The ITF in Australia have recently completed a "Week of Action" at the Port of Newcastle, New South Wales, Australia. This ITF initiative arose out of the very sad fatalities on the Panamanian flagged coal carrier Sage Sagittarius. The three fatalities of two Filipino crew members and one Japanese superintendent have received significant press in Australia both within the industry and the wider public domain. The Australian Federal and the New South Wales Police forces have investigations ongoing.
During a recent "Week of Action" the ITF boarded ships at Newcastle to, as they said, "protect the welfare, safety and dignity of international seafarers" and the ITF focussed on those vessels flying what they refer to as "Flags of Convenience" including but not limited to vessels on the Cayman Island, Cypriot, Liberian, Maltese and Panamanian Registries. According to ITF, over the week, ITF teams of inspectors and activists gave 20 ships a detailed "inspection under the policies and procedures of the ITF's Flags of Convenience campaign". The ITF declared themselves to be "more than happy with the result of all of our actions". The ITF also paid tribute to "the support and facilitation of the Newcastle Port Corporation".
Shipowners, Operators and Masters should generally be aware that the ITF has no legal authority to investigate and inspect internationally flagged vessels in Australian ports for any alleged or perceived breaches of Australian labour law or otherwise and there is no duty on Masters, Shipowners, Operators or Charterers to comply with their requests nor sign the ITF CBA or any other agreement or document.
To the extent that the ITF's demands are not met by Owners or the Master, the ITF has in the past sought to apply pressure through the indirect action or boycott. To the extent that such action constitutes a "secondary boycott" within the meaning of Section 45D of the Competition and Consumer Act 2012, it is prohibited and a claim for damages can be pursued. Penalties of up to $750,000 per offence can also be applied.
Boycott activity by the ITF is therefore a very serious matter and can justifiably be met with a firm response by Owners. An application to the Federal Court for an urgent interim injunction or an immediate claim for damages are available to Owners and may be appropriate depending on the particular circumstances.
Quick and decisive action will usually dissuade the ITF from pushing further and in the event of intervention the first thing is simply to remind the ITF of their lack of authority and penalties for breach of Section 45D.
If you or your members require any assistance with dealing with any action of the Australian ITF or Australian Authorities, then do not hesitate to contact Joe Hurley, National Head of the HWL Ebsworth Lawyers Transport Group at jhurley@hwle.com.au or Jesper Martens at jmartens@hwle.com.au.
Information received with thanks from HWL Ebsworth Lawyers, Sydney, Australia.