Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Limited T/A DP World

[2020] FWC 3875

[2020] FWC 3875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union

v

DP World Sydney Limited T/A DP World

(B2020/381, B2020/382, B2020/383, B2020/384)

DEPUTY PRESIDENT BULL SYDNEY, 23 JULY 2020

Proposed protected action ballot of employees of DP World Sydney Limited T/A DP World and others; application to extend minimum period of notice, “exceptional circumstances”.

1. Applications pursuant to s.437 of the Fair Work Act 2009 (the Act) have been filed by the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for protected action ballot orders in relation to certain employees of the following four employers:

·   DP World Sydney Ltd

·   DP World (Fremantle) Ltd

·   DP World Brisbane Pty Ltd

·   DP World Melbourne Ltd

collectively referred to as DP World.

1. The applications were dealt with together as provided for under s.442 of the Act. The parties each sought and were granted permission to be legally represented pursuant to s.596(2)(a) of the Act on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

1. The employees to be balloted are employees of DP World who are members of the CFMMEU and are currently covered by the following enterprise agreements:

·   DP World Sydney Enterprise Agreement 2015

·   DP World Fremantle Enterprise Agreement 2015

·   DP World Brisbane Enterprise Agreement 2016

·   DP World Melbourne Enterprise Agreement 2016

(the Agreements)

1. All four Agreements have a nominal expiry date of 28 February 2019, and as such the applications have been filed in accordance with s.438 of the Act. The draft orders provided by the CFMMEU propose that various questions relating to proposed industrial action be asked of CFMMEU’s members employed by each of the four employers.

1. DP World does not oppose the protected action ballot orders being issued subject to firstly noting that no concession is made as to the validity of any industrial action that may be notified subject to the results of the ballots. In particular, Mr Perry representative for DP World raised concerns with the clarity of the questions 4 and 5 in the proposed DP World Sydney Ltd draft order and question 5 of the DP World (Melbourne) Ltd draft order.

1. Secondly, DP World has submitted that the orders sought by the CFMMEU provide for a notice period of 5 working days to be provided of any industrial action to be taken as a result of the ballots. The CFMMEU has consented to allow the notice period to be extended to from 3 to 5 working days.

Legislative requirements

1. Pursuant to s.437 of the Act, a bargaining representative of an employee (in this case the CFMMEU) who will be covered by a proposed enterprise agreement may apply to the Commission for an order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in particular protected industrial action for the agreement. The specific terms of s.443 are as follows:

“443 When FWC must make a protected action ballot order

(1) FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).”

1. The legislation as expressed at s.443(1) of the Act requires that the Commission must make a protected action ballot order if satisfied the Applicant has been, and is, genuinely trying to reach an agreement with the employer.

1. Attached to each of the CFMMEU’s applications was a statutory declaration (Form F34B) of Mr Warren Smith, the Divisional Assistant National Secretary of the (Maritime Union of Australia Division) of the CFMMEU in support of each application. Mr Smith outlined the history of enterprise negotiations between the parties commencing in early September 2018 up until June 2020.

1. Mr Smith states that the CFMMEU had been trying to reach an agreement with DP World and remains committed to reaching an agreement despite being significantly apart on some issues. Mr Smith’s evidence is not contested by DP World.

1. For the purposes of s.443(1)(b) of the Act, I am satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with DP World.

1. Section 414(2) of the Act requires that written notice of any action to be taken must be provided at least 3 working days prior to the action occurring. Section 443(5) of the Act allows the Commission to specify a longer period of up to 7 working days where the Commission is satisfied that there are exceptional circumstances justifying the minimum period of notice being longer than 3 working days.

1. As noted above, the CFMMEU has consented to an extension of the notice period from 3 to 5 working days. While DP World raises a number of factors which it submits establish exceptional circumstances in accordance with s.443(5) of the Act, the CFMMEU concession to an extension is based on the sole ground of circumstances concerning the COVID-19 pandemic.

1. The Commission itself must be satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, pursuant to s.443(5) of the Act. In this regard, the Commission relies on the accepted position of both parties that that the COVID-19 pandemic has created circumstances relevant to the stevedoring industry that constitute exceptional circumstances. Some of these circumstances were identified in a recent Commission decision.[1] I am satisfied that the COVID-19 pandemic is a matter that is out of the ordinary course, unusual, special or uncommon and may reasonably be viewed as an exceptional circumstance for the purposes of these particular applications. I am further satisfied that on this basis an extension of the notice period is justified and that the Commission should exercise its discretion to extend the notification period from 3 to 5 working days, noting that this is within the period allowed under s.443(5) of the Act.

1. Having regard to the above I am satisfied that the requirements in s.443(1) of the Act have been met and, accordingly, that the orders sought must be made.

1. Orders PR721232, PR721234, PR721235, and PR721237, based on the drafts provided by the CFMMEU, are issued in conjunction with this Decision. It is further noted that the Orders will provide that the protected action ballots will close within 30 days from the date of the Orders.

DEPUTY PRESIDENT

Appearances:

Mr D Perry solicitor and Mr S Crilly solicitor for DP World Sydney Ltd and others
Mr P Boncardo of counsel and Ms W Carr for the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union

Hearing details:

23 July 2020

Sydney (by telephone)

[1] The Maritime Union of Australia Division, Construction, Forestry, Maritime, Mining and Energy Union v Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited; Brisbane Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited [2020] FWC 3616

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