Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd Summary

[2023] FWC 311

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union

DP World Brisbane Pty Ltd

(C2021/5082)

DEPUTY PRESIDENT ASBURY

BRISBANE, 6 FEBRUARY 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]

This Decision concerns an application made by the Maritime Union of Australia division of the Construction, Forestry, Maritime, Mining and Energy Union (the Union) pursuant to s. 739 of the Fair Work Act 2009 for the Fair Work Commission to deal with a dispute under the dispute resolution procedures in the DP World Brisbane Enterprise Agreement 2020 (the Enterprise Agreement). The Respondent to the dispute is DP World Brisbane Pty Ltd, the employer covered by the Enterprise Agreement.

The agreed question for determination and my answer to that question are as follows:

Question:
Does clause 9 of the Enterprise Agreement permit employees to be represented by the Union in “one-on-one employee feedback sessions” when those sessions involve Operations Supervisors providing “employees with feedback in the areas of performance, attitude, communication and safety”?
Answer:
Yes.

Reasons for Decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd was heard by the Fair Work Commission, with Deputy President Asbury presiding over the matter in Brisbane on 6 February 2023. The case involved a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (the Union), and DP World Brisbane Pty Ltd (the Employer). The Union brought an application under section 739 of the Fair Work Act 2009 to resolve a dispute under the dispute resolution procedures in the DP World Brisbane Enterprise Agreement 2020. The primary issue was whether clause 9 of the Enterprise Agreement allowed employees to be represented by the Union during "one-on-one employee feedback sessions" conducted by Operations Supervisors, which involved providing feedback on performance, attitude, communication, and safety.

The court was required to interpret the terms of clause 9 of the Enterprise Agreement and determine whether it permitted the Union's representation during the mentioned feedback sessions. The interpretation hinged on understanding the specific language of the clause and its scope in relation to the feedback sessions. The Union argued that the clause allowed for their representation, while the Employer contended that the clause did not cover such sessions.

The Fair Work Commission, after considering the arguments and the language of the clause, concluded that clause 9 of the Enterprise Agreement did indeed permit employees to be represented by the Union during "one-on-one employee feedback sessions" provided by Operations Supervisors. The Deputy President found that the clause's wording was broad enough to encompass the feedback sessions in question. The detailed reasons for the decision were to be issued separately.

In light of the decision, it was determined that employees could be represented by the Union during the specified feedback sessions. This outcome clarified the rights of employees under the Enterprise Agreement and provided guidance on the scope of union representation in employee feedback processes.

Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established