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

[2015] FWC 1447

[2015] FWC 1447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

DP World (Fremantle) Limited
v
Maritime Union of Australia, The
(C2015/1838)

VICE PRESIDENT WATSON MELBOURNE, 3 MARCH 2015

Application by DP World (Fremantle) Limited that industrial action by employees stop, not occur and not be organised - whether industrial action is protected industrial action - Fair Work Act 2009 s.418.

[1] This decision was edited from the transcript on 26 February 2015. It concerns an application pursuant to s.418 of the Fair Work Act 2009 (the Act) for an order that industrial action by employees of DP World (Fremantle) Limited (DP World) stop, not occur and not be organised. The employees concerned are employed by DP World at its terminal at Fremantle, and are members, or eligible to become members of The Maritime Union of Australia (MUA). The order is sought against the MUA, including its office holders and those of its delegates who are employees, and employees of DP World.

[2] The application was made by DP World on 25 February 2015 and listed for urgent hearing on 26 February 2015. During the hearing Mr D Perry, of counsel, appeared for DP World, and Mr L Edmonds appeared on behalf of the MUA. Evidence was given for DP World by Mr M Hulme.

[3] Under s.418 of the Act the Fair Work Commission (the Commission) is required to make an order if it appears to the Commission that industrial action by one or more employees or employers, that is not protected industrial action, is happening, is threatened, impending or probable or is being organised.

[4] It is clear that industrial action is being organised pursuant to a notice of intended industrial action issued by Mr Evans of the MUA dated 8 December 2014. The notice specifies the various forms of industrial action that are intended to be taken, including at point 1, a ban on the performance of overtime of an indefinite duration from 12 December 2014.

[5] It also appears that industrial action by members of the MUA is threatened, impending and probable as a result of that notice and the position consistently advanced by the MUA that work on a public holiday is overtime and therefore subject to the notice of 8 December. That position continued to be advanced at the hearing of this matter.

[6] The critical issue, as it appears to me, is whether that industrial action is protected industrial action, because if it is protected industrial action then there is no obligation and no basis under s.418 to make an order that that industrial action stop. Whether the industrial action is protected action or not depends on whether the work that is proposed to be allocated to employees next Monday, 2 March, Labour Day in Western Australia, is overtime and therefore covered by the notice of 8 December.

[7] If it is not overtime for the purposes of the enterprise agreement, and insofar as it has incorporated the Stevedoring Award, then the notice does not apply to it and any organisation or impending industrial action on the Labour Day holiday in accordance with the notice, would not be protected industrial action.

[8] Whether the work on Monday, 2 March is overtime or not depends on the construction of the enterprise agreement.  The principles for interpreting enterprise agreements are well established.  I do not repeat them now.  They require the construction consistent with the context of the agreement, based primarily on the wording of the agreement, and with an approach to give effect to the mutual intent of the parties in making the agreement.

[9] In my view, the enterprise agreement deals with the question of ordinary hours of work, overtime and work on public holidays in separate provisions.  They are dealt with in part A of the agreement and are modified by the provisions of part B, especially in relation to payment.  However, in my view it is clear on a construction of the agreement, that work on public holidays is not overtime for the purposes of the agreement.

[10] Overtime in its normal conception, and consistent with the wording of the agreement, is work outside the ordinary rostered hours of work.  There are unusual arrangements for rostering and allocation of work to employees covered by this agreement and the Stevedoring Award, depending on the needs of the business, primarily ship movements.  But work on rostered shifts or allocated shifts for employees, on any day of the week, consistent with and within the scope of the 35-hour a week average, whether it be Monday to Friday, on a weekend or on a public holiday, is not overtime for the purposes of the agreement.

[11] Additional hours that are required to be worked, such as additional unrostered shifts, work outside the 35 hour average, and shift extensions either before or after the shift, are overtime. That is not what we are dealing with here.  We are dealing with a situation where the company proposes to allocate normal rostered shifts in accordance with its business requirements from 2pm on Monday, 2 March. That shift—and other shifts that may be allocated on that day—are part of the ordinary hours of work and subject to penalty payments under the Public Holidays clauses of the enterprise agreement.

[12] The Public Holiday clauses set a premium for working on that public holiday but the setting of a premium does not make that work overtime for the purposes of the agreement.  It is clear in normal conceptions, in drafting of awards and agreements, that public holiday premiums and weekend premiums are different from overtime premiums.

[13] The MUA makes reference to the wording of clause 13.1 of the agreement and argues that clause 13.1 and 13.3 mean that payments for public holidays are a form of overtime payment and work on public holidays is a form of overtime.  I reject that interpretation and I do not believe that it accurately reflects the true meaning and intent of the agreement.

[14] It follows from that analysis that any industrial action on Monday, 2 March, would not be covered by the Notice of Protected Industrial Action issued on 8 December 2014.  It would not therefore be protected industrial action and insofar as it may be being organised, threatened, pending or probable, would require me to issue an order that the industrial action not occur and not be organised.

[15] I propose to issue such an order.  I propose to do so at approximately midday tomorrow.  However, prior to midday tomorrow I will consider whether there is a necessity to issue the order and whether the circumstances in this matter have altered.  If I receive advice from the MUA prior to midday tomorrow that it considers that its notice of 8 December 2014 does not authorise protected industrial action for the rostered shift on Monday, 2 March, and that it has advised its members employed by DP World at Fremantle to that effect, namely that the 8 December notice does not authorise industrial action on Monday, 2 March, I will not issue the order.

[16] If I issue the order it will be substantially in the terms sought by the company.  However in the light of the negotiations that are occurring for a new enterprise agreement and the progress that has been made in relation to those negotiations, I propose to limit the period of that order to a period of six weeks from tomorrow.

[17] I will issue this decision, edited from the transcript in this matter, and I will issue the order, as I have indicated, subject to any notice of the type I have indicated from the MUA.

[18] Prior to midday on 27 February 2015 Mr Edmonds notified the Commission that the MUA would advise its members at DP World that the existing notice of protected action of 8 December 2014 does not apply to the normal work arrangements on 2 March 2015 and that they should make themselves available to work, consistent with the provisions of the enterprise agreement.

[19] In light of the above, I did not consider that it was necessary to issue an order under s.418 of the Act.

VICE PRESIDENT

Appearances:

Mr Perry of counsel for DP World (Fremantle) Limited.

Mr Edmonds for The Maritime Union of Australia.

Hearing details:

2015.

Melbourne—Video Conference Link to Sydney and Perth.

26 February.

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