to sections 170NC and 170NG of the Act:

The Respondent (whether by its officers, delegates, agents, employees or howsoever otherwise) shall be restrained from directing, inducing, encouraging or authorising any member of the Respondent employed by the Applicant in work at the FSPO ‘Cossack Pioneer’ facility (‘the Facility’) regulated by the Woodside Petroleum (WA Oil) Pty Ltd/AIMPE Cossack Pioneer Certified Agreement (2001) (‘the Certified Agreement’) to fail to attend for work or to refuse to work at the Facility between 6.00 am, 9 April 2005 (WST) to 6.00 am, 10 April 2005 (WST) in accordance with the terms and conditions of the Certified Agreement with intent to coerce the Applicant to agree to make an agreement with the Respondent under Division 2 or 3 of Part VIB of the Act.

2.         Other Orders – the Respondent:

By no later than 9.00 pm on 8 April 2005 the Applicant or the Respondent must give a copy of, or read, order no.1 above to each of the employees affected by these Orders, andpost a copy of these orders on the mess room notice board at the facility.

3.         Service

Service of these Orders on the Respondent as required by Order 37 Rule 2 of the Federal Court Rules is dispensed with and, instead, service of this Order on the Respondent is permitted in the following manner:

(i)         handing an original or copy of the Orders to; or

(ii)        forwarding by facsimile transmission (facsimile number (02) 9319 7505) a copy of the Orders to; or

(iii)        forwarding by email transmission (email: aimpe@ozemail.com.au) an electronic copy of the Orders to:

(I)        Mr Henning Christiansen, Federal Secretary of the Respondent; or

(II)       A person who appears to be over the age of 15 years at the Orders at the WA Branch of the Respondent located at 28 Mout Street, Fremantle, WA 6160 or forwarding a copy by facsimile transmission to the WA Branch of the Respondent, facsimile number (08) 9430 4732.

(4)        Pursuant to Order 7 Rule 10 the Application, Notice of Motion, supporting affidavit of DonaldFraser and affidavit of urgency (‘the Originating Documents’) be taken to have been served on the Respondent where copies of the Originating Documents have been:

(a)        left for the Respondent at 52 Buckingham Street, Surry Hills, New South Wales 2010 with a person apparently over the age of 15 years; or

(b)        forwarded by facsimile transmission (facsimile number (02) 9319 7505) to Mr Henning Christiansen, Federal Secretary of the Respondent at facsimile number, (02) 9319 7505, or by email to Mr Henning Christiansen, Federal Secretary of the Respondent at aimpe@ozemail.com.au.

(5)        Pursuant to Order 4 Rule 11 and/or Order 19 Rule 3, the time for service of the Notice of Motion be abridged so far as is necessary to enable the motion of which notice is hereby given to be heard on 8 April 2005.

(6)        Liberty to the parties to apply on such notice as a judge shall allow to discharge or vary this Order.

(7)        The application be set down for directions on 12 April 2005 at 9.00 am.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant has brought to the Court an application for injunctive and declaratory relief in relation to matters arising under the Workplace Relations Act 1996 (Cth) (‘the Act’).  In the application, interlocutory relief is also sought and these reasons relate to the application in that respect, all other aspects not yet having been argued before the Court.

2                     The position is that despite every endeavour, the respondent has not been served in a way which has resulted in their attendance at the hearing of the interlocutory application.  The application has therefore proceeded on an ex parte basis. 

3                     The interlocutory relief is sought in reliance on s 170NC and s 170NG of the Act.  It seeks to restrain the respondent and any member of the respondent employed by the applicant in work at the FSPO ‘Cossack Pioneer’ facility regulated by the Woodside Petroleum (WA Oil) Pty Ltd/AIMPE Cossack Pioneer Certified Agreement (2001) (‘the certified agreement’) from failing to attend for work or from refusing to work at the facility between 6 am on 9 April 2005 (WST) to 6 am on 10 April 2005 (WST), in accordance with the terms and conditions of the certified agreement with intent to coerce the applicant to agree to make an agreement with the respondent under Div 2 or Div 3 of Pt VIB of the Act.

4                     The application is supported for the purposes of this interlocutory aspect by an affidavit of the operations manager of Woodside Energy Ltd.  That affidavit makes apparent that the Cossack Pioneer is a floating vessel moored in the Indian Ocean approximately 112 kilometres out to sea north-west of Karratha.  It is attached to a piece of equipment called a riser which is in turn attached to the seabed.  Through the riser, the Cossack Pioneer extracts oil and gas from the seabed which is then processed and stored on board.  There is facility for that on board.  The oil is then transferred from the Cossack Pioneer to other vessels for transportation.

5                     The affidavit also makes apparent that Woodside employs 12 qualified marine engineers to perform work on the Cossack Pioneer.  The vessel is a 24-hour, seven days per week operation.  It operates in two swings of 14 days each swing.  Five engineers are rostered to work per swing.  On Saturday, 9 April 2005, five engineers are rostered to work.  They are identified by name in the affidavit.  They are engineers who commenced their swing on 30 and 31 March 2005 and will conclude that swing on 13, 14 April 2005.

6                     The engineers work a 12-hour shift.  Usually two of the engineers perform watch-keeping duties.  The other three engineers perform maintenance duties.  Their employment is governed by individual written contracts of employment, by the certified agreement and underlying policies.  The evidence is that to the best of the knowledge of the deponent, all of the engineers are members of the respondent union.

7                     The duties of the engineers in addition to those previously referred to include mechanical maintenance tasks, monitoring and operating machinery and equipment and operating, monitoring and maintaining the utility systems.  These include airconditioning, electricity, steam, water and a propulsion system.

8                     The affidavit attests that safety is absolutely paramount on the Cossack Pioneer.  It is critical that the vessel's safety systems are maintained in working order.  In the event they are not so maintained and monitored and an incident arises, the consequences of serious personal injury and property damage are said to be extremely significant.  This imperative for safety vigilance is reflected in safety legislation.

9                     Since before the expiry of the certified agreement of 2001 on 8 November 2004, representatives of Woodside have been conducting negotiations with representatives of the respondent.  In addition, Woodside has engaged in enterprise bargaining negotiations with other unions who have employees working on the Cossack Pioneer.  The affidavit contains details of the progress of those negotiations which is not necessary to further canvass here beyond stating the fact that they are in progress.

10                  On 5 April, a letter on the letterhead of the respondent was received by the deponent.  I set out the full content of that letter:

‘NOTICE OF PROTECTED INDUSTRIAL ACTION

Section 170MO Workplace Relations Act 1996

In accordance with the requirements of the Workplace Relations Act 1996 we hereby give at least 3 working days notice that AIMPE members employed by your company on or in connection with the FPSO “COSSACK PIONEER” will take Protected Industrial Action in pursuant of our claims and with the object of obtaining satisfactory terms of agreement and having such agreement certified by the Commission.

The Protective Industrial Action shall commence at 0600 HRS Perth – time on Saturday, 9^th April 2005, and the nature of the action shall be to withhold their labour/services other than accommodation/hotel – services and other than emergency services/duties.  There will be a refusal to crew-change whilst this action is in progress.

In the event that any employees/agent of the Company attempts to intimidate an AIMPE member, in connection with his/her compliance with the decision of the AIMPE Federal Executive to take this Protective Industrial Action, AIMPE members on the FPSO will immediately convene a meeting and record all details of the events in signed witness statements and provide these to AIMPE for subsequent action or prosecution under the Workplace Relations Act.

The duration of this Protective Industrial Action is 24 hours.’

11                  The applicant challenges the eligibility of the notice to give protected status under the provisions of the Act to which I briefly previously referred.  There are two grounds to that challenge.  The first is that when the notice refers to the nature of the proposed action being ‘to withhold their labour/services, other than accommodation/hotel/services and other than emergency services/duties’, it is extremely ambiguous in respect of each of those inherent descriptions.  It is said by the deponent that, given the nature of operations on the Cossack Pioneer and the interconnectedness between safety systems and production systems, there is concern that no action be taken by engineers that adversely impacts upon safety systems or positively interferes with production systems.  It is not clear whether the engineers engaging in industrial action will monitor the power supply, for example, to the accommodation facility, nor it is said is it clear whether the engineers will ensure that pressurisation of the temporary refuge is kept to minimal levels, that being a critical safety issue.

12                  The reference to emergency services/duties likewise contains ambiguities.  It is said not to be clear whether this sort of work is contemplated because alarms need to be monitored by the engineers even when there is not an emergency.  Further it is not clear whether engineers will, during threatened industrial action as proposed, monitor the boilers or the instrument air system.  If either of those systems trips or stops, safety issues arise.  Other examples are given in the affidavit.

13                  The second limb of concern is the sentence in the notice which says:  ‘There will be a refusal to crew change while this action is in progress’.

14                  A crew change occurs when employees who have been working on the Cossack Pioneer are transported by helicopter on shore, and replacement crew are brought offshore onto the Cossack Pioneer.  As appears from facts previously recounted, there is no rostered crew change to take place on Saturday, 9 April 2005.  The deponent, in the absence of any scheduled crew change, interprets the notice in this respect as intending to prevent Woodside from flying in any alternative labour to perform the work which would normally be performed by the engineers on Saturday, 9 April 2005, and that this threat applies to rostered crew change scheduled to take place after that date.

15                  Given the ambiguity, it is said that it is impossible for him to ascertain exactly which functions are going to be performed on 9 April 2005.  Consequently, the application is brought challenging the purported protected character of the proposed action.

16                  For the grant of interlocutory relief, it is well established that there must be established a serious issue to be tried and that the balance of convenience must favour the grant of that relief.  From the circumstances I have already recounted, it appears to me that there is a serious question to be tried in relation to the notice.  The safety issues of their very nature raise issues of great seriousness.  Ambiguities in terms of responsibilities in relation to the conduct of matters pertaining to safety, raise a serious issue.

17                  The balance of convenience is affected by the nature of the seriousness of the issue to be tried.  The safety issues carry into the balance the possibility of serious endangerment of property and life in the event of the operator not being clear on precisely how responsibilities would fall out and should be conducted during the period of the proposed action.

18                  It is to be observed that the interim relief would only prevent the operation of the proposed action during the period for which it is proposed, namely from 6 am on 9 April to 6 am on 10 April; that is a period of 24 hours.  It would bring that action to an end.  However, it would not be an ongoing matter for inhibiting lawful conduct of industrial relations on the Cossack Pioneer.

19                  In my view, the applicant has established the conditions that would entitle it to the issue of interlocutory relief in the terms which I've referred to.  I already hold an undertaking as to damages executed on behalf of the applicant and in support of the application.

20                  I propose also in the orders that would be made on the minute of orders as discussed with counsel for the applicant to set the matter down for directions in relation to the application at 9 am on Tuesday, 12 April 2005.  That would provide for a prompt opportunity for the respondent, not present now, to come before the Court and to address any matters that arise.

21                  For those reasons I propose to grant the interlocutory relief in terms of the minute of orders as discussed with counsel.  I now make the orders in terms of that minute.

Associate:

Dated:              11 April 2005