DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 4708

[2019] FWC 4708

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 Brisbane Pty Ltd T/A DP World Brisbane; DP World Sydney Limited; DP World Melbourne Limited
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2019/4122)

COMMISSIONER SPENCER BRISBANE, 8 JULY 2019

Alleged industrial action at DP World Australia Container Stevedoring Terminals at the Port of Brisbane, Port Botany and the Port of Melbourne.

Introduction

[1] The following decision was released to the parties on Friday night, on the basis that an urgent decision was required, for the certainty of the parties. As communicated to the parties at the conclusion of the proceedings, I reserved the right to publish an edited version of this decision.

[2] This decision relates to an application made pursuant to Section 418 of the Fair Work Act 2019 (the Act) brought by DP World Brisbane Pty ltd T/A DP World Brisbane, DP World Sydney Ltd and DP World Melbourne Ltd, collectively referred to by the parties in this matter as DP World (the Applicants). The other party to the application was named as the Construction, Forestry, Maritime, Mining and Energy Union trading as the Maritime Union of Australia (CFMMEU/the Respondent).

[3] My Chambers was notified of the application at 9pm on 4 July 2019. At that time an order for substituted service as applied for was made and Directions were set for the Applicant to file any further relevant material and for the Respondent to respond to such on the morning of 5 July 2019. Each of the Applicant DP World companies is bargaining for proposed Enterprise Agreements.

[4] The Applicant filed an outline of submissions and a witness statement of Mr Scott Eadie, Stevedoring Manager of the Fisherman Island Brisbane Terminal of DP World. The witness statement was sworn at the hearing and was unchallenged. The application relates to the three operations of DP World being the Port of Brisbane, Port Botany and the Port of Melbourne. During the proceedings, the Respondent sought to have evidence given my Mr Warren Smith (Assistant National Secretary of the MUA Division of the CFMMEU).

[5] The Applicants sought an Order pursuant to Section 418(1) of the Act across the three sites to stop any industrial action as notified until 14 July 2019.

[6] The matter was listed for hearing 12:30pm on 5 July 2019.

[7] The Applicants were represented by Mr Ford of counsel and the Respondent by Mr Guy of counsel.

[8] Both counsel were given permission to appear pursuant to Section 596(2) of the Act.

Relevant Legislation

[9] Section 418 of the Act provide:

“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.”

[10] Section 436 of the Act provides:

“Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note:          Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”

[11] Section 437 of the Act provides:

“Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order ) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time , see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[12] Section 408 of the Act provides:

“Protected industrial action

Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:

(a) employee claim action for the agreement (see section 409);

(b) employee response action for the agreement (see section 410);

(a) employer response action for the agreement (see section 411).”

[13] Section 409 of the Act provides:

“Employee claim action

Employee claim action

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(c) meets the common requirements set out in Subdivision B; and

(d) meets the additional requirements set out in this section.

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part) .

Unlawful terms

(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

(4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.”

[14] Section 459 of the Act provides:

“Circumstances in which industrial action is authorised by protected action ballot

(1)  Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c)  more than 50% of the valid votes were votes approving the action; and

(c) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii)  if the FWC has extended that period under subsection (3)--during the extended period.

Note:          Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2)  If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3)  The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b)  the period has not previously been extended.

Background and Submissions

[15] In summary terms, the Applicant’s case was that various forms of the authorised protected industrial action (as per the protected action ballot orders made by Deputy President Bull on 12 February 2019) had not been taken at the various sites. Specifically, the Applicant’s representative argued that a range of the proposed protected industrial action had not been taken during the 30 day period and therefore now was not available to the Respondent and was to be considered ‘stale’. Mr Ford set out that this position was in accordance with the majority of the Full Bench decision in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union and Another as set out below. 1

“Consistently with the purpose of s 459(1) made apparent by its first three requirements, the fourth requirement also addresses the same purpose, namely to prescribe the requisite nature and quality of the authorisation given by employees. What the fourth requirement seeks to do is to ensure that the authorisation which has been given by employees for the taking of particular industrial action remains current, in the sense that it continues to reflect the will of the majority of employees. Accordingly, an authorisation for the taking of prospective and particular industrial action not acted upon by the employees within 30 days of the declaration of the result of the ballot, is rendered ineffective by s 459(1)(d) unless the 30 day period has been extended by the Commission under s 459(3). By that means a temporal limitation is placed on the authorisation given by employees through the ballot, so as to address the possibility that the will of the majority of employees to take particular industrial action may have evaporated prior to that industrial action taking place.”

[16] Most of the action had not been taken due to an agreed ‘ceasefire’ between the parties. In specific terms, Mr Ford referred to the details included in the application as follows to submit that, the use of the current notifications of one hour and four hour stoppages as notified would be unprotected industrial action when considered against the authorised action of the protected action ballot orders.

“The periods of 30 (and 60) days following the declaration of the results of the relevant protected action ballots have now passed. During those periods, no employee at the relevant Terminal engaged in the following forms of industrial action which were authorised by employees in the protected action ballots conducted pursuant to the relevant Order:

a) at the Brisbane Terminal: an 8, 12 or 24 hour stoppage;

b) at the Sydney Terminal, a 4, 8, 12 or 24 hour stoppage; or

c) at the Melbourne Terminal, a 4, 8, 12 or 24 hour stoppage.”

[17] The application also set out:

“On 28 June 2019; 2 July 2019 and 4 July 2019 various Branch officials of the MUA gave notices to DPWorld of protected industrial action by Employees who are CFMMEU members at each individual Terminal, in respect of stoppages which are to commence at each Terminal as follows:

a) at the Brisbane Terminal: 12 x 4 hour stoppages, to commence at 6:00am on 8 July 2019 and cease at 6:00am on 10 July 2019;

b) at the Sydney Terminal: 48 x 1 hour stoppages, to commence at 6:00am on 11 July 2019 and cease at on 6:00am on 13 July 2019; and

c) at the Melbourne Terminal: 96 x 1 hour stoppages commencing at 6:00am on 10 July 2019 and ceasing at 6:00am on 14 July 2019”

[18] The Applicant’s submissions (included here for efficiency in providing a documented decision immediately after the hearing) stated:

“The notified action which is subject to this application are a series of stoppages set out in the Notices:

(a) at the Brisbane Terminal: what are purported to be a series of four-hour stoppages between 0600 on 8 July 2019 and ceasing at 0600 on 10 July 2019 (SDE-2 at pp. 12-13);

(b) at the Sydney Terminal: “48 consecutive one hour stoppage of work commencing on Thursday 11 July 2019 at 6am” (SDE-2 at p. 14); and

(c) at the Melbourne Terminal: “48 consecutive x 1 hour stoppages of work commencing on the hour at 6am on 10 July 2019 and ending at 6am on 12 July 2019”, and “48 consecutive one hour stoppages of work commencing at 6.00am on 12 July 2019” (SDE-2 at pp. 16-17).

(the Stoppages).” 2

[19] The industrial action notified to commence on Monday, 8 July 2019 is plainly industrial action which is threatened, impending, probable, and being organised by the CFMMEU. DP World seeks orders that each of the Stoppages not occur and not be organised, as they would not be protected industrial action. It was said by the Applicant that the basis for this was:

“That they are:

(b) in truth, forms of industrial action which did not commence within 30 days of the declaration of the results of those ballots; and

(c) hence, not “authorised by a protected action ballot”.

For industrial action to be protected “employee claim action”, among other requirements it must be authorised by a protected action ballot: FW Act s 409(2). This cannot be the case unless the particular form of industrial action appears on the ballot: FW Act s 459(1)(a). The protected action ballot process is intended to be “a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action”: FW Act s 436.

Against that backdrop, one must consider what a reasonable person in the position of the employees who voted in each of the ballots would have understood themselves to be voting to authorise. In this case, they were presented with a “menu” of stoppages of lengths between 1 and 24 hours. The language relating 1 hour stoppages gave no explicit sign that employees might be authorising a very lengthy stoppage. DP World submits that in the context of the questions posed to employees as a whole, they would not have understood that by authorising the taking of 1 hour stoppages, in whatever template form of words it was expressed, they understood that they might be authorising the Union to notify stoppages of multiple days’ duration.

The employees did, of course, authorise the taking of more lengthy strike action in the form of, inter alia, 24 hour stoppages. Here, however section 459(1)(d) of the FW Act is relevant. For industrial action to be “authorised by a protected action ballot” and hence constitute protected employee claim action, it must commence within 30 days1 after the declaration of the results of the ballot: FW Act s 459(1)(d).

…

These provisions are of critical importance in the scheme of protected industrial action as a collective and democratically authorised process. They prevent employees from being placed in situations where, as a result of a notification given by their bargaining representative, they are expected to stop work and lose pay, notwithstanding that they may no longer support the relevant action being taken.

The situation at the Terminals, in brief, is as follows. No employee at the Brisbane Terminal has to date engaged in a stoppage of greater than 4 hours in length, and no employee the Sydney or Melbourne Terminal has engaged in a stoppage of more than 1 hour’s duration (SDE at [10]-[11]). The authorisations given by employees for such action in February-March 2019 is deemed by the FW Act to be “stale”, and unsafe to rely on as authorising those forms of action as the Union’s democratic mandate to organise such action may well have “evaporated” in the intervening months. Nonetheless, by notifying what purport to be series of many stoppages of the longest or only duration available, the Union has effectively sought to reinstate a right to take multiple, daylong stoppages that the FW Act provides it has lost. The Union has, in truth, notified action that by inaction it has lost the ability to organise, and what is notified is outside the scope of the protected action which remains available.” 3

[20] The relevant terms of the protection ballot orders as made by Deputy President Bull included authorisation, for the Brisbane site:

An unlimited number of stoppages of work of 4 hours duration which may be organised or arranged in consecutive periods” 4

For the Sydney and Melbourne sites:

“An unlimited number of stoppages of work of 1-hour duration which may be organised or arranged in consecutive periods.” 5

[21] Mr Ford argued that in notifying effectively 24 hour stoppages on the basis of consecutive four hourly or one hourly stoppages, the Respondents were improperly notifying a series of 24 hours stoppages in each port has evaporated as they were not used during the 30 day period. He submitted that this form of protected industrial action was no longer available by operation of Section 459(1)(d) which ensures that employee authorisation to engage in a particular form of action remains current on the basis that the particular form of action to be taken or commenced within the 30 day or 60 day period and where such has not been taken it cannot be taken as protected employee claim action. The Respondent argued that the use of the current stoppages does not comply with Section 436 of the Act which requires a fair simple and democratic process to allow for employees to clearly understand what they were voting for.

Conclusion

[22] It is noted that these protected action ballot orders were the subject of decisions of Deputy President Bull 6 and on appeal before the Full Bench7 in relation to whether a longer notification period (pursuant to ss.414(2) and 443(5) of the Act) and whether on the basis of exceptional circumstances, an extended period should be granted. In Deputy President Bull’s decision it noted:

“[2] The applications were dealt with together as provided for under s.442 of the Act. The draft orders provided by the CFMMEU propose that various questions relating to proposed industrial action be asked of CFMMEU’s members at each port. The DP World Brisbane draft order, for example, includes proposed industrial action of unlimited one hour stoppages and unlimited number of stoppages of 24 hours duration which may be arranged in consecutive periods.” 8

[23] Despite these proceedings, the Respondent agreed that no objection was taken to the form of the proposed questions that formed part of the questions to be voted on in authorising the protection industrial action.

[24] The Respondent expressed that caution should be exercised in relying on exhibits 2,3 and 4 being the emails provided by Mr Smith (Assistant National Secretary of the MUA Division of the CFMMEU) associated with reports of the meetings of employees in Melbourne, Sydney and Brisbane to endorse taking this further action. The Union through Mr Smith’s evidence confirmed the views of the members in authorising the industrial action and providing an explanation to employees of why consecutive one hour or four hours of industrial action periods were being utilised. Reference was made in these emails that it was necessary to use such periods due to only these forms of industrial action remaining active, as other periods of industrial action in the protected action ballot order had not been undertaken and were not available, due to the agreed ‘ceasefire’.

[25] In terms of the Section 418 Order sought, the earliest form of the notified industrial action was to commence on Monday, 8 July 2019 with the last period finishing on 14 July 2019. The Order was sought for the period concluding on 14 July 2019. There was no objection that the industrial action is clearly threatened, impending and probable, but was argued as protected industrial action by the Union.

[26] The Applicants argued that a reasonable person at the sites would not understand that the endorsed action of unlimited one hour or four hour stoppages was to be applied on a consecutive basis in this way. The Applicants submitted that the Commissions interpretation of the notified industrial action as to whether it formed protected industrial action must be considered in relation to the total nature of the endorsed action available to the employees.

[27] The Applicant argued that neither it nor the Respondent employees would reasonably anticipate that the one hour stoppages would be utilised to undertake in effect 24 hour stoppages when the proposed questions allowed for the endorsement of consecutive 24 hour stoppages, also in the ‘menu’ of available original protected industrial action.

[28] The Respondent argued in response to the Applicant’s objection to the industrial action being applied in this way on a protected basis that there was no complaint from any stevedore employee to the interpretation of the authorised protected industrial action to be used in this way. No case authority was referred to that these rolling one hour or 4 hour stoppages could not be used in this manner on the ordinary meaning of the endorsed protected action as available to be implemented.

[29] The Applicants argued that usage in this manner created an ambiguity in the overall context of the authorised action. They conceded that such ambiguity was not noted or objected to at the time that the protected action ballot order was made. The Applicant argued that a further third-party ballot should be taken in the current circumstances. No statutory provision required such further employee endorsement given the action has already been taken as authorised under the Protected Action Ballot Order.

[30] However the Applicants argued that the industrial action was not protected, as it was open to the Respondent to use the remaining authorised action in this was. It is considered that no ambiguity exists on the specific terms of the industrial action, as endorsed by the employees as follows:

“An unlimited number of stoppages of work of 1-hour [or 4-hour] duration which may be organised or arranged in consecutive periods” 9

[31] The term ‘unlimited’ is defined as meaning:

“Without limit, unrestricted, esp. in amount, extent, or degree” 10

[32] In addition, the term ‘consecutive’ is defined as meaning:

“Following continuously; uninterrupted sequence; proceeding in a logical sequence; Of intervals of the same kind; occurring adjacently between the same two parts”. 11

[33] The action is deemed to be protected industrial action. For these reasons the Section 418 Order is not granted and the application is dismissed. I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR710081>

 1 [2014] FCAFC 8 at [15]

 2   Applicant’s outline of submissions paragraphs [4]

 3   Applicant’s outline of submissions paragraphs [5]-[8] and [10]-[11]

 4   PR704771

 5   PR704775 and PR704774

 6   Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd T/A DP World and Others [2019] FWC 908

 7   Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd T/A DP World and Others[2019] FWCFB 1150

 8   [2019] FWC 908 at [2]

 9   PR704771, PR704775 and PR704774

 10   Oxford English Dictionary

 11   Ibid