Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Limited

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) appealed against an order made by Deputy President Mansini in the Fair Work Commission (FWC). The appeal pertained to an order that was issued on 24 July 2019 in the matter of C2019/4525, which concerned the CFMEU's application for an interim order under section 420(2) of the Fair Work Act 2009 (Cth). The CFMEU sought an interim order to prevent DP World Melbourne Limited from taking adverse action against employees who engaged in protected industrial action. The key issue before the court was whether the duty to make an interim order under section 420(2) of the Act was activated when the application was received by the FWC within the two-day period following the protected action, and whether the phrase “within 2 days after” required strict compliance.

The court considered whether the statutory language of “within 2 days after” mandated that the application must be lodged exactly two days after the protected action, or if the two-day period was to be interpreted more flexibly. The court held that the phrase “within 2 days after” should be given its ordinary and natural meaning, and that strict compliance was not necessary. The court found that the application had been lodged within the spirit of the provision, even if not precisely within the two-day period. The court also considered the broader context and purpose of section 420(2), which is to provide timely protection for employees engaging in protected industrial action.

Ultimately, the court found that the Deputy President had erred in setting aside the interim order, as the duty to make the order was indeed enlivened, and the application was lodged within the practical ambit of the two-day period. The appeal was upheld, and the decision and interim order were quashed. The court's decision highlighted the importance of considering the ordinary meaning of statutory language and the purpose of the legislative provision in interpreting when an application should be made under section 420(2) of the Act.