DP World (Fremantle) Limited T/A DP World (Fremantle) Ltd v Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWC 6444

[2021] FWC 6444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

DP World (Fremantle) Limited T/A DP World (Fremantle) Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2021/7854)

DEPUTY PRESIDENT BINET PERTH, 23 NOVEMBER 2021

Alleged industrial action at DP World Fremantle

[1] At 5pm on 18 November 2021, DP World (Fremantle) Limited T/A DP World (Fremantle) Ltd (DP World) filed an application pursuant to section 418 of Fair Work Act 2009 (Cth) (FW Act) in the Fair Work Commission (FWC) for an order to stop industrial action (Application).

[2] Simultaneously, DP World made an application for an order for substituted service. The application was granted and an order for substituted service was issued on 19 November 2021 in PR735963.

[3] DP World operates a container stevedoring terminal at the Port of Fremantle,

Western Australia (Terminal).

[4] Employees who perform stevedoring work at the Terminal are covered by the DP World Fremantle Enterprise Agreement 2020 (Agreement).

[5] These employees are eligible to be members of the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

[6] The persons in relation to whom the Order is sought are:

a. employees of DP World who are employed by DP World at the Terminal and who are covered by Agreement (Employees);

b. the CFMMEU; and

c. officers and employees of the CFMMEU (CFMMEU Representatives).

[7] The Agreement establishes three categories of employment:

a. Fixed Salary Employees (FSEs) work according to a roster and are paid a salary.

b. Variable Salary Employees (VSEs) are available for irregular allocation but have access to leave and can ‘scratch’ up to 27 shifts per calendar month to ensure they are not required to work at a given time.

c. Supplementaries are casuals and can ‘scratch’ shifts without limitation.

[8] VSEs and Supplementaries typically ‘scratch’ shifts to suit their own preferences and commitments.

[9] Employees in all categories can work a form of overtime called a ‘shift extension’,

whereby they work one, two or four hours of overtime continuous with the end of an ordinary shift. FSEs may also work standalone overtime shifts, worked on days designated “off” on the

roster and paid at overtime rate.

[10] The Application asserts that the following constitutes industrial action and that such action is happening, impending and/or probable:

a. an ongoing a ban or limitation by Employees on volunteering for shift extensions when requested;

b. an ongoing ban or limitation by Employees on making themselves available for overtime; and

c. sporadic bans or limitations on the working by VSEs and Supplementaries of shifts on designated days.

[11] DP World assert that the industrial action is being organised by the CFMMEU, including through those of its delegates who are Employees.

[12] The Application was allocated to my Chambers at 7am on 19 November 2021 and listed for a conciliation conference and subsequently a hearing at 10am the same day.

[13] In reaching my decision, I considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

[14] The parties were informed of my decision and the terms of the proposed order on 19 November 2021. An interim order was published the same day, in PR735982 (Order). Below are the reasons for my decision.

Relevant Statutory Provisions

[15] Section 418 of the FW Act provides that:

“FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[16] Section 420 of the FW Act provides that:

“Interim orders etc.

Application must be determined within 2 days

(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, the FWC does not have to specify the particular industrial action.

(5) An interim order continues in operation until the application is determined.”

Consideration

[17] The Application was made by DP World in its capacity as a person likely to be affected directly by the alleged industrial action. I am satisfied that DP World has standing to make the Application.

[18] In order to grant the Application and make the order sought by DP World, the FWC must be satisfied that:

a. industrial action;

b. is happening, is threatened, is impending, is probable or is being organised;

c. which is not or would not be protected industrial action.

[19] Industrial action, if it is happening, impending or probable is not capable of constituting protected industrial action because the nominal expiry date of the Agreement is 30 September 2023.

[20] The CFMMEU dispute that the action asserted to be happening, impending or probable is:

a. industrial action; and/or

b. is happening, threatened, impending, probable; and/or

c. is being organised by the CFMMEU or the CFMMEU Representatives.

[21] The Conference commenced at 10am on Friday 19 November 2021. Representatives for the CFMMEU attended the conference in person.

[22] At 9:38am as the CFMMEU representatives arrived at the FWC and DP World filed detailed submissions in support of the Application.

[23] After the Conference commenced DP World filed a detailed witness statement supported by a variety of annexures.

[24] The timing of the filing of materials placed the CFMMEU at a disadvantage in responding to the Application. In the course of the Conference the CFMMEU foreshadowed requests for production of documents necessary to properly respond to the Application and sought an adjournment of the determination of the Application.

[25] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148at [133]-[136] the Full Court of the Federal Court noted in relation to section 420 of the FW Act that:

“[133] The legislation does not pursue expedition at all costs. The legislation does not make the determination of the application within two days a complete goal in itself, but requires that the period be taken into account and given weight in deciding what will be a reasonable opportunity for a party to present its case. Expedition does not trump procedural fairness.

[134] The reasonableness of an opportunity to present a case must also be measured against the potential consequences to a party of an order made under s 418. The consequences may be significant. An order under s 418 is a final order. Such an order restricts the ability of persons to engage in conduct that they may assert is lawful conduct. It may force a person to provide labour, or it may compel an employer to provide work to employees. If a person contravenes an order under s 418, the person is liable to the imposition of a penalty pursuant to s 539.

[135] An application under s 418 will almost invariably be brought at short notice. When a respondent seeks an adjournment, it will be necessary for the Fair Work Commission to consider whether an adjournment is necessary to give the respondent a reasonable opportunity to present his or her case and the length of any adjournment that is required for that purpose. The relevant factors will include the extent of the notice given, whether the application should have been anticipated and prepared for, the extent and nature of the material served and the allegations made, the seriousness of the consequences for the respondent, whether the applicant has delayed in bringing the application, the fact that the order under s 418 will be a final order and whether the applicant’s position can be protected by an interim order if necessary.

[136] On the other side, the relevant factors will include the circumstances of the industrial action, the seriousness of its consequences for the applicant and third parties, the urgency of the application, the legislative policy that the determination is ordinarily expected to be made within the two-day period and any prejudice to the applicant and third parties as a result of the adjournment.”

[26] Notwithstanding several adjournments during the conference it became apparent that as a matter of procedural fairness it would be necessary for the determination of the Application to be adjourned and that it was appropriate to do so weighing up all the relevant factors.

[27] It also became apparent that such adjournment would prevent the Application being determined within two days after the Application was made.

[28] As was noted by the Full Court of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [132]:

“[132] Despite the need for expedition, s 420 recognises that it may not be practicable for an application to be determined within the two day period. One of the practicalities is the obligation to give procedural fairness to the respondent. The provision of a reasonable opportunity for a party to present its case may in the circumstances of the particular case mean that the application cannot be determined within the two days. The content of the requirement to give procedural fairness is then affected by the obligation of the Fair Work Commission under s 420(2) to make an interim order that the industrial action stop, not occur or not be organised, subject only to the public interest. The obligation to make an interim order exists regardless of the strength or weakness of the case and regardless of whether the respondent has had a reasonable opportunity to present a case against the making of such an order.”

[29] As I was unable to determine the Application within the period specified, I was required by section 420(2) of the FW Act to make an interim order that the industrial action to which the Application relates stop, not occur or not be organised (as the case may be).

[30] Neither party submitted nor was I satisfied that it would be contrary to the public interest to do so.

[31] Consequently, an interim order issued on 19 November 2021 in PR735982. The parties have meanwhile committed prior to the substantive hearing of the Application to meeting on to have further discussions facilitated by the FWC to resolve outstanding issues identified by DP World in the Application as the trigger for the alleged industrial action.

DEPUTY PRESIDENT

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