Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Limited T/A DP World
[2019] FWCFB 6556
•24 OCTOBER 2019
| [2019] FWCFB 6556 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
v
DP World Sydney Limited T/A DP World & Ors
(C2019/4853)
VICE PRESIDENT CATANZARITI | SYDNEY, 24 OCTOBER 2019 |
Appeal against decision [2019] FWC 5011 of Deputy President Bull at Sydney on 18 July 2019 in matter number C2019/3975.
Introduction and background
[1] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) has filed an appeal, for which permission is required, against a decision of Deputy President Bull made on 18 July 2019 (the Decision). 1 The Decision was concerned with the application made by DP World Sydney Limited T/A DP World & Ors2 (DP World) for an order under s.418 of the Fair Work Act 2009 (Cth) (the Act) that certain specified unprotected industrial action not occur and not be organised.3
[2] On 19 September 2019, this Full Bench heard the parties on permission to appeal and the substantive appeal. Mr R Reitano, of counsel, with Mr S Koulouris, appeared for the Appellant and Mr Y Shariff, of counsel, with Mr S Crilly, appeared for the Respondents. The representatives for both parties were granted permission to appear pursuant to s.596(2)(a) of the Act as it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[3] On 21 June 2019, the CFMMEU issued DP World with notices of intention to take protected industrial action. 4 DP World applied for an Order under s.418 of the Act contending that the notices indicated an intention by the CFMMEU and its members to organise and take unprotected industrial action. In the Decision, the Deputy President considered the “4 subject matters” upon which this assertion was based.5 The Deputy President rejected assertions made by DP World in relation to three of the four subject matters finding that: bans of a finite duration were not in conflict with the question posed in the protected action ballots; action and the date it was to commence were adequately specified; and that bans on upgrades as notified were also consistent with the ballot questions. The tranche of the Decision relevant to the CFMMEU’s appeal is that which addresses DP World’s contention that some of the notified industrial action included industrial action which fell outside the 30 day period, and the Fair Work Commission (the Commission) had not extended the 30 day period.
[4] The Deputy President set out the position of DP World in the Decision at [98] – [101], which “put simply” was that “there was no refusal to perform the banned work as described in the relevant notices, as the opportunity to refuse to perform the work never arose during the 30 day period.” 6 It was the position of the CFMMEU that:
“the bans were in place from the dates specified in the relevant notices; the employer knew that the specified work would not be performed and the evidence was that they did not perform that work. It matters not that they were not asked to and refused to perform the work as the bans were in place. As such the requirement to commence the action within a 30 day period is satisfied and the notification of further bans is not proscribed by s.459(1)(d)(1) of the Act.” 7
[5] The Deputy President found that the notification of bans on working advanced or delayed start times, the performance of maintenance call-ins, and shift extensions would, if commenced as notified, not be protected industrial action as the action did not commence in the 30 day time period following the industrial action ballot. 8 Paragraphs [115] and [116] of the Decision reads as follows:
“[115] The requirement in s.459(1)(d)(1) to have commenced the notified action within 30 days was not met.
[116] Based on the above conclusions I find that the CFMMEU notification of the nature of the action and the day on which it will start in relation to the:
I. working of advanced or delayed start times at the Melbourne Terminal
II. the performance of maintenance call-ins at the Brisbane Terminal and working of advanced or delayed start times and
III. performance of shift extensions at the Fremantle Terminal
if commenced as notified would not have been protected industrial action as the action did not commence in the 30 day time period following the industrial action ballot.” (Footnotes omitted).
[6] In reaching the above conclusion, the Deputy President said:
“[114] Despite the differing circumstances, in my view, the reasoning of Lee J in Patrick Stevedores has application. The test at s.459(1)(d)(1) of the Act is not, as is more widely worded at s.418(1) of the Act, whether the action is threatened, impending or probable, but specifically whether it has commenced. The performance of work the subject of the bans was not required or requested by DP World to be performed, therefore, there was no relevant refusal to perform work subject to the bans. The opportunity for employees to act on the notified bans did not arise, hence, as the industrial action was not engaged in, it did not commence during the relevant period and whether it would have is in one sense speculative.”
[7] Notwithstanding his conclusion in relation to this aspect of DP World’s application for an order under s.418 of the Act, the Deputy President refused that application finding that no order could issue on the basis that the dates of the notified action had passed and there was no longer any threatened, impending or probable unlawful industrial action, nor any evidence of such action being organised. An earlier interim order 9 made by the Deputy President pursuant to s.420(2) of the Act was revoked. The Deputy President also records at [117] of the Decision that there was a discussion with the parties in relation to the expiration of a number of time periods relevant to the notified industrial action and that they requested that a decision issue as further notifications under s.414(6) had been given or were impending and there was a live issue to be resolved.
Grounds of appeal and submissions
[8] The CFMMEU’s Form F7 Notice of Appeal (Form F7)specifiesone ground of appeal, being that the Deputy President erred in finding that the bans authorised by a protected action ballot had not commenced within 30 days for the purpose of s 459(1)(d)(i) of the Act because the employer had not, during the period when those bans were in place, required workers to perform work contrary to those bans.
[9] The Form F7 also identifies that the CFMMEU seeks to appeal the Decision at paragraph [116], where it was found that the notification of bans on working advanced or delayed start times, the performance of call-ins, and shift extensions would not be protected industrial action.
[10] The CFMMEU submits that whether or not there was a refusal by employees of DP World to perform the work subject to the bans is irrelevant to the question of whether there was a ban. Rather, the inquiry as to whether a ban was in place is an evidentiary one directed to whether there was a prohibition on doing something. In the circumstances, the ban was implemented by communicating to DP World that there would be a refusal to do things that were ordinarily, or customarily, required of employees, and DP World could not change the ban once it was implemented.
[11] The CFMMEU submits that the Deputy President’s consideration of this issue commenced and concluded at paragraph [114] of the Decision, set out above. 10 The error made by the Deputy President is that the different circumstances meant that the reasoning of Lee J in Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (Patrick Stevedores)11could have had no application in the circumstances before him, for the following three reasons:
• First, the existence of the prohibition on doing certain work was not telegraphed to anyone in Patrick Stevedores. In the current matter, there was clear evidence from both parties that the CFMMEU and its members told DP World that they would refuse to do the work subject to the bans;
• Second, the reasoning in Patrick Stevedores was that a decision had been made by someone anterior to the Patrick Stevedores decision not to require the work to be done. In the current matter, there were vessels at the relevant Ports ready to be loaded and unloaded and the ordinary or customary requirement was for the work the subject of the bans to be performed; and
• Third, not requiring the work to be done was a contrivance to attempt to disturb the scheme of the Act. The purpose of the 30 day time period is not to allow an employer to engage in trickery, but rather to ensure that the resolve of employees to take industrial action that was voted on remains current.
[12] DP World advances three main contentions in support of its position that permission to appeal should not be granted and the appeal should be dismissed. In its written submissions, DP World summarises its contentions as follows 12:
• The CFMMEU’s purported appeal in this matter is not competent. An appeal is brought against the operative decision or order of the Commission, and not against its reasons for making that decision or order. The CFMMEU’s application seeks to expunge reasoning from the record where in fact it obtained the outcome it sought at first instance (that is, the disposition of the proceeding without the issue of final orders binding it or any of its members, officers or employees).
• Further and in the alternative, an appeal in this matter would be futile. Purporting to grant the relief which the CFMMEU seeks would have no operative effect.
• In the alternative, there is no error. The Deputy President correctly applied recent Federal Court authority which was directly on point, to relevantly uncontroversial facts. There is no basis to doubt the correctness of the reasoning by the Deputy President that the CFMMEU seeks to impugn; indeed, he was obliged to adopt it.
[13] In oral submissions in the appeal, DP World submits that the paragraph sought to be expunged is not part of the binding ratio of the Deputy President’s Decision and was not “the reason” for disposing of the application. 13 Accordingly the paragraph has no binding legal effect and if the CFMMEU wishes to agitate bans the Union could issue a further notice which may or may not be met with a s.418 application, or make a fresh application for a protected action ballot order. DP World further submits that if the Full Bench did what the CFMMEU was seeking by stating that paragraph [114] of the Deputy President’s reasoning was wrong, the Full Bench would be engaging in the same vice that is being complained of in the appeal against the Decision of the Deputy President by providing an advisory opinion. Further, DP World submits that the Full Bench could not expunge the Deputy President’s reasons for decision and those reasons stand as a historical record of what a single Member of the Commission ruled on in that particular matter. Whether parties wish to fasten upon that for their purposes is a matter for another time.
Permission to appeal
[14] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 14 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[15] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltdv Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters ...” 15
[16] It will rarely, if ever, be appropriate to grant permission unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.
[17] In relation to permission to appeal, the CFMMEU submits that:
• The Decision raises an issue that has not previously been dealt with by a Full Bench, being the meaning of the word ‘ban’ in the context of the collective bargaining regime contained in the Act;
• The appeal raises a novel question about the operation of s 459(1) of the Act, being whether an employer, by unilaterally deciding that it does not “require” work of particular kinds to be done despite employees indicating that they will refuse to that work, can defeat the ban, so that it falls outside the 30 day time limit; and
• The Decision is affected by error that should be corrected on appeal.
[18] Further, in oral submissions the CFMMEU submits that there is a purpose to be served by granting permission to appeal, as on appeal it seeks to agitate the decision which resulted in its loss of right to take some protected industrial action because it did not commence within the 30 day time period. 16 If the Decision were to be overturned, then the CFMMEU would seek to, if necessary, take the action that it submits it is entitled to take as protected industrial action. It is for this purpose that the CFMMEU contends permission to appeal should be granted.17 The CFMMEU contends that the conclusion of the Deputy President has a consequence in terms of other Members of the Commission dealing with the same or similar issues who will necessarily have regard to the views of the Deputy President, and that the Full Bench has the capacity of quash or vary what has been said in a decision by a single Member of the Commission. The CFMMEU also contends that at first instance all parties sought a decision in relation to the issue now subject of the appeal and that no party contended that it was anything but a live issue that needed to be resolved.
Consideration
[19] The Deputy President’s consideration in respect of DP World’s contention that the notified bans 18 had not been commenced in the prescribed 30 day period and cannot be protected industrial action, commences at paragraph [94] of the Decision. The Deputy President set out the position of both parties19 and cited relevant authorities in respect of the issue.20
[20] Paragraph [114] and [116] of the Decision are at the centre of the CFMMEU’s appeal, and the Deputy President’s finding and reasoning in these paragraphs is submitted to be in error. At paragraph [114], the Deputy President applied Patrick Stevedores and said, inter alia, that“the performance of work the subject of the bans was not required or requested by DP World to be performed, therefore, there was no relevant refusal to perform work subject to the bans”, and that “as the industrial action was not engaged in, it did not commence during the relevant period”. The Deputy President formed the view that the requirement in s.459(1)(d)(i) of the Act to have commenced the notified action within 30 days was not met. 21 Further, at paragraph [116], the Deputy President found that the relevant industrial action, if commenced as notified, would not have been protected industrial action as the action did not commence in the 30 day time period following the industrial action ballot.
[21] It was the CFMMEU’s submission that the circumstances in Patrick Stevedores differed from those of the current matter, as “in that case the employer changed its operations to avoid further conflict, whereas in this matter the work was not required to be undertaken but the bans were in place during the 30 day period”. 22 Notwithstanding the CFMMEU’s submissions regarding the “differing circumstances”, the Deputy President formed the view that the reasoning of Lee J in Patrick Stevedores had application.23 The Union and employees in Patrick Stevedores maintained that the relevant ban was in place, however the employer decided not to further direct employees to perform the work subject of the ban in the days leading up to the Anzac day public holiday. It was held therefore in Patrick Stevedores that “there could be no relevant refusal to perform work, or any other action in respect of work, which was not being required”.24
[22] In the Decision, the Deputy President applied the relevant Federal Court authority of Patrick Stevedores, and concluded that the test in s.459(1)(d)(i), being whether industrial action has commenced within 30 days, was not met as “the opportunity for employees to act on the notified bans did not arise, hence, as the industrial action was not engaged in, it did not commence during the relevant period”. 25 Further, and in our view arguably correctly, the Deputy President noted that “whether it [the industrial action] would have [commenced] is in one sense speculative”.26
[23] The Deputy President’s finding at paragraph [116] of the Decision followed his consideration of the relevant authorities, including Patrick Stevedores and his view that the reasoning of the Federal Court within this authority has application. The Deputy President considered his finding at [116] of the Decision in respect of the industrial action not being compliant with the 30 day commencement period alongside the other tranches of DP World’s application. The Deputy President said:
“[118] While I have accepted one of the four contentions of DP World in its s.418 application no order can issue on this point as the dates of the notified action have now passed and there is no longer any threatened, impending or probable unlawful industrial [action] (sic), nor is there evidence it is being organised.”
[24] It is evident from paragraph [118] of the Decision that the application filed pursuant to s.418 of the Act by DP World was dismissed, notwithstanding the Deputy President’s conclusion in relation to the industrial action not being compliant with the 30 day commencement period. The Deputy President revoked the interim order that was issued on 28 June 2019, and no final orders were issued in the matter. We note that this outcome aligns with the position of the CFMMEU in the matter below, as it opposed the issuing of any s.418 order on the basis that the notified industrial action was protected industrial action. 27
[25] In our view, there is no utility in granting permission to appeal. There would be would be no practical, operative effect if the relief sought by the CFMMEU, being to quash the relevant part of the Decision, were to be granted. The CFMMEU have not appealed the Deputy President’s ultimate decision to revoke the interim orders issued and dismiss the s.418 application filed by DP World. The CFMMEU contends that if permission to appeal were granted and the appeal upheld, it would seek to, if necessary, take the action that it submits it is entitled to take as protected industrial action. 28
[26] However, a decision by this Full Bench in respect of the current appeal is not determinative of whether such industrial action would be protected or not. Further, if permission to appeal were granted and the appeal upheld, with the relevant part of the Decision quashed, the Deputy President’s overall conclusion to dismiss the s.418 application and revoke the interim orders would still stand. We note that in refusing permission to appeal that the Decision under appeal should not be taken to have any wider application than beyond this particular case.
[27] Further, in respect of paragraph [114] of the Decision, we observe that whilst the Deputy President’s reasoning in respect of the bans not being compliant with the 30 day commencement period formed part of the ratio decidendi, alongside those relating to the other subject matters, we are of the view that paragraph [114] of the Decision alone does not have a legally binding effect. As DP World submits – in our view correctly – the decision stands as a historical record of the ruling of a single Member of the Commission in a particular case and the question of whether that ruling is correct is more appropriately a matter for another day. The Deputy President dismissed the s.418 application filed by DP World after having addressed each of the “4 subject matters” raised in the application, and paragraph [118] of the Decision evidences the Deputy President’s consideration of all the issues before him in reaching this conclusion in respect of the application.
Conclusion
[28] For the above reasons, we order as follows:
• Permission to appeal is refused.
• The appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr R Reitano of Counsel and Mr S Koulouris (Slater and Gordon Lawyers) for the Appellant.
Mr Y Shariff of Counsel and Mr S Crilly (Seyfarth Shaw Australia)for the Respondents.
Hearing details:
19 September.
2019.
Sydney.
Final written submissions:
CFMMEU’s submissions dated 26 August 2019.
DP World’s submissions dated 11 September 2019.
Printed by authority of the Commonwealth Government Printer
<PR712586>
1 [2019] FWC 5011.
2 DP World Melbourne Limited, DP World Brisbane Pty Limited, and DP World (Fremantle) Limited.
3 Decision at [1].
4 Decision at [11].
5 Decision at [24].
6 Decision at [101].
7 Decision at [103].
8 Decision at [116].
9 PR710461.
10 See paragraph [5] of this Decision.
11 [2019] FCA 451.
12 DP World’s submissions dated 11 September 2019 at [2].
13 Transcript of proceedings dated 19 September 2019, PN72.
14 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
15 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [(2010) 197 IR 266].
16 Transcript of proceedings dated 19 September 2019, PN48.
17 Transcript of proceedings dated 19 September 2019, PN48.
18 The relevant notified bans are set out in the Decision at paragraph [95] – [97].
19 Decision at [95] – [103].
20 Decision at [104] – [111]; the Deputy President cited Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451 at [221], EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8 at [15], EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2022 at [19], and Boral Resources (NSW) Pty Ltd [2010] FWAFB 1771 at [14].
21 Decision at [115].
22 Decision at [113].
23 Decision at [114].
24 Patrick Stevedores at [221].
25 Decision at [114].
26 Decision at [114].
27 Decision at [14].
28 Transcript of proceedings dated 19 September 2019, PN48.
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