DP World (Fremantle) Limited

[2014] FWC 4094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

DP World (Fremantle) Limited
(C2013/7801)

VICE PRESIDENT WATSON MELBOUNRE, 7 JULY 2014

Application by DP World (Freemantle) Limited that industrial action by employees stop -alleged industrial action - alleged “go-slow” - whether industrial action happening - whether industrial action is threatened, impending or probable - whether industrial action being organised - Fair Work Act 2009 s.418.

Introduction

[1] This decision relates to an application by DP World (Fremantle) Limited (DP World) for orders under s.418 of the Fair Work Act 2009 (the Act) that alleged industrial action stop, not occur and not be organised at the DP World Fremantle container terminal.

[2] The application was initially made on 22 December 2013. At the conclusion of the hearing of the matter on 23 December 2013 Commissioner Cambridge refused the application.

[3] An appeal against that decision was lodged by DP World on 30 December 2013. The appeal was heard on 2 January 2014. At the hearing of the appeal DP World sought orders allowing the appeal and the making of an interim order in the terms sought in the application. While disputing the existence of industrial action the MUA did not oppose the making of these orders. By decision dated 3 January 2014 a Full Bench granted permission to appeal, allowed the appeal and made interim orders pending the determination of whether final orders should be made. The Full Bench remitted the matter to me for that purpose.

[4] Hearings on the matter were conducted in Perth on 12 and 13 February and 3 June 2014. At these hearings Mr D Perry, of counsel, appeared for DP World, and Mr L Edmonds appeared on behalf of the Maritime Union of Australia.

Background

[5] There is a history of industrial conflict at the DP World Fremantle terminal resulting in previous orders under s.418 of the Act. On 10 August 2010 Commissioner Cloghan found that industrial action in the form of a “go-slow” had occurred and made an order of limited duration that it stop and not be engaged in. On 2 April 2012 I made a similar finding and made a similar order. On 12 April 2013 Commissioner Cloghan again found the existence of a “go-slow” and made a further order under s.418 of the Act.

[6] Productivity at the Fremantle terminal is typically measured by ‘shift crane rate’ which is a measure of the total number of containers moved divided by the adjusted working hours multiplied by 8. The target shift crane rate across the Fremantle terminal is 172.5. This target was agreed in May 2012 as part of the negotiation of the current enterprise agreement and confirmed in September 2013 following discussions between senior site employee representation committee members, senior officials of the MUA, including its National Secretary, Paddy Crumlin, and Assistant Branch Secretary, Will Tracey, and then DP World Managing Director, Ganesh Raj.