DP World (Fremantle) Limited v The Maritime Union of Australia
[2014] FWCFB 19
•3 JANUARY 2014
[2014] FWCFB 19 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
The Maritime Union of Australia
(C2013/7852)
VICE PRESIDENT WATSON | SYDNEY, 3 JANUARY 2014 |
Appeal against decision [2013] FWC 10145 of Commissioner Cambridge at Sydney on 23 December 2013 in matter number C2013/7801 - alleged industrial action - whether interim orders should be issued - permission to appeal granted - appeal allowed - interim orders made - matter remitted for further determination - Fair Work Act 2009 ss.418, 420, 604.
[1] On 30 December 2013, DP World (Fremantle) Ltd (DP World) lodged an appeal against the decision of Commissioner Cambridge given on 23 December 2013 dismissing an application for orders to stop (alleged) industrial action under s.418 of the Fair Work Act 2009 (the Act).
[2] The grounds of the appeal were as follows:
1. Having found that there had "not been sufficient time to permit adequate Hearing of all aspects of the alleged campaign of covert industrial action" (at [13]), the learned Commissioner erred in refusing to make an interim order under section 420 of the Fair Work Act 2009.
2. Further, in refusing to make an interim order under section 420 of the Fair Work Act 2009, the learned Commission erred in that he took into account irrelevant considerations, described as "a variety of reasons including logistical support complications including capacity inadequacies" (at [6]).
3. Further, and in the alternative, having decided to hear and determine the application on a final basis, the learned Commissioner erred in that he found that he was not satisfied that the alleged industrial action to which the "urgent application" was directed meets the definition of industrial action in section 19 of the Fair Work Act 2009 (at [18]).
4. Further, and in the alternative, having decided to hear and determine the application on a final basis, the learned Commissioner erred in that he failed to find that industrial action was happening in the form of:
a. the performance of duties in a manner slower than is customary and required;
b. a ban, limitation or restriction on the performance of shift extensions; and
c. a ban, limitation or restriction on the performance of work on public holidays.
5. Further, and in the alternative, having decided to hear and determine the application on a final basis, the learned Commissioner erred in refusing to make an order under section 418 of the Fair Work Act 2009 (Cth) in that he took into account irrelevant considerations, described as:
a. "little practical efficacy that would likely be obtained from any successful outcome" (at (14]);
b. "it is difficult to contemplate how there might be compliance with an order as sought" (at (14]);
c. "stopping covert industrial action by force of legally binding Order has some inherent difficulties" (at [15]);
d. "some difficulties which can be contemplated with any assessment as to the extent to which covert industrial action would be stopped by an Order" (at [16]); and
e. "concern as to whether Orders to stop covert industrial action will provide any enduring resolution of the underlying, and apparently entrenched animosities that characterise the relationships between employees, their Union, and employers in this industry" (at [17]).”
[3] DP World sought an expedited hearing of the appeal on the following bases:
1. The application in the proceedings relates to alleged industrial action which is happening.
2. The evidence admitted in the proceedings below demonstrated that the industrial action is having a significant impact, including “obstruction, interruption and delays to ... operations”, “significant delays with vessel departures and berth congestion”, “serious customer complaints”, “national berth delays”, “labour cost increases” and “diesel and energy cost increases” (Exhibit 1 at [70]).
3. Given the requirements of s.420(1) to determine applications within 2 days after they are made as far as practicable, it is appropriate for an appeal against a decision to refuse an order to be dealt with in an expeditious manner.
[4] The appeal was listed for hearing on 2 January 2014. At the hearing Mr Y Shariff of counsel appeared for DP World. Mr L Edmonds appeared for The Maritime Union of Australia (the MUA).
[5] DP World sought the following orders arising from the appeal that:
1. permission to appeal be granted;
2. the appeal be allowed;
3. the decision of Commissioner Cambridge be quashed;
4. the Full Bench make an interim order in the terms sought in the application; and
5. the Full Bench allocate the matter to a member of the Full Bench for final hearing and determination.
[6] The MUA indicated that it did not oppose these orders being made concerning the disposition of the appeal, although it disputed the existence of the alleged industrial action. It has foreshadowed strong opposition to the making of any final orders sought by DP World pursuant to s.418 of the Act after it had the opportunity to prepare a more detailed case.
[7] We note that DP World had, essentially, contended before the Commissioner the alleged industrial action, the subject of the application had manifested itself in three discrete ways from about October 2013, culminating in a shortage of volunteers to work on certain days over the Christmas/New Year period. The focus of the Commissioner’s decision appears solely or principally to have concerned the question of volunteers over that period, but did not determine the other two components. He declined to make any interim order despite finding that he was unable to hear the matter in its entirety. The Commissioner indicated he had “decided to focus upon the most time sensitive aspect of the current application and determine that facet of the application and in doing so anticipate that other aspects of the matter might be dealt with in other proceedings at a more convenient time”. The Commissioner concluded that, on balance, he was not satisfied the alleged industrial action to which the application was directed met the definition of industrial action contained in s.19 of the Act. It appears that he proceeded to refuse the application for the orders sought by DP World and concluded the proceedings on that basis.
[8] Having regard to the submissions made to us in the appeal proceedings and the subject matter of the appeal, we are satisfied that it is in the public interest to grant permission to appeal. We are also satisfied that the decision under appeal contains errors in the application of s.420 of the Act because the Commissioner, having found it was impracticable to determine all components of the application within two days of the making of the application, did not make interim orders that the alleged industrial action, to which the application related, stop, not occur or not be organised. In this regard, see for example, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Pty Ltd [2013] FCAFC 148 at 132-133 per Katzmann and Rangiah JJ. It was not argued that it would be contrary to the public interest to make interim orders. Nor do we consider that there is any basis for such a conclusion.
[9] Accordingly, we allow the appeal, quash the decision under appeal and make the interim orders lodged by DP World in connection with the appeal. The matter is remitted to Vice President Watson to consider further whether to make final orders in the matter. The interim orders will remain in place until the application is determined.
VICE PRESIDENT WATSON
Appearances:
Mr Y Shariff of counsel for DP World (Fremantle) Limited;
Mr L Edmonds (by telephone) for The Maritime Union of Australia.
Hearing details:
2014.
Sydney (and telephone to Perth):
January, 2.
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