FWC orders stop to indefinite lock out of tug boat employees

Here is a decision issued by a senior Full Bench of the Fair Work Commission last night ordering a major harbour towage (tug boats etc) operator in Australia to cease taking protected industrial action against its workforce in the form of an indefinite lock out.



[2022] FWCFB 209

Fair Work Act 2009 s.424—Industrial action

Re Svitzer Australia Pty Limited





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

[1] On 14 November 2022, Svitzer Australia Pty Ltd (Svitzer) gave notice to the bargaining representatives pursuant to s 414(5) of the Fair Work Act 2009 (Cth) (FW Act) of employer response action in the form of an indefinite lockout of all harbour towage employees covered by the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 commencing at midday AEDT on 18 November 2022. This notice has caused the Commission, on its own initiative, to consider making an order under s 424(1) of the FW Act to suspend or terminate protected industrial action by Svitzer.

[2] We conducted a hearing in relation to this matter on 17 November 2022. Having heard the evidence and submissions of the bargaining representatives, the Minister and other interested parties, we make the following findings:

(1) The lockout of its employees which Svitzer proposes to commence later today constitutes protected industrial action that is threatened, impending or probable. Section 424(1)(b) is therefore engaged.

(2) We are satisfied that Svitzer’s intended lockout threatens to endanger the welfare of the Australian population or part of it. This finding engages s 424(1)(c).

(3) We are satisfied that Svitzer’s intended lockout threatens to cause significant damage to the Australian economy. This finding engages s 424(1)(d).

[3] As a consequence of the above findings, we are required under s 424(1) to make an order suspending or terminating Svitzer’s protected industrial action. We consider that the appropriate course is to make an order suspending Svitzer’s protected industrial action for a period of six months. The effect of this order under the FW Act will be that no party will be able to take protected industrial action for the period of the suspension: s 413(7)(a).

[4] An order giving effect to this decision will be issued in conjunction with this decision. We will publish our full reasons for this decision in due course.