INDUSTRIAL ACTION – suspension of protected industrial action – cooling off – ss.413, 425 Fair Work Act 2009 – application by Patrick Stevedores to suspend protected industrial action by employee members of MUA – MUA submitted only current industrial action relevant in considering appropriateness of suspension and planned 24 hour stoppages not relevant – Commission accepted that operation of s.425 of FW Act premised on industrial action that is being engaged in, as distinct from threatened, impending or probable – whether being engaged in a question of fact – industrial action in the form of bans had occurred and further bans occurring – stoppages imminent at date of hearing – Commission satisfied bans in place provided the jurisdictional trigger for exercise of Commission’s powers – held s.425 needed to be construed in context of FW Act, in particular the effect of s.413(7) that no protected industrial action can occur if suspension order in operation – appropriateness of suspension under s.425 should be considered in light of the full consequences of suspension – interpreting clause more narrowly an artificial approach ignoring practical realities – appropriate to have regard to industrial action happening and impending when assessing appropriateness of suspension – concept of an order being limited to specific action and impliedly permitting other future protected action inconsistent with scheme of FW Act – Commission noted Booth DP’s involvement in facilitating discussions regarded as useful by parties – noted industrial action appeared to have escalated rapidly while Booth DP on leave – considered compromise on some issues likely – involvement of Commission likely to be of assistance – Commission had regard to the nature of the industry and the importance of Patrick to important aspect of economy – disruption of services to third parties, combined with other circumstances a relevant contextual consideration to the question of benefit to the parties in resolving matters in dispute – satisfied suspension of protection industrial action would assist bargaining representatives in resolving matters in dispute – considered suspension positively consistent with public interest and object of FW Act – Commission satisfied suspension appropriate – suspension for 35 days would enable detailed consideration before Booth DP and not deprive parties of their options for the future. Patrick Stevedores Holdings P/L v The Maritime Union of Australia
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