DP World (Fremantle) Limited v Maritime Union of Australia, The

[2010] FWA 6100

[2010] FWA 6100

FAIR WORK AUSTRALIA

DECISION

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

DP World (Fremantle) Limited
v
Maritime Union of Australia, The
(C2010/4356)

COMMISSIONER CLOGHAN PERTH, 10 AUGUST 2010

An application to stop industrial action by employees who work for DP World Fremantle Container Terminal, Western Australia.

[1] On 20 July 2010 at 5:53pm DP World (“the Applicant/Employer”) made application for an order to stop unprotected industrial action pursuant to s.418 of the Fair Work Act 2009 (“the Act”).

[2] The persons against whom the order was sought are:

• the Maritime Union of Australia (“the MUA”); and



• each employee of DP World (Fremantle) and DP World Australia Limited whose terms of employment are governed by the DP World Fremantle Enterprise Agreement 2008 and who are members of the MUA (“the Employees”).

[3] The application was heard on 22 July 2010. I issued an Interim Order (PR999662) on 23 July 2010 with reasons for that Interim Order to follow.

GENERAL BACKGROUND

[4] DP World is a stevedoring company which contracts with shipping and transport companies for the loading, unloading and storage of ship containers. DP World operates a terminal at the Port of Fremantle to carry out its stevedoring operations.

[5] The Fremantle terminal operates 24 hours a day, 7 days a week. Operations at the terminal are, to a great extent, determined by vessels arriving and departing from the Port.

[6] There are approximately 250 stevedoring employees employed by DP World at the Fremantle terminal who have their conditions of employment, in part, regulated by the DP World Fremantle Enterprise Agreement 2008.

[7] Operations are based around three eight (8) hour continuous shifts commencing at 6:00am, 2:00pm and 10:00pm.

BACKGROUND

[8] Following the loss of a key shipping contract on 21 March 2010, DP World Fremantle reassessed its operations in view of reduced container throughput and revenue.

[9] One feature of DP World’s reassessment of operations at the Fremantle terminal, was to introduce a new bonus scheme which is named the Safe Productivity Bonus Scheme (“Fremantle Bonus Scheme”).

[10] The new Fremantle Bonus Scheme is intended to provide financial rewards to employees achieving high levels of performance and working in a safe manner, when the Employer is operating profitably.

[11] The previous bonus scheme, which had operated since July 2000, the Employer asserted was: unsustainable following the loss of the key contract; not linked to performance or productivity; and the only remaining one, of its type, around Australian ports.

[12] Discussion on the introduction of the new bonus scheme commenced on 11 May 2010 at a special meeting of the Employee Representative Committee (“ERC”). At the meeting, a representative of the MUA was present. A further meeting occurred in June 2010 at which a MUA representative was not in attendance. Following feedback from the ERC, and allegedly the MUA, all employees were advised on 5 July 2010 that the new Fremantle Bonus Scheme would become operative from Monday 12 July 2010. The ERC did not endorse the new bonus scheme but made comments and expressed concerns at its introduction.

[13] The new Fremantle Bonus Scheme commenced on 12 July 2010.

[14] It was not contested that the old bonus scheme, and the new Fremantle Bonus Scheme, were discretionary and outside the terms of the DP World Fremantle Enterprise Agreement 2008.

[15] The “foundations” of the application are as follows:

• since 12 July 2010, it can be demonstrated that work has, and is, being carried out in a manner differently to that prior to 12 July 2010;



• the difference since 12 July 2010 is demonstrated by:

• a decline in crane lifting rates;

• an increase in truck turnaround times;

• an increase in the time taken to “complete” vessels; and

• unavailability for overtime.

Collectively, this difference is described by the Applicant as a “go slow” and an “overtime ban”; and

• if it is demonstrated that these actions have occurred, are continuing and are likely to continue, then it is industrial action which is unprotected and the Tribunal must make an order that it stop, not occur and not be organised.

[16] While not imperative, the Employer put to the Tribunal that the cause or “motive” of this “go slow” and “overtime ban” is the introduction of the new Fremantle Bonus Scheme. The Applicant is not required to prove a connection between the new bonus scheme and the “go slow”, but did produce evidence that, for some at the Fremantle terminal, there is a link between the two actions.

[17] Further and finally, by demonstrating a link between the two actions of the new bonus scheme and the “go slow” and “overtime ban”, the Applicant is essentially putting to the Tribunal that, while there may be other contributing factors to the decline in crane lifting rates, increase in truck turnaround times and time taken to complete vessels, the overriding and logical conclusion which I should accept, is that the manner in which work is carried out post 12 July 2010 is intended to penalise the Employer for changing the bonus scheme.

WHAT ARE THE SPECIFIC ACTIONS COMPLAINED OF BY THE APPLICANT?

Gross Moves Per Hour (GMPH)

[18] GMPH measures the number of container moves divided by crane working hours per shift 1.

[19] Since 12 July 2010, there has been a decline in average GMPH from 21.54 to 15.3 2.

[20] The reduction in GMPH is approximately 71%. The enterprise agreement provides a benchmark of 25 container lifts per hour.

Truck Turnaround Time (TTT)

[21] Between 1 April 2010 and 9 July 2010, TTT was approximately an average of 28 minutes on day and evening shifts 3.

[22] Since 12 July 2010, the TTT has averaged 51 minutes across the same shifts 4. The decline in TTT is approximately 55%.

Time taken to complete vessels

[23] Since 12 July 2010, the time taken to complete the same vessel previously has increased as follows:

Since 12 July	Pre 12 July	Pre 12 July
Windarra	44.75 hrs	30.50 hrs	24.92 hrs
Swan River Bridge	50.75 hrs	33.83 hrs	27.42 hrs
Valery Schulte	24.80 hrs	13.92 hrs	--

“Overtime Ban”

[24] For the six weekends prior to 17-18 July 2010, the Employer had insufficient volunteers to work overtime. The working of overtime enables DP World to manage its labour requirements for completing vessels.

[25] On the weekend of 17-18 July 2010, immediately following the introduction of the new bonus scheme, DP World was not able to fill the shift labour requirements with the required number of employees with the requisite skills.

Miscellaneous Actions

[26] Mr Guy observed, or had reported to him, the following conduct which was noticeable:

“(a) driving cranes slowly;

(b) driving forklifts very slowly;

(c) driving ITVs very slowly;

(d) highlighting of non important maintenance issues;

(e) refusal to drive forklifts in RTG area on safety grounds when no legitimate safety concerns given the clear line of sight and space to work;

(f) operating RTGs slowly and driving in a pattern that takes longer; and

(g) sitting around in machines and not servicing trucks while waiting for smoko to commence and/or arriving late and finishing shifts early without completing trucks under their machines.” 5

IMPACT OF SPECIFIC ACTION COMPLAINED OF BY THE APPLICANT

[27] DP World set out for the Tribunal additional costs associated with “go slow” and the “overtime ban”. In addition, the Applicant is incurring reputational damage which may result in a loss of market share through loss of contracts. Transport carriers have also experienced additional costs, in a variety of ways, because of the “go slow” which they are unable to pass onto their clients.

IS THERE MORE THAN ONE EXPLANATION FOR THE DECLINING PERFORMANCE OF THE KEY INDICATORS AND OVERTIME BAN?

[28] Through witness evidence, particularly Mr Guy and Mr Holland, the Applicant put to the Tribunal that there could be no other explanation for the declining performance of the key indicators, than the actions taken by employees.

[29] Mr Edmonds, for the MUA, in all areas, cast doubt on such unequivocal written witness statement and oral evidence. To be fair to the witnesses, in some areas, they agreed that other factors had an impact on the declining performance. However, on balance, I am satisfied that the preponderant explanation is the actions of the employees which has been described as a “go slow” and overtime ban.

[30] In reaching this conclusion, I have considered not only the data provided to the Tribunal but the direct observations of Mr Guy 6 , the direct evidence of Mr Coffey7, Labour Superintendent, and the evidence and observations of Ms Mooney, Transport Coordinator.

[31] Finally, I note the objections of Mr Edmonds regarding what he described as “voluminous amounts of hearsay”. I agree with Mr Edmonds about the potential for inaccuracy regarding “hearsay upon hearsay”, and the Tribunal should be cautious about such statements. However, to exclude hearsay evidence entirely, would deny the Tribunal of being informed of the matters which may assist it in determining an application. I take the view, as I stated in the hearing, what matters most is the “weight” which the Tribunal should give to such evidence.

[32] Having heard all the witnesses for the Applicant, I found no reason to disbelieve their evidence in relation to what the truck drivers who had heard from DP World employees, or the truck drivers’ bosses had heard from their truck drivers on the reason for the dispute. This hearsay was consistent with what was happening at the terminal through declining performance data and oral evidence.

IS THE ACTION COMPLAINED OF BY THE APPLICANT INDUSTRIAL ACTION FOR THE PURPOSES OF THE ACT?

[33] For the purposes of the hearing and this Decision, the material provisions of the Act are s.19(1)(a) and (b) which provide:

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) ...

(d) ....

[34] From the evidence, both documentary and oral, it is clear that the performance of work is being carried out differently from its customary nature. A “go slow” is a restriction or limitation. Such action can be described as a deliberate, employee-imposed restraint on the speed in which work is carried out. Employees, I am satisfied, in this application, have applied their own “governor” to the speed at which work is being carried out -- which is significantly less than prior to 12 July 2010.

[35] Further, I am satisfied from the evidence that the abnormal unavailability of employees for overtime is a “ban”, “restriction” or “limitation” in their ordinary meaning. While I accept that employees, who regularly work overtime, have valid reasons, to not work overtime, on some occasions, I am unable to concur with the view that it is just the “long arm” of coincidence on this occasion. This is especially so, when it is the first time in five (5) years, as described by Mr Coffey 8.

[36] In summary, I am satisfied that the action complained of by the Applicant, taken as a whole, is industrial action within the meaning of the Act. In arriving at this conclusion, I should note that there was no evidence to demonstrate that the exclusion provisions in s.19(2) were applicable, in particular, safety concerns 9.

IS THE ACTION COMPLAINED OF BY THE APPLICANT PROTECTED ACTION?

[37] The nominal expiry date of the DP World Fremantle Enterprise Agreement 2008 is 30 June 2011. Accordingly, the action of the employees is not protected industrial action and inconsistent with the provisions of s.417(1) and (2) of the Act set out below:

(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a) an enterprise agreement is approved by FWA until its nominal expiry date has passed; or

(b) a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

(2) The persons are:

(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

INTERIM CONCLUSION

[38] Section 418(1) of the Act provides:

(1) If it appears to FWA 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;

FWA 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.

[39] Accordingly, the Tribunal must order that the unprotected industrial action stop, not occur or not be organised for a period.

[40] Importantly, pursuant to s.418(2), the Tribunal is alerted to s.420 which provides that, as far as is practicable, the Tribunal must determine an application within two (2) days. Further, if the Tribunal is unable to determine the application within that period, Fair Work Australia must, unless contrary to the public interest, make an interim order that the unprotected industrial action stop, not occur, or not be organised, as the case may be.

[41] The nature of a s.418 application requires an expedited process. Such an expedited process often brings forth, as it did on this occasion, questions about what proper service is and the lack of instructions from clients. While the Tribunal, in performing its functions and exercising its powers must be quick, informal and avoid unnecessary technicalities, it must also be fair to the parties subject to the application (s.577). It is for this reason, that I consider an interim order appropriate, not withstanding difficulties with the expeditious process, and not contrary to the public interest.

SHOULD THE MUA BE SUBJECT TO THE ORDER?

[42] DP World sought in its application that the MUA, its officers, employees, agents and delegates be bound by any s.418 orders of the Tribunal.

[43] The reasons submitted by the Applicant that the MUA be bound by any orders of the Tribunal can be summarised as follows:

• the employees subject to the industrial action are eligible to be members of the MUA and a majority are;



• the MUA is a party principal to the DP World Fremantle Enterprise Agreement 2008; 10



• the MUA has access to the site;



• the MUA participates on the Employee Representative Committee;



• the MUA, when representing employees, does not distinguish between members and non-members;



• the MUA is a conduit of information for employees;



• the MUA addresses employees regularly on site;



• the MUA were involved in discussions and provided feedback regarding the new Fremantle Bonus Scheme;



• the MUA were advised, prior to all employees, of the commencement of the new bonus scheme; and



• the discussion which occurred between Mr Adrian Evans, Deputy Branch Secretary on 20 July 2010 and the Employer.

[44] Mr Edmonds, for the MUA, by and large, did not contest the involvement of the MUA at the DP World Fremantle terminal, but was of the view that it was proper and in accordance with the employees’ enterprise agreement. However, he stated that there was no evidence to demonstrate that the MUA was complicit, encouraged, incited or, in any way, engaged in the action taking place on the terminal. 11

[45] With regards to the involvement of the MUA, it was uncontested that it occurred on two occasions. Firstly, Mr Evans, at the request of his national office. Second, Messrs Cain and Evans 12 who were present at a meeting of day shift employees during “smoko” on 16 July 2010. On both occasions, given the circumstances, I suspect at the instigation of the Employer.

[46] In contrast, Mr Casperz for the Employer, submitted to the Tribunal that an inference should be drawn from the MUA’s role in the workplace and the unprotected industrial action. Further, the MUA is an employee organisation for the purposes of the Act and, with that, are rights and responsibilities. Finally, and at another level, being a party principal to the employees’ enterprise agreement brings with it enforceable rights, responsibilities and obligations. Put shortly, an inference can be drawn that the MUA had the power to “fix” the industrial action, but has “just decided to acquiesce with what’s going on” 13.

[47] Mr Casperz, for the Employer, in concluding submissions conceded that the Applicant’s case can be described as “circumstantial...where it seeks that inferences can be drawn from...proven facts” 14. As I have already concluded, having examined critically the documentary and oral evidence, the timing of declining performance outcomes was not pure coincidence, with the introduction of the new bonus scheme. The declining performance outcomes, for the most part, can be rationally explained by the unprotected industrial action of the employees, as a result of a “go slow” and an “overtime ban”.

[48] However, when I critically examine the factual elements relating to MUA from which to draw the conclusion suggested by the Applicant (that it should be bound by the order) they are all, standing alone or together, normal everyday activities of an employee organisation. In my view, it is accepted as true and uncontroversial, that the MUA, and for that matter, other unions: represent employees in the workplace; address employees in the workplace; interact with management; participate in workplace committees; and involve themselves in the resolution of disputes.

[49] The Applicant is putting to the Tribunal that, as a result of these accepted and uncontroversial practices, I should make an adverse inference that the MUA is involved in the industrial action and, consequently, should be bound by any order issued by the Tribunal.

[50] With the exception of one telephone call from an MUA official who volunteered to assist in the dispute, and a meeting of day shift employees where two MUA officials were present, there was no other related direct evidence provided by the Employer, which may have assisted in the cogency of the Applicant’s submissions. In the absence of any evidence, beyond the unquestioned role of the MUA in the workplace, it would be unreasonable, unfair and unfitting to infer that the Union is “playing a role in the industrial action and therefore should be bound by the orders sought” 15. To adopt such a low threshold for the MUA of deducing their customary role only, in the workplace, as sufficient grounds to be bound by the orders, is not, in my view, a legitimate process of making an inference from the primary facts.

[51] These are the reasons for the Interim Order (PR999662) issued on 23 July 2010.

COMMISSIONER

Appearances:

Mr T Casperz with Ms K Groves from Miniter Ellison for the Applicant

Mr L Edmonds from W.G. McNally Jones Staff for the Respondent

Hearing details:

2010:

Perth

22 July

 1   Exhibit A1

 2   PN 120

 3   Exhibit A1

 4   Exhibit A1

 5   Exhibit A1 - para 36 and PN 231 and PN 271

 6   Exhibit A1 para 36

 7   PN 1057 and PN 1058

 8   PN 1058

 9   PN 250

 10   Exhibit A2 and evidence of Mr Holland

 11   PN 1238

 12   PN 187 and 188

 13   PN 1217

 14   PN 1197

 15   PN 1196

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