Application by DP World Melbourne Limited - [2019] FWC 6788

[2019] FWC 6788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.418—Industrial action

Application by DP World Melbourne Limited

(C2019/4525)

Deputy President Mansini

MELBOURNE, 4 OCTOBER 2019

Application that industrial action by employees stop – alleged “go slow” – whether industrial action happening.

This decision relates to an application by DP World Melbourne Limited (DP World) for orders under s.418 of the Fair Work Act 2009 (Cth) (the Act) that alleged industrial action stop.

On the evidence before the Commission, it does not appear that the alleged unprotected industrial action (in the form of a “go slow”) is happening. The application by DP World for orders under s.418 must therefore be dismissed. The reasons for this decision follow.

Industrial context

DP World operates a container stevedoring terminal at West Swanson Dock, Port of Melbourne, Victoria (the Terminal).

At the time of the application, DP World employed 566 employees who perform work at the Terminal, are or are eligible to be members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and covered by the DP World Melbourne Enterprise Agreement 2016 (the Melbourne Agreement) (the Employees).[1] The Melbourne Agreement nominally expired on 28 February 2019 and bargaining for a replacement agreement has been ongoing since March 2019.

In the course of bargaining, the CFMMEU has organised and the Employees have taken protected industrial action, including a range of indefinite bans and restrictions and a complete stoppage of work extending for 96 continuous hours.

The application alleges that, since the Employees returned to work after the 96 hour stoppage on 14 July 2019, DP World has experienced a material and unexplained reduction in productivity at the Terminal; the only reasonable inference is a coordinated effort on the part of the Employees to work slower than is customary; and this is linked to bargaining and related disputation.

The CFMMEU and two Employees deny there is a “go slow” and dispute the productivity data yet offer a range of possible explanations, none of which are accepted by DP World.

Also in the period since March 2019, the parties have consulted about DP World’s proposal to introduce change, in response to having lost a large number of contracts to its competitors. It is anticipated that 138 jobs will be affected. On 21 July 2019, an initial 47 voluntary redundancies took effect by agreement. Further redundancies were announced around that time.

Procedural history

The application was made on 23 July 2019, initially alleging that unprotected industrial action in the form of a “go slow” was being organised by the CFMMEU and taken by the Employees.

The hearing of the application commenced on 24 July 2019. The CFMMEU sought and was granted an adjournment on procedural fairness grounds because it had not been able to obtain full instructions.[2] The CFMMEU’s request was granted, interim orders issued and, by consent of the parties, a program for filing of materials was directed and the hearing was adjourned until 2 August 2019. [3]

In the intervening period, on 1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 6788
Decision Date: 4 OCTOBER 2019

CaseChat Overview and Summary

DP World Melbourne Limited applied for orders under s.418 of the Fair Work Act 2009 (Cth) that industrial action by its employees cease. The Fair Work Commission was required to determine whether the industrial action was occurring, as alleged by DP World. The Commission found that DP World had not established that a go slow was happening at the time of the hearing. The application was dismissed.

The court considered the evidence and determined that it was not possible to draw a clear inference that the alleged industrial action was occurring. DP World's evidence was based on productivity data, but the Commission found that the data was not an ideal comparator due to other events occurring during the period. The court also considered the evidence of two employees and the union, who denied any knowledge or involvement in a go slow. The court found that the evidence did not support the conclusion that a go slow was happening.

The Fair Work Commission found that it did not appear that the alleged industrial action was happening, and therefore dismissed the application by DP World.

Orders