DP World Sydney Limited T/A DP World v Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 5011

[2019] FWC 5011

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 Sydney Limited T/A DP World & Ors
v
Construction, Forestry, Maritime, Mining and Energy Union & Ors
(C2019/3975)

DEPUTY PRESIDENT BULL SYDNEY, 18 JULY 2019

S.418 Order to stop threatened, impending or probable industrial action at Terminals of DP World. Whether notification of nature of industrial action was of sufficient specificity, definition of terms used in ballot and notice, s.414(6) whether specified industrial action taken within 30 days s.459(1)(d)..

Background

[1] On 28 June 2019 pursuant to s.418 of the Fair Work Act 2009 (the Act) an application was filed by four employers for an order that certain specified unprotected industrial action not occur and not be organised. The employers being:

•  DP World Sydney Ltd

•  DP World Melbourne Ltd

•  DP World Brisbane Pty Ltd

•  DP World (Fremantle) Ltd

(Collectively referred to as DP World)

[2] The proposed order was directed at the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) including all its officers, employees and its delegates who are DP World employees as well as employees of DP World who are members of the CFMMEU who perform work at one of DP World’s Terminals at Port Botany, Port of Melbourne, Port of Brisbane and the Port of Fremantle.

[3] The applicants are all subsidiaries of DP World Australia Ltd who operate container stevedoring terminals at the respective ports. The relevant employees are covered by the following enterprise agreements:

•  DP Sydney Enterprise Agreement 2015

•  DP Word Fremantle Enterprise Agreement 2015

•  DP Word Brisbane Enterprise Agreement 2016

•  DP Word Melbourne Enterprise Agreement 2016

(the Agreements)

[4] The nominal and common expiry date of the Agreements is 28 February 2019. Each individual agreement is divided into a Part A which is substantially the same across the four agreements and each agreement contains at Part B a port specific set of terms and conditions.

[5] An order for substituted service was sought by DP World as it was said to be impracticable for DP World in the time available to serve each employee in accordance with the Fair Work Commission Rules 2013. It was further stated by DP World that the vast majority (if not all) of the employees are members of the CFMMEU. The application for substituted service was granted.

[6] The matter was listed for hearing at 3:00pm on Friday 28 June 2019 at which DP World and the CFMMEU sought and were granted leave to be legally represented on the ground that the application would be dealt with more efficiently taking into account the complexity of the matter as per s.596(2)(a) of the Act.

[7] The CFMMEU requested that the matter be adjourned to enable full instructions to be obtained which was not opposed by DP World.

[8] Section 420(1) of the Act requires that as far as practicable, an application under s.418 of the Act must be determined within 2 days after it is made. Section 420(2) of the Act requires the Commission to make an interim order where it is satisfied that it would not be contrary to the public interest that the industrial action that the application relates to stop, not occur, or not be organised. On this basis, DP World pressed for an interim order which was not opposed by the CFMMEU and the order was issued in the terms sought by DP World and remained in place while the application of DP World was heard and determined.

[9] DP World is currently negotiating with the CFMMEU as a bargaining representative for the replacement of the Agreements. On 6 February 2019, the CFMMEU sought from the Commission protected action ballot orders (PABOs). The orders sought by the CFMMEU contained various questions relating to proposed industrial action to be asked of CFMMEU members at each DP World Terminal. The orders were issued on 12 February 2019. 1 Ballots were subsequently conducted and employees voted to approve the proposed industrial action which consisted of stoppages and bans on the performance of certain types of work.

[10] It is understood that, following appropriate notification to DP World, in late March 2019 the employees engaged in industrial action. In April 2019 the parties agreed that the industrial action would cease for 12 weeks during which an attempt would be made to progress negotiations, which unfortunately did not result in a final agreement.

[11] On 21 June 2019, the CFMMEU issued DP World with notices of intention to take protected industrial action. While the notices to each of the applicants included similar content they were not identical.

[12] On 27 June 2019, DP World wrote to the CFMMEU taking issue that some of the notified industrial action may not be ‘protected industrial action’. In particular DP World raised issues with the notice to take industrial action concerning:

•  An ‘upgrade’ ban

•  4 hour stoppages at the Port of Melbourne Terminal

•  Unlimited bans on working advanced or delayed start times at Melbourne and Brisbane terminals

•  Unlimited bans on performance of shift extensions at the Fremantle Terminal

•  Unlimited bans on performance of work of maintenance call-ins at the Brisbane Terminal

[13] The CFMMEU responded on the same day and agreed to withdraw the 4 Hour stoppages notice for the Port of Melbourne, however no other concessions were made.

[14] At the hearing of this matter the CFMMEU opposed any s.418 order issuing on the basis that the notified industrial action was protected industrial action.

Legislation

[15] The Act authorises the taking of industrial action that is ‘protected industrial action’ in support of bargaining for an enterprise agreement. Industrial action that is not protected industrial action is prohibited and subject to orders, the breach of which can lead to civil penalties. The Act specifies a range of requirements that must be satisfied before industrial action can be protected industrial action. There are limitations around how and when protected industrial action can be taken.

[16] Section 418(1) of the Act provides as follows:

‘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.’

[17] As can be seen from the words of s.418(1) of the Act the Commission is required to make an order of the specified type ‘if it appears to the FWC’ that industrial action that is not or would not be protected industrial action is happening, is threatened, impending or probable, or is being organised. The Commission’s perception of the relevant matters requires the formation of an opinion or the reaching of a state of satisfaction. 2 This also involves ‘to a significant degree an evaluative assessment with a degree of subjectivity.’3

[18] Section 409(2) of the Act requires that industrial action (in support of a claim) must be authorised by a protected action ballot. Section 459(1)(a) of the Act states that industrial action by employees is authorised by a protected action ballot if the action was subject of the ballot. Industrial action not in compliance with ss.409(2) and 459(1)(a) of the Act will therefore not be protected industrial action.

[19] In applying for a PABO s.437(3) of the Act requires the application to both specify:

•  The group or groups of employees to be balloted; and

•  The question or questions to be put to the employees who are to be balloted including the nature of the proposed industrial action.

[20] Pursuant to s.459(1) of the Act the proposed industrial action is authorised where the action was the subject of the ballot and at least 50% of employees eligible to vote did so and at least 50% of valid votes approved the action.

[21] However, prior to taking the protected industrial action s.414 of the Act requires a bargaining representative of an employee who will be covered by the agreement to provide in writing notice of the action to the employer.

[22] Section 414(6) of the Act further states:

“A notice given under this section must specify the nature of the action and the day on which it will start.”

(My emphasise)

[23] It appears that sub-s 414(6) of the Act follows on from what was first introduced as s.170PH(3) of the Industrial Relations Act 1988 by the Industrial Relations Reform Act 1993, although worded slightly differently. The notice provision then became s.170MO(5) of the Workplace Relations Act 1996.

DP World’s Submissions

[24] DP World raise in essence 4 subject matters in which they contend the notices indicate an intention to take and organise unprotected industrial action by the CFMMEU and its members employed by DP World and covered by the respective enterprise agreements. The subjects matters are:

1. Bans of a finite duration

2. Action and date of commencement not adequately specified

3. Performance of ‘upgrades’

4. Bans not compliant with 30 day commencement period

[25] In support of DP World’s application a witness statement was filed by Mr Mark Hulme employed by DP World Sydney Limited as the General Manager Operations. Mr Hulme also gave oral evidence and was subject to cross examination.

[26] The CFMMEU in opposing the application provided a witness statement from Mr Warren Smith the Assistant National Secretary of the Maritime Union of Australia Division of the CFMMEU who also gave oral evidence and was subject to cross examination.

1) Bans of a finite duration

[27] It is put by DP World that where the form of bans contained in the PABO use the phrases ‘an unlimited number of bans on (particular work) … ‘for an indefinite period’ then the type of bans contemplated must only be ‘indefinite’ bans. This wording is used for all forms of bans in the PABO.

[28] For example the PABO of 12 February 2019 for DP World Sydney Limited 4 poses at question (6) through to question (11) whether employees authorise protected industrial action in the form of unlimited bans for an ‘indefinite’ period on the performance of specified work. Question (8) states:

“8. An unlimited number of bans on the performance of overtime for an indefinite period.”

[29] The written notice of the action to be taken issued by the CFMMEU on 21 June 2019 in respect of the DP World Sydney Terminal at point (3) advises that its members will engage in:

“3. An unlimited number of bans on the performance of overtime commencing 6am Saturday 29 June ending 6am Monday 8 July 2019.” 5

[30] As the notified ban above specifies a period of time i.e. 6am Saturday 29 June to 6am Monday 8 July 2019 the notified ban is not for an indefinite period and therefore falls foul of ss.409(2) and 459(1)(a) of the Act as it is a time bounded period of industrial action not authorised by employees.

[31] DP World submits that the meaning of ‘indefinite’ in the context of industrial action means industrial action which is unlimited in time at its commencement. 6 To contemplate specific periods as contained in the notices the questions put to employees in the PABOs should have included the word ‘periodic’.

[32] The CFMMEU submitted that the argument cannot be supported on the plain language of the ballot questions. Where the expressions ‘unlimited number’ and ‘indefinite period’ are included in the ballot questions they convey the potential for a variation in the number, length and location of stoppages. The ballot questions were drafted broadly seeking authorisation for the taking of bans for periods of time that were not definite and without fixed or specific limits.

[33] While not referred to by DP World a similar issue arose for consideration in the 2010 Full Bench decision in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the Australian Workers Union. 7The Full Bench in that decision was required to examine whether pursuant to s.437(3) of the Act the questions in a PABO specified the nature of the proposed industrial action.

[34] In arriving at its decision the Full Bench stated that there will be a natural tendency for bargaining representatives to frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the vote’ on the basis that if the action specified in the s.414(6) notice is not authorised by the ballot any action taken pursuant to the notice will not be protected industrial action. 8

[35] The Full Bench in that decision then considered a ballot question framed in the following terms:

“In support of reaching an Enterprise Agreement with John Holland Pty Ltd do you endorse the taking of any and all protected industrial action against your employer which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:

Question 8

Indefinite or periodic bans on overtime?

Yes / No”

[36] In that case the appellant was contending that the ballot question (amongst others) did not unambiguously specify pursuant to s.437(3)(b) of the Act the nature of the proposed industrial action.

[37] At para [21] of that decision the Full Bench held that:

“The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans. But the question is not meaningless. Seen in its full context the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of ban.”

[38] On its face the Full Bench decision would appear to suggest there is a distinction between indefinite bans and periodic bans. However the question of whether indefinite bans can also include periodic bans was not in contest and the ballot question put by the CFMMEU in the matter before me is framed differently with the inclusion of the words “an unlimited number of bans on the performance of overtime for an indefinite period.” In any event DP World takes issue not with the ballot question but the with the notice provided under s.414(6) of the Act where notice is provided of an unlimited number of bans on the performance of overtime commencing and finishing within a specified timeframe.

[39] For bans on the performance of specified work to be of an indefinite period there would only be one ban that continued indefinitely. Whereas the words used in the question refer also to an ‘unlimited number of bans’ indicating that while the duration is for an indefinite period it must end at some period to enable more than one ban on the performance of the specified work to occur. The use of the words ‘indefinite period’ in conjunction with ‘an unlimited number’ connotes to the reader that the proposed bans are of no fixed period but allow for variations in their length. The Australian Concise Oxford Dictionary 9 defines ‘indefinite’ as ‘vague’, ‘undefined’ and ‘unlimited’ ‘without being definite or particular’. As such the later nomination of a fixed time frame in which the bans are to occur does no harm to the question posed and approved by employees following the ballot vote as the time period in the initial question was not definitive. The protected action ballot question contemplates the potential of further bans of a different duration.

[40] The argument put by DP World elevates the need to wordsmith the required notice to a degree outside the ordinary industrial context of what would otherwise be understood by the recipient employer. A notice specifying the nature of the action should only need to be framed to the extent that it conveys the author’s intention to the recipient on a reasonable understanding of the words used in a manner sufficient for (in this case) the employer to be in a position to take any necessary defensive action.

[41] I am unable to accept that the organising or the threatened, impending or probable taking of industrial action based on the CFMMEU’s notices to take an unlimited number of bans over a specified period in respect to certain work is in conflict with the question posed in the protected action ballots. As such this aspect of the application is dismissed.

2) Action and date of commencement not adequately specified

[42] Section 414(6) of the Act requires that a notice “must specify the nature of the action and the date on which it will start.” The submission of DP World is that certain notices provided by the CFMMEU do not comply with s.414(6) of the Act as they do not specify the nature of the bans to be taken. By way of example the notification of bans to apply at DP World’s Port Botany operations state as follows:

1. An unlimited number of bans on performance of upgrades on Day Shifts Monday to Friday commencing 6am Monday 1 July 2019 ending 6am Monday 8 July 2019.

2. An unlimited number of bans on performance of shift extensions commencing 6am Saturday 29 June 2019 ending 6am Monday 8 July 2019.

3. An unlimited number of bans on performance of overtime commencing 6am Saturday 29 June 2019 ending 6am Monday 8 July 2019.

4. An unlimited number of bans on performance of call-ins or late calls commencing 6am Saturday 29 June 2019 ending 6am Monday 8 July 2019.

5. An unlimited number of bans on performance of working continuous cranes or work through crane gangs commencing 6am Saturday 29 June 2019 ending 6am Monday 8 July 2019

6. An unlimited number of bans on performance of working advanced or delayed start times commencing 6am Saturday 29 June 2019 ending 6am Monday 8 July 2019

[43] The above notifications follow the PABO that issued from the Commission on 12 February for DP World Sydney Limited 10 that included the following questions:

“6. An unlimited number of bans on performance of upgrades for an indefinite period

Yes [ ] No [ ]

7. An unlimited number of bans on performance of shift extensions for an indefinite period

Yes [ ] No [ ]

8. An unlimited number of bans on performance on overtime for an indefinite period

Yes [ ] No [ ]

9. An unlimited number of bans on performance of call-ins or late calls for an indefinite period

Yes [ ] No [ ]

10. An unlimited number of bans on performance of working continuous cranes or work through crane gangs for an indefinite period

Yes [ ] No [ ]

11. An unlimited number of bans on performance of working advanced or delayed start times for an indefinite period

Yes [ ] No [ ]”

[44] At that time DP World took no objection to the nature of the proposed PABO questions and did not oppose the protected action ballot orders being granted subject to requesting an extension to the notice period of 3 working days, as required under s.414(2) of the Act, to 5 working days before taking protected industrial action pursuant to s.443(5) of the Act. 11

[45] DP World submits that in respect of the Port Botany, Port of Melbourne and Port of Fremantle Terminals the CFMMEU notices do not adequately specify the nature of the bans which are to be engaged in where the words used include “an unlimited number of bans” on the relevant work within a specified time period as this does not adequately specify what bans are to occur. This is because of the numerous possibilities that arise with an ‘unlimited number of bans’ such as whether they will be intermittent stopping and starting, occur multiple times or not be engaged in by all employees 12. This submission was supported by the evidence of Mr Hulme13 who stated that he had initially understood how the bans would operate but on further consideration was not sure what the notices were intended to mean.

[46] Mr Smith confirmed in his evidence that bans could cease and start again and for different periods of time. This in DP World’s submission does not provide DP World with an ability to understand what it was dealing with.

[47] It was submitted that further confusion is created where the words ‘unlimited number of bans’ are used in conjunction with the words “for an indefinite period” when providing notice in respect of the Port of Brisbane, as this wording is self-contradictory as there cannot be an unlimited number of bans of an indefinite period within a defined period.

[48] DP World rely upon the decision of the Full Bench in Telstra Corporation Ltd v CEPU [2009] FWAFB 1698 14 (Telstra) where it was held that in the context and circumstances applying at the time a notice referring to the taking of an unlimited number of indefinite stoppages on a specified day did not meet the notice requirements in s.414(6) of the Act.

[49] The CFMMEU submit that the requirements of s.414(6) of the Act are met as the nature of the industrial action is specified by:

•  identifying the employees who will be taking the action - members of the CFMMEU

•  describing the bans that will take place and

•  specifying when the bans will occur

[50] The CFMMEU state that when read in context it is clear that the notices specify the work described e.g. performance of overtime, shift extensions and that the intention is that all CFMMEU members will impose the bans. Although it is possible some employees will not engage in the bans, as the various workplaces are small that possibility does not create uncertainty and the notices are sufficiently specific to allow the employer to take preventative steps.

[51] Further, the position of DP World is inconsistent with comments of the majority decision of the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 15(Davids Distribution) in eschewing the requirement to provide precise details of every future act as it would be an unrealistic obligation to provide notice (in this case 5 clear working days in advance) of exactly what steps it would take.

[52] It is accepted that the notice requirements of s.414(6) of the Act are to provide the recipient of the notice the opportunity to respond to the action by making relevant preparations. 16 Under the Workplace Relations Act 1996 a similar provision at 170MO(5) was said in the majority decision in Davids Distribution to be designed to at least enable an employer to take appropriate defensive action.17 The court in that decision went on to state that:

“[84] It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s.170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division.

…

[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, "an indefinite strike of all employees", "a lockout of all employees employed in the AB fabrication plant", "a ban on overtime", "a ban of the use of MN equipment", "rolling stoppages throughout the mine", "a ban on the servicing of delivery vehicles. "”

[53] Merkel J in Construction, Forestry, Mining & Energy Union v Yallourn Energy Pty Ltd [2000] FCA 1070, in referring to the Davids Distribution decision, stated:

[21] Whether a notice is sufficient to comply with s 170MO(5) can involve questions of fact but will more usually involve questions of degree. When assessing such questions, as was stated in Davids Distribution at 495, it is important that the inquiry does not place a premium on legalism; rather the inquiry is as to what the notice would convey "in ordinary industrial English" to the reader.

[31] … While the precise action to be taken is not stated, and therefore the defensive action may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action. … .

[54] In Telstra the context in which the Full Bench concluded that the notices provided lacked specificity included that the industrial action intended to apply to 34,000 employees in hundreds of worksites across Australia where the employer does not know which of its employees are union members. As extracted in the cross examination of Mr Hulme these circumstances are not the same or to a similar degree in existence in this matter, with DP World having much smaller workforces, separate notices to the various Terminals, and an understanding that the vast majority of employees are CFMMEU members.

[55] Since the Commission’s Full Bench Telstra decision in 2009, there have been a number of other decisions concerning s.414(6) of the Act that require examination.

[56] In 2010, Barker J in Alcoa of Australia Limited v Australian Workers Union 18 (Alcoa) stated as follows:

“[33] For myself, while I accept the admonition of Goldberg J 19 that a matter may not be so simply decided, one would have thought, taking the text of s 414(6) at face value, that because the Parliament has chosen to impose some notice requirements of industrial action when, prior to the Workplace Relations Act 1996 (Cth), there were none, a court should be slow, in effect, to travel beyond the plain words of the provision. The requirement to specify the “nature of the action” and then separately “the day it will start”, do not, of themselves, suggest to me that it is also necessary to particularise the commencement and finishing time of the proposed action in a notice. For the Court to supply this degree of particularisation might be seen to supplant the role of the legislature in prescribing industrial behaviour, a matter of continuous contention over the course of this country’s history since Federation in 1901.

[34] Nonetheless, along with Goldberg J 20 and Gilmour J, I accept that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the “nature of the action”, having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action. But it is not a requirement that, to my mind, immediately leaps to the eye from the text of s.414(6).

[35] I consider, therefore, there is force in a submission made on behalf of the union in this case that s.414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be.”

[57] In 2010, Greenwood J also dealt with the application of s.414(6) of the Act in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd , 21 stating:

[56] … in Telstra at [12], the Full Bench also noted that “[w]hether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action”. In Telstra, the question in issue was the adequacy of notice given on behalf of employees in circumstances where Telstra employed 34,000 employees.

[57] In the context of discussing the adequacy of the notice in describing the proposed action, the Full Bench at [16] observed that it is implicit that the description of the action should be sufficient to put the employer (in that case) in a position to make reasonable preparations to deal with the effect of the industrial action. In examining the description “indefinite stoppages” used in the notice (as a description of the proposed action), the Full Bench at [14] noted that the phrase “indefinite stoppages” refers to a concept which is well recognised in workplace relations of a stoppage which is unlimited in time at its commencement. The Full Bench rejected Telstra’s suggestion that a notice using the term “indefinite stoppages” could never comply with s.414(6) of adequate specification of action. Whether a notice does comply “will depend on the context in which it appears in the notice and the surrounding circumstances”: [14].

[58] These observations suggest that the adequacy of a notice for the purposes of s.414(6) must be examined in context. An assessment of adequacy must take account of all the circumstances and examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations. The adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act or respond in a particular way (or as in this case, engage in the foreshadowed conduct set out in the notices “RF3” and “RF7” to which the challenged notices respond).

[58] In 2013, a Full Bench of the Commission in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 3793 (Yallourn) dealt with an appeal against a decision of Bissett C to dismiss an application under s.418 of the Act. In holding that a notice provided pursuant to s.414(6) of the Act by the then Construction, Forestry, Mining and Energy Union satisfied the requirements of that section, the Full Bench stated:

[59]The approach to be taken to the degree of specificity required is informed by the comments made in Davids Distribution (and the subsequent decisions which have each adopted those comments). It is clear, in our opinion, the Commissioner well understood this. The Appellant seems to require a degree or level of particularity in the notice which has been expressly disapproved of. It is not necessary for the notice to contain precise details of when and how every future act or omission will or may occur. The specificity the Appellant seeks would constitute, in terms used in Davids Distribution, a major and unrealistic constraint on the protected industrial action that could be taken.

[59] The degree of specificity required by s.414(6) of the Act is not legislatively defined. I accept that the approach to be taken is as stated by the Full Bench in Yallourn to be guided by the authorities referred to above and in particular the Federal Court decision in Davids Distribution.

[60] The s.414(6) notices put the respective DP World employers on notice of the day when industrial action in the form of bans on the specified work nominated in the CFMMEU’s notices will commence and when the bans will end.

[61] The CFMMEU notices could have specified the industrial action in more precise terms, but in applying the observations of Merkel J of the Federal Court in Construction, Forestry, Mining & Energy Union v Yallourn Energy Pty Ltd [2000] FCA 1070, 22and those of the Federal Court in Davids Distribution, I am satisfied that the nature of the action is specified to the degree that an understanding of what is contemplated including the day on which the bans will start and finish is conveyed to DP World. As such, no more is required under s.414(6) of the Act.

[62] I have reached this conclusion in the context that the notices identify who will be taking the action, what the action will be, and when it will start and finish. This is not to acknowledge DP World’s argument of the potential that the bans will be intermittent and of an unknown duration within the timeframe provided, however the authorities are clear that requiring precise details of every future act is not a requirement of s.414(6) of the Act but rather a question of degree. As stated by Barker J in Alcoa, the fact that the employer may be inconvenienced is not a reason of itself to find that a notice should be as specific as the applicant in this case would like it to be.

[63] The Port of Brisbane notices use the words ‘unlimited number of bans’ in conjunction with the words “for an indefinite period,” which is consistent with the question posed in the PABO and in addition provide the start and finish dates of the bans and the work to be banned. I am unable to identify how the notice is any less specific because the words ‘for an indefinite period’ are used. Where the notices do not use this additional wording, the period of the bans are not stated other than the timeframe in which they will occur which in itself was a complaint of lack of specificity by DP World dealt with above.

[64] I return to the decision in Telstra relied heavily upon by DP World where the Full Bench in that decision rejected the proposition that a notice of indefinite stoppages unlimited in time at its commencement could never comply with the requirements of s.414(6) of the Act as it will depend on the context in which it appears in the notice and the surrounding circumstances. The Full Bench went on to state that given the nature of Telstra’s operations some greater specification would be required. Having regard to the evidence given by Mr Hulme in the matter before me, I am satisfied that the context and surrounding circumstances existing in Telstra, of 34,000 employees across hundreds of locations in Australia, is markedly different to that faced by DP World when dealing with the notices provided by the CFMMEU for each of the work locations covered by the various enterprise agreements.

[65] In a 2016 Federal Full Court decision in Esso Australia Pty Ltd v AWU, 23 Bromberg J at [234] made the following observation regarding s.414(6) of the Act:

“The text suggests that the content requirements are not intended to be onerous. Only two matters need to be addressed: the “nature of the action” and the “day on which it will start”.

[66] Bromberg J went on to state that the word ‘nature’ evinced an intention for generality. 24

[67] For the reasons outlined above I am not satisfied that unprotected industrial action is being organised, threatened, impending or probable in respect of the CFMMEU notification of unlimited bans on the performance of specified work including for an indefinite period during a specified time period on the basis that s.414(6) of the Act has not been complied with.

3) Performance of upgrades

[68] The PABOs for DP World Sydney Ltd 25, DP World Melbourne Ltd26 and DP World (Fremantle) Ltd27 posed a question, among others, to be put to CFMMEU members in the following terms:

“Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement to govern the terms and conditions of your employment, authorise protected industrial action (not including industrial action by employees performing the roles of Reefer Monitor (Cargo Care), Bus Driver/Escort or First Aid) in the form of:

An unlimited number of bans on the performance of upgrades for an indefinite period.”

[69] The subsequent s.414(6) notice for DP World Sydney Ltd on 21 June 2019 included the following:

“An unlimited number of bans on the performance of upgrades on Day Shifts Monday to Friday commencing 6am Monday 1 July 2019 ending 6am Monday 8 July”

[70] For DP World Melbourne Ltd and DP World (Fremantle) Ltd the wording was slightly different and specified different time frames but advised of an unlimited number of bans on the performance of ‘upgrades’.

[71] DP World submit that when industrial action was previously taken in March and April 2019, where bans on the performance of upgrades were notified, the bans took the effect of employees refusing to perform any work at a higher grade including when allocated to perform work at a higher grade in advance of commencing work and for the whole of the shift.

[72] DP World submitted that the term ‘upgrades’ as it appears in the ballot orders and the 21 June notices must be read in context.

[73] It was contended that by ‘custom and practise’ and under the Agreements the term ‘upgrades’ refers to the circumstances where, during the course of a shift, an employee is required to perform work at a higher grade which attracts a higher rate under the Agreements. Where an employee is allocated to work a full shift at a higher grade this is dealt with separately under the Agreements. A reference to higher duties in the Agreements was said not to be analogous with a reference to upgrades in the Agreements. Upgrades were said to be a subset of higher duties.

[74] Following the bans placed on employees working at a higher level in advance of commencing a shift in addition to bans on working at a higher level during a shift in March/April 2019, DP World sought confirmation from the CFMMEU that the 21 June notices regarding bans on upgrades would only apply to a request to work at a higher grade during a shift. Working at a higher level has application to Variable Salaried Employees (VSE’s) who have the status of a Grade 2 under the respective Agreements. The correspondence of 27 June 2019 stated that an upgrade for the purposes of the Agreements was limited to a situation in which an employee is asked during a shift to perform at least 2 hours in a higher grade. It was further stated that it is not an upgrade where an employee is asked to work at a grade higher than their underlying grade prior to or at the commencement of their shift.

[75] The correspondence then sought confirmation from the CFMMEU that they accepted the position advanced by DP World. On the same day the CFMMEU responded stating that they disagreed with DP World’s interpretation and that the bans would not be withdrawn.

[76] DP World submit that the organising and impending and probable industrial action in the form of bans on the performance of work at a higher level prior to or at the commencement of an employee’ shift is unprotected industrial action as it was not authorised by the ballots and goes beyond the action that has been notified.

[77] It is submitted that the word ‘upgrade’ should be read as it would be understood by a reasonable person in the position of DP World. 28 The word ‘upgrade’ was said in oral submissions by DP World to be a ‘term of art’ at DP World.

[78] In support of its ‘custom and practice’ meaning of the word ‘upgrade’ DP World submitted that it was only recently in the March/April 2019 industrial action by employees that the CFMMEU had asserted that an upgrade ban captured both scenarios described above. This was the evidence of Mr Hulme for DP World who stated that when industrial action had been taken during the 2011 and 2015 enterprise agreement negotiations, which involved bans on upgrades, the bans were not applied to employees who on commencement of a shift were allocated to a higher grade for the entire shift. 29

[79] The position of DP World was that the Agreements make clear that an upgrade is solely associated with the situation where an employee is asked during a shift to perform at least 2 hours in a higher grade as per clause 12.4 – Payment for Upgrades of the Agreements which provides amongst other entitlements, the payment for employees upgraded to a higher graded position during a shift for two or more hours.

[80] In Mr Hulme’s opinion, an upgrade only applies to a situation where an employee who is already performing work on a shift is required to change the work they are doing and perform higher graded work. 30 Mr Hulme provided copies of ‘Shift Labour Reports’31 and Payroll Record extracts for a period in 2014 when bans were placed on the performance of upgrades32 which he stated demonstrated that the working of a full shift at a higher grade continued during the ban on upgrades. Mr Hulme expressed the view that an employee allocated to a higher grade at the beginning of a shift did not meet the definition of an ‘upgrade’. He did however accept that in March 2019 the CFMMEU confirmed its view to him of their understanding of the meaning of a ban on upgrades.

[81] The CFMMEU submitted that, properly characterised, an ‘upgrade’ cannot be distinguished in the manner put by DP World. That is, an upgrade is not dependent upon whether an employee is required to work at a higher grade at the commencement of their shift or during their shift. Further, the ballot questions and s.414(6) notices make no such distinction and should be given their ordinary meaning.

[82] Mr Smith for the CFMMEU provided a witness statement 33 wherein he attested to being unaware of the interpretation placed on the meaning of the word ‘upgrade’ by DP World where referred to in the Agreements. Based on his experience most upgrades are allocated before a shift starts. It was Mr Smith’s evidence that the Stevedoring Industry Award 2010 (the Award) has minimal capacity for employees to work outside their grades. Under the Award, higher grade work for Grade 2 employees is restricted to training programs.34

[83] As a result employers have sought greater flexibility under their enterprise agreements to allow for employees to work at higher grades. Mr Smith’s evidence was that the CFMMEU as a bargaining representative has negotiated a more flexible provision which allows for upgrades other than for training purposes. The provision appears at clause 11.7 in the Agreements:

“11.7 A stevedoring Employee shall perform all relevant functions of the Employee’s grade for which the Employee is qualified and all lower grades, and may relieve an Employee in a higher grade in the following circumstances:

11.7.1 the higher duties are performed as part of a training program in which circumstance there shall be no additional payment; or

11.7.2 the Employee performing those duties is qualified to perform such work which is on an irregular basis and those duties do not form a substantial part of the Employee’s usual work in which circumstance the Employee shall be paid for the shift worked at the rate applicable to the higher grade.”

[84] It was not accepted by Mr Smith that clause 12.4 of the Agreements limited the definition of upgrades to only those occurring during a shift and he advised that he responded to DP World to this effect on 27 June 2019.

[85] Despite the earnest submissions on behalf of DP World I am not persuaded that the reference in the ballot orders or the CFMMEU s.414(6) notices to ‘upgrades’ connotes the limited meaning urged upon the Commission, even accepting what may have occurred previously when bans were placed on upgrades by employees.

[86] The word ‘upgrade’ is not a defined term in the Agreement definition clause. The Macquarie Online Dictionary includes in the definition of the word ‘upgrade’:

“to assign (a person, job, or the like) to a higher status, usually with a larger salary”

[87] In my view a reasonable employer in DP World’s position ought not have concluded that a ban on ‘upgrades’ has the limited meaning of only applying to work of a higher grade performed during a shift.

[88] I do not accept that the Agreement wording provides support for this, rather the contrary. This is because the text of enterprise agreements must be viewed as a whole and read in context when determining the meaning of their terms. 35 No party suggested that the relevant wording was ambiguous and in my view the word ‘upgrade’ has a plain meaning in line with the dictionary definition above. That is the employee works at a grade higher than their substantial position.

[89] Looking specifically at the Agreement wording does not in my view support a narrow interpretation of the word ‘upgrade’.

[90] The first paragraph of subclause 11.7 refers to the ability of a qualified employee to “relieve an employee in a higher grade”. Further at subclause 11.8 the words ‘higher duties’ and ‘upgraded’ are used in the same sentence. The distinction DP World seeks to draw between the words ‘a higher grade’ and ‘upgrade’ is not made out.

[91] Subclause 30.2.1 of the Agreements refers to where a VSE is engaged in work of a higher grade being paid the rate for the higher grade subject to clause 12.4. As noted above subclause 12.4 Payment for Upgrades stipulates the payment for upgrades that occur on shift extensions; it does not create a separate definition for upgrades on this basis.

[92] Considering the text of the Agreements as a whole, I do not accept that the payment provisions found in clause 12.4 Payment for Upgrades create a specialised meaning of the word ‘upgrade’.

[93] When used in the ballots and notices the word ‘upgrades’ should be given its ordinary meaning not restrained by the length of the upgrade or when it was worked. This aspect of DP World’s s.418 application is dismissed.

4) Bans not compliant with 30 day commencement period

[94] Section 459(1) of the Act sets out the circumstances in which industrial action is authorised by a protected industrial action ballot. At s.459(1)(d) of the Act is a requirement in the following terms:

“(d) 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.”

[95] It is contended by DP World that some of the industrial action notified in the 21 June 2019 notices included industrial action that fell outside the 30 day period and that the Commission has not extended the 30 day period. In particular, for the Port of Melbourne Terminal the notice at (V) states:

“All members of the MUA employed by DP World (Melbourne) Ltd shall engage in an unlimited number of bans on the performance of working advanced or delayed start times commencing at 6am Saturday 29 June 2019 until 6am Monday 8th July 2019.”

[96] At the Port of Brisbane the notice at (III) and (IV) states:

“All members of the Maritime Union of Australia Division employed by DP World Brisbane Pty Ltd T/A DP World shall engage an (sic) unlimited number of bans on performance of maintenance call-ins for an indefinite period commencing Monday the 1st of July 2019 from 0700 until Monday the of (sic) 8th July 0700.”

“All members of the Maritime Union of Australia Division employed by DP World Brisbane Pty Ltd T/A DP World shall engage an (sic) unlimited number of bans on performance of working advanced or delayed start times for an indefinite period commencing Monday the 1st of July 2019 from 0700 until Monday the of (sic) 8th July 0700.”

[97] At the Port of Fremantle the notice at (II) states:

“All members of the MUA employed by DP World (Fremantle) Ltd shall engage in an unlimited number of bans on the performance of shift extensions commencing at 6am Saturday 29 June 2019 until 6am Monday 8th July 2019.”

[98] DP World contends that none of the notified bans above had been commenced by employees in the prescribed 30 day time period and cannot be protected industrial action. This was supported by the evidence of Mr Hulme who confirmed that after making enquiries at the relevant terminals, the above bans had not been implemented within the 30 day time period.

[99] This was because:

•  no employee at the Melbourne Terminal was required but refused to work an advanced or delayed start time.

•  no employee at the Brisbane Terminal was required but refused to perform a maintenance call-in or work an advanced or delayed start time.

•  no employee at the Fremantle Terminal was required but refused to perform a shift extension.

[100] No point was taken by DP World in respect of the notice forwarded to the Port Botany Terminal which advised of similar but not identical industrial action as the notified industrial action had been taken in the 30 day period.

[101] Put simply DP World submit that there was no refusal to perform the banned work as described in the relevant notices, as the opportunity to refuse to perform the work never arose during the 30 day period.

[102] The CFMMEU stated that the notified banned work was not required to be undertaken as the employer knew that the bans were in place. Mr Smith’s evidence 36 was that he had spoken to the relevant state officials who informed him that:

(i) From time to time the Port of Melbourne operation requires employees to work varying start times (advanced or delayed), the number of employees required to vary start times and the number of occasions that it is required varies. Employees during the March 2019 bans were not requested to work an advanced or delayed start time when working vessels in port and they did not do so.

(ii) In the Port of Brisbane operation ordinarily the Port relies upon some employees working varying start times, the number of employees required and the number of occasions required varies. During the March 2019 bans employees were not requested to work an advanced or delayed start time when working vessels in port and they did not do so.

(iii) At the Port of Brisbane maintenance call-ins usually occur when a tradesperson is unavailable, the number of maintenance call-ins varies. During the March 2019 bans employees were not requested to work maintenance call-ins and they did not do so.

(iv) The Fremantle Port ordinarily relies on some employees working shift extensions, the number of employees required to work shift extensions and the number of occasions extensions are required varies. During the March 2019 bans employees were not requested to work shift extensions and they did not do so.

[103] The CFMMEU contends that the bans were in place from the dates specified in the relevant notices; the employer knew that the specified work would not be performed and the evidence was that they did not perform that work. It matters not that they were not asked to and refused to perform the work as the bans were in place. As such the requirement to commence the action within a 30 day period is satisfied and the notification of further bans is not proscribed by s.459(1)(d)(1) of the Act.

[104] The position put by DP World does not appear to have been considered previously by the Commission although DP World draw support from a Federal Court decision of Lee J in April 2019 Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union 37 (Patrick Stevedores). In that decision the Federal Court was dealing with alleged contraventions of the Act in relation to unprotected industrial action during the period of 22 April 2017 to 24 April 2017. It is necessary to examine the relevant circumstances of that case in a little detail.

[105] On 20 and 21 April 2017 it was put that employees had acted consistent with a ban being in place by refusing specific directions to unload empty containers across a number of shifts. On this basis, to avoid triggering the ban and creating a situation of increased hostility, the employer decided not to further direct employees to unload empty containers in the period 22 – 24 April leading up to Anzac day on 25 April 2017 and made other arrangements. The employer anticipated that had employees been asked to perform the work there would have been a further refusal to do so. 38

[106] Lee J held that for the period 22 – 24 April 2017, there was no refusal to perform the work because the work was not required on those days stating at [221]:

“I accept the respondents’ 39 submission that nothing was relevantly engaged in during the period 22 April until Anzac day and there could be no relevant refusal to perform work, or any other action in respect of work, which was not being required. Where no industrial action was engaged in, none could have been organised.”

[107] Section 459(1)(d) of the Act mandates that “the action commences” during the 30 day period. The phrase “the action” is a reference to ‘industrial action’ as defined in s.19(1) of the Act taken as employee response action pursuant to s.414(4) of the Act.

[108] In the decision of the Full Court of the Federal Court in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8, North and Bromberg JJ 40 stated:

“ … 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.

(My underline)

[109] Commenting on the effect of s.459(1)(d) of the Act the Full Bench in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2022 41 stated at [19]:

“Nevertheless, the effect of s.459(1)(d) is clear: once a ballot has been conducted and a particular form of action authorised, the employees must “use it or lose it”.”

[110] The 21 June 2019 notices provide notice of the action and the date on which it will start; it does not simultaneously equate to the industrial action commencing. This is because where industrial action is notified there is no requirement that it actually commence, either in part or at all.   

[111] The Full Bench in Boral Resources (NSW) Pty Ltd 42 held that a requirement to give notice of protected industrial action is not to be understood as carrying with it an obligation for employees to engage in the conduct specified in the notice. Part of the employer’s consideration of what defensive action to take will include an assessment of the likelihood of the industrial action being taken. See also a similar comment of Bromberg J in Esso Australia Pty Ltd v AWU43.

[112] Notified industrial action may not commence for numerous reasons including that circumstances do not arise to implement the action, agreement is reached in regard to the bargaining dispute or that employees decide not to take the notified industrial action.

[113] The CFMMEU submit that the circumstances in Patrick Stevedores are different from the present matter as in that case the employer changed its operations to avoid further conflict, whereas in this matter the work was not required to be undertaken but the bans were in place during the 30 day period.

[114] Despite the differing circumstances, in my view, the reasoning of Lee J in Patrick Stevedores has application. The test at s.459(1)(d)(1) of the Act is not, as is more widely worded at s.418(1) of the Act, whether the action is threatened, impending or probable, but specifically whether it has commenced. The performance of work the subject of the bans was not required or requested by DP World to be performed, therefore, there was no relevant refusal to perform work subject to the bans. The opportunity for employees to act on the notified bans did not arise, hence, as the industrial action was not engaged in, it did not commence during the relevant period and whether it would have is in one sense speculative.

[115] The requirement in s.459(1)(d)(1) to have commenced the notified action within 30 days was not met.

[116] Based on the above conclusions I find that the CFMMEU notification of the nature of the action and the day on which it will start in relation to the:

I. working of advanced or delayed start times at the Melbourne Terminal

II. the performance of maintenance call-ins at the Brisbane Terminal and working of advanced or delayed start times and

III. performance of shift extensions at the Fremantle Terminal

if commenced as notified would not have been protected industrial action as the action did not commence in the 30 day time period following the industrial action ballot. 44

[117] As was discussed with the parties at the end of the second hearing date a number of the time periods in which the notified industrial action subject to this application had expired and it would be possible, as is the case now, that all notified dates would have expired at the time of the decision. The parties requested that a decision still issue as further s.414(6) notifications had been issued or were impending, thus there was a live issue to be resolved.

[118] While I have accepted one of the four contentions of DP World in its s.418 application no order can issue on this point as the dates of the notified action have now passed and there is no longer any threatened, impending or probable unlawful industrial, nor is there evidence it is being organised.

[119] It remains for the Commission to revoke the interim order that was issued in compliance with s.420(2) of the Act on 28 June 2019. An order doing so is attached.

DEPUTY PRESIDENT

Appearances:

Mr D Perry, Solicitor, Seyfarth Shaw and Ms T Kakoschke on behalf of the Applicants

Mr A Slevin, of Counsel, and Mr S Koulouris Solicitor Slater and Gordon on behalf of the CFMMEU

Hearing details:

Sydney

2019

28 June

3 July

Printed by authority of the Commonwealth Government Printer

<PR710459>

 1   PR704773, PR704771, PR704775, and PR704774

 2   See Full Bench decision in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2013] FWCFB 7736 at [7]

 3   Ibid at [11]

 4   PR704775

 5   It is accepted by the parties that some of the dates contained in the Notice of Intention have expired, but as further notices have issued it remains a live issue

 6   Telstra Corporation Ltd v CEPU (2009) FWAFB 1698 at (14)

 7   [2010] FWAFB 526

 8   Ibid at [16]

 9   Fifth Edition

 10   PR704775

 11   The application to extend the notice period to 5 days was granted: [2019] FWC 908

 12   CFMMEU members

 13   Witness statement exhibit A1 at [24]

 14   at [14]

 15   at [84]

 16   Telstra Corporation Ltd v CEPU [2009] FWAFB 1698 at [12]

 17 (1999) 91 FCR 463 at [87]

 18 [2010] FCA 278

 19   Referring to the decision in CSBP Ltd v Liquor, Hospitality & Miscellaneous Union [2007] FCA 539 at [94]

 20   Referring to the decision in Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v ACI Mould Manufacturing [1999] FCA 1859.

 21 190 FCR 581

 22 [2000] FCA 1070 at [31]

 23 [2016] FCAFC 72

 24   Ibid at [257]; Bromberg J was a dissenting decision from the majority

 25   PR704775

 26   PR704774

 27   PR704773

 28   Esso Australia Pty Ltd v AWU (2016) 245 FCR 39, Buchannan J at [104] supported by Siopis J. This decision was overturned by the High Court but on other grounds [2017] HCA 54.

 29   Witness statement Ex A1 at [14]

 30   Witness statement Ex A1 at [13]

 31   Exhibit A4

 32   Exhibit A2

 33   Exhibit R1

 34   Schedule B Classification Structure at B.2(g)

 35   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114]

 36   Witness Statement Ex R1 at [38-39]

 37 [2019] FCA 451

 38   Ibid at [219] – [220]

 39   The CFMMEU was the first named respondent

 40 [2014] FCAFC 8 at [15]

 41   [2013] FWCFB 2022 at [19]

 42   [2010] FWAFB 1771 at [14]

 43 (2016) 245 FCR 39 at [249]

 44   The period was not extended as per s.459(1)(d)(ii)