Busy week for FWC on maritime issues

Transport unions cry foul on MV Portland fines as watchdog also tackles shipping firm Transpetrol

Busy week for FWC on maritime issues
The FWO is copping flack from transport unions


Fair Work Ombudsman (FWO) is on the cusp of straddling villain and hero status unionists in two maritime industry cases in the past few days.

With Australian Council of Trade Unions (ACTU), Maritime Union of Australia (MUA) and International Transport Workers’ Federation (ITF) condemnation and accusations ringing in its ears over the MV Portland court action, the FWO has announced court action against Norwegian shipping company Transpetrol alleging underpayments of more than $255,000 to 61 foreign crew.

The MV Portland issue sees fines and restitution sought in a Melbourne court over allegedly unlawful industrial action taken during decommissioning of the ship in January last year after it was sold.

The ACTU and the MUA attributed political motivations and federal ministerial interference over the FWO seeking:

  • penalties against nine crew for $10,800 each
  • penalties against the union of $54,000
  • compensation of $500,000 to be paid by the MUA to Alcoa for losses incurred.

It is alleged the MUA and the crew were aware the industrial action was unlawful as a result of orders made by the Fair Work Commission (FWC) and the Federal Court.

Acting Fair Work Ombudsman Michael Campbell says legal action was made begun because "enforcing compliance with laws outlining the process that must be respected when taking industrial action is fundamental to maintaining the integrity of Australia's system of industrial laws".

"Employers, workers and unions are all equal in the eyes of the law," Campbell says.

"They are entitled to the protections afforded to them, but they are equally bound by its obligations.

"The system only works if all workplace participants adhere to their obligations under the law. Anyone who would seek to deliberately flout the law can be assured that there are consequences for such actions.

"Industry representatives have a responsibility to lead from the front when it comes to compliance with workplace laws. They must exemplify the expectations they have of others."

But the unions see an ulterior motive.

"It is a national disgrace that a Turnbull Government agency is trying to prosecute workers for standing up for their jobs," ACTU president Ged Kearney says.

"This legal action is designed to harm Australian workers in favour of tax avoidance, workplace bullying and harassment and exploitative use of guest labour in our country.

"There should be an inquiry into the political use of the Fair Work Ombudsman by the Turnbull Government because there appears to be a conspiracy against these workers."

MUA national secretary and International Transport Workers’ Federation (ITF) president Paddy Crumlin echoes the sentiments.

"Alcoa's actions have been condemned by the MUA, ITF and seafarer unions around the world as an abusive attack on Australian seafarers' legal and national rights to work," Crumlin says.

And the MUA refuses to accept the FWO’s position.

"It is of little surprise that a heavily politicised agency like the Fair Work Ombudsman tells the media before the union," MUA assistant national secretary Ian Bray says.

"The MUA admits to no wrongdoing and will vigorously defend these charges."

Meanwhile, in Sydney in a case the unions are yet to comment on, the FWO charges that the oil tanker MT Turmoil conducted a series of coastal trading voyages in Australian territorial waters under charter by two Australian companies, BP Australia and Caltex.

No allegations are made against BP Australia or Caltex.

Transpetrol allegedly paid the foreign crew rates that were the equivalent of as little as $1.25 per hour in relation to base rates, in addition to industry specific allowances and overtime amounts.

However, it is alleged that under the Fair Work Act the crew were entitled to the minimum entitlements that applied under Australia’s Seagoing Industry Award and National Minimum Wage Order (NMWO).

Transpetrol was allegedly obligated to pay 58 of the crew minimum hourly rates of between $15.95 and $30.66 and overtime rates of between $19.94 and $38.32 per hour under the Seagoing Industry Award.

It is alleged that the other three foreign crew members were entitled to be paid base rates of up to $16.87 per hour under the NMWO.

Alleged individual underpayments of employees range from $374 to $10,390.

Campbell says the agency investigated following a request for assistance from one of the crew members.

"All businesses operating in Australia need to be aware of their employees’ lawful entitlements," he adds.

"Irrespective of their country of origin, employers, workers and unions are all equal in the eyes of the law when they operate in Australian workplaces.

"They are entitled to the protections afforded to them, but they are equally bound by its obligations.

"It is fair to say that the crew in this case were especially vulnerable and the role of an independent regulator such as the Fair Work Ombudsman ensures wage justice is secured

"The system only works if all workplace participants adhere to their obligations under the law." 

The FWO will assert in court that the Fair Work Act extends to a temporary licenced ship for any voyages carried out under that licence after two initial voyages have been completed, provided the two initial voyages were completed within the preceding 12 months.  

Campbell says the 61 foreign crew members have now been back-paid in full but the decision was made to begin legal action because of the significant amount involved for vulnerable foreign workers.

The FWO seeks penalties against Transpetrol for three alleged contraventions of the Fair Work Act. This could amount to $51,000 per contravention.

It also seeks a court order requiring Transpetrol to provide a maritime industry factsheet to its crew members when operating in Australian waters in future.

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