DP World Brisbane Pty Ltd v The Maritime Union of Australia

[2014] FWC 2404

[2014] FWC 2404

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

DP World Brisbane Pty Ltd and Others
v
The Maritime Union of Australia
(C2014/3693)

VICE PRESIDENT CATANZARITI SYDNEY, 9 APRIL 2014

Appeal against decision [2014] FWC 1523 and Order [PR548508] of Deputy President Booth at Sydney on 10 March 2014 in matter number C2012/1405 - Stay Granted.

[1] On 10 March 2014, Deputy President Booth issued an order 1 (Order) and decision2 (Decision) in matter C2012/1405, an application pursuant to s.739 of the Fair Work Act 2009 (the Act) filed by the Maritime Union of Australia. While it is not necessary for me to go into the details of that application, I note that the application concerned a dispute in relation to the drug and alcohol testing policy of DP World Brisbane Pty Ltd, DP World (Fremantle) Limited, DP World Melbourne Limited and DP World Sydney Limited (collectively, “DP World”). The dispute arose under the dispute resolution provisions contained in various enterprise agreements that were in effect.3

[2] The Deputy President’s Order was made in the following terms:

“A. The Fair Work Commission orders as follows:

1. The DP World Alcohol and Other Drug Policy 2012 is hereby amended to the effect that:

(a) The method of testing for drugs in an initial random test (initial test) and a second test designed to confirm the results of the initial test (confirmatory test) is to be by way of oral fluid and not urine;

(b) Confirmatory tests for drugs are to test for the same drugs as the initial test.

B. This order will take effect from 7 April 2014.”

[3] On 31 March 2014, DP World lodged an appeal against the Decision and Order, and indicated in its Notice of Appeal that it sought a stay of the Deputy President’s Decision. I heard the parties on 4 April 2014 in relation to the stay application, and made a decision to grant the stay. At the conclusion of the hearing I informed the parties of my decision and that the reasons for my decision would be published in due course. These are the reasons for my decision.

Applicable Principles and General Approach

[4] There was no dispute between the parties as to the principles applicable to the determination of the stay application. They are as stated in Kellow-Falkiner Motors Pty Ltd v Edghill 4,in which the Full Bench approved the following statement of principle:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

Submissions

[5] DP World’s grounds of appeal can be summarised as follows:

• The Deputy President erred in that she failed to give effect to the common intention of the parties that each of the enterprise agreements would require a drug and alcohol testing regime that utilised urine testing for the second and confirmatory test.



• The Deputy President erred in that she failed to take into account or give proper weight to the common intention of the parties that there be a drug and alcohol testing regime that utilised urine testing for the second and confirmatory test.



• The Deputy President failed to properly construe and/or apply the enterprise agreements for the purposes of the proceedings.



• The Deputy President erred in finding that it was necessary “to give consideration to the merit of using urine for a second test.”



• The Deputy President erred in finding that “both oral and urine tests have drawbacks in relation to cannabis, however, for the purpose of assessing impairment and risk to safety in the workplace an oral fluid test is preferable to a urine test.”



• The Deputy President erred in failing to give proper weight to her findings with respect to the limitations of oral testing.



• The Deputy President erred in finding that the “use of urine for a second test following a non-negative oral test is unjust and unreasonable.”



• The Deputy President should have found that there was nothing in the appellant’s drug and alcohol policy that was unjust or unreasonable.

[6] On the issue of whether a stay should be granted, DP World submitted that:

• There is an arguable case with some reasonable prospect of success in respect of the question of leave to appeal. It is in the public interest for leave to appeal to be granted as the decision raises significant issues relating to the jurisdiction and power of the Fair Work Commission to make orders under s.739 of the Act.



• There is an arguable case with real prospects of success on the substantial merits of the case.



• The balance of convenience favours the grant of a stay as the Order would have the effect of requiring DP World to expend significant resources in order to modify its existing drug and alcohol testing policy, only for the policy to be reverted to its current state should the appeal be allowed.

[7] In opposing the stay application, the Maritime Union of Australia submitted that:

• The balance of convenience weighs against the granting of the stay as the change to the existing alcohol and drug testing policy would be minimal as oral testing procedures were already in place.

Consideration

[8] I accept DP World’s submission that the Decision raises significant issues relating to the jurisdiction and power of the Fair Work Commission to make orders under s.739 of the Act, and that therefore DP World has an arguable case with some reasonable prospect of success in respect of the question of leave to appeal.

[9] Further, I accept DP World’s submission that there is an arguable case with reasonable prospects of success in relation to the merits of the matter. The grounds of appeal outlined by DP World reveal a number of issues that, if successfully made out, could provide a basis for allowing an appeal against the Deputy President’s Decision.

[10] In light of the above, I find that DP World has an arguable case with some reasonable prospect of success in respect of the question of leave to appeal and on the substantial merits of the appeal.

[11] Further, I accept DP World’s submissions that the balance of convenience favours the granting of a stay on the basis that significant confusion would flow and resources would be required to be expended if DP World were to modify its drug and alcohol testing procedures in line with the Deputy President’s Order and, should the appeal be allowed, subsequently return to the status quo.

[12] Having considered the authority on the exercise of the Fair Work Commission’s discretion to grant a stay, I find that in all the circumstances a stay order is appropriate.

Conclusion

[13] The Order and Decision are stayed pending the hearing and determination of DP World’s appeal or until a further order of the Fair Work Commission. Given the nature of the Order, it is appropriate for the stay order to operate from 7 April 2014.

VICE PRESIDENT

Appearances:

Y Shariff of Counsel for DP World Brisbane Pty Ltd, DP World (Fremantle) Limited, DP World Melbourne Limited and DP World Sydney Limited.

M Burns for the Maritime Union of Australia.

C O’Callaghan for the Transport Workers Union of Australia (intervening).

Hearing details:

2014.

Sydney:

April 4.

 1   The Maritime Union of Australia v DP World Brisbane Pty Ltd; DP World (Fremantle) Limited; DP World Melbourne Limited; DP World Sydney Limited [PR548508].

 2   The Maritime Union of Australia v DP World Brisbane Pty Ltd; DP World (Fremantle) Limited; DP World Melbourne Limited; DP World Sydney Limited [2014] FWC 1523.

 3   DP World Brisbane Enterprise Agreement 2011 [2012] FWAA 4414, DP World Fremantle Enterprise Agreement 2011 [2012] FWAA 4839, DP World Melbourne Enterprise Agreement 2011 [2012] FWAA 3837 and DP World Sydney Enterprise Agreement 2011 [2012] FWAA 3861.

 4   P Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 1207.

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