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

[2021] FWC 1746

[2021] FWC 1746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

DP World Sydney Limited
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2021/1716)

DEPUTY PRESIDENT BULL SYDNEY, 1 APRIL 2021

S.418 Application to stop unlawful industrial action at DP World Sydney Ltd Port Botany New South Wales.

[1] On the morning of Monday 29 March 2021, solicitors Seyfarth Shaw Australia filed on behalf of DP World Sydney Australia Limited (DP World), an application pursuant to s.418 of the Fair Work Act 2009 (the Act) seeking orders preventing the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) organising any industrial action involving specified DP World employees at the container stevedoring terminal at Port Botany operated by DP World (the Terminal), and for those employees to cease unlawful industrial action.

[2] 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 and an order to that effect was issued.

[3] On the evening of 30 March 2021, the Fair Work Commission (the Commission) after hearing argument from DP World and the CFMMEU issued an Order pursuant to s.418(1) of the Act (PR728231). The Order required all officers of the Maritime Union of Australia Division of the CFMMEU, (MUA) with responsibility for union matters at the Terminal, including those of its delegates who are employees of DP World at the Terminal, to stop organising, and not organise any industrial action.

[4] The Order further required maintenance employees who are members, or eligible to be members, of the CFMMEU who are employed at the Terminal whose work and employment are regulated by the DP World Sydney Enterprise Agreement 2020,tostop engaging in industrial action; being a a failure, or refusal to work as directed and/or a ban, limitation or restriction on the performance of work as directed.

[5] The following are the reasons for the Order issuing.

Background

[6] At the hearing of this matter, DP World and the CFMMEU sought and were granted leave under s.596(2)(a) of the Act to be legally represented. While the CFMMEU were represented by counsel, there was no appearance by or representation on behalf of employees.

[7] DP World provided written submissions and relied on the evidence of Mr Mark Hulme, the General Manager - Operations at the Terminal, and Mr Richard Farmer, the Engineering Manager responsible for maintenance operations at the Terminal. Mr Hulme’s evidence was not subject to cross-examination.

[8] The CFMMEU called no evidence and relied on its oral submissions.

[9] The evidence revealed that DP World has been in discussions with its maintenance employees about the performance of a “rope change” on two quay cranes at its container terminal at Port Botany. When a quay crane is operating, loads are suspended from a wire rope, and these ropes must be replaced from time to time, as they experience damage and/or wear and tear. To avoid the ropes becoming unserviceable and potentially breaking, they must be replaced.

[10] DP World formed the view that it could not rely on sourcing from its workforce sufficient qualified labour to replace crane ropes as the work would need to be performed using at least five employees working on an overtime basis. Overtime work is voluntary and there had been little acceptance by employees of voluntary overtime since early March 2021. 1

[11] DP World stated that it engaged in consultation with maintenance employees represented by CFMMEU delegates where they advised them that due to the lack of guaranteed labour from directly employed maintenance employees, that “rope changes” ought be performed by a qualified contractor.

[12] The rope changes were to occur in mid-April 2021, however on 26 March 2021, crane 4 broke down. The break down was said by DP World to be due to driver error and resulted in damage to the wire ropes on the crane. The repair required the replacement of the wire rope on an urgent basis, and as such DP World decided to bring forward the rope change on crane 4 to Tuesday, 30 March 2021 and to have a contractor undertake the work. 2 On the same day, the maintenance delegates were advised of this course of action and that it would occur on 30 March 2021.

[13] Mr Hulme’s evidence was that at around 1:00 pm on Sunday, 28 March, he received a telephone call from Brad Dunn, a former DP World employee, now an Assistant Branch Secretary of the MUA’s Sydney Branch. Mr Dunn asked that DP World not use contractors to undertake the proposed repair work. 3 Mr Hulme responded that the work had already been committed to with the contractor and if the maintenance employees want the work in the future, they must provide certainty of labour.

[14] At approximately 2:00 pm, Mr Hulme received a telephone call from Paul Keating the Branch Secretary of the MUA Sydney Branch. Mr Hulme’s evidence was that initially, Mr Keating made several of the same points as Mr Dunn and said words to the effect of “you shouldn’t do this, contracting out our work.”

[15] Mr Hulme states that Mr Keating quickly became abusive, making comments such as:

“you’re a f…king idiot, if you think I’m going to stand by and let this happen”,

and referring to Mr Hulme as a “coward” and “prick”, and that he was showing “disrespect” to him.

[16] Mr Hulme states that Mr Keating said words to the effect of:

“you are engaging scabs”.

[17] Towards the end of the conversation, Mr Hulme states that he said to Mr Keating that there was a dispute resolution procedure to be followed which can be escalated, to which Mr Keating replied:

“We are not taking this to the Commission. We will deal with it.” 4

Events of Monday 29 March 2021

[18] On 29 March 2021, with the day shift beginning at 06:00am, delegates of the CFMMEU representing maintenance employees informed DP World that because of the decision to contract out the rope change on crane 4, employees would ‘sit in’ and refuse to work. Employees refused to leave the break room. At around 07:20am, Mr Hulme had a conversation with Mr Dunn in the Operations Open Plan area where Mr Dunn said that if DP World called the stoppage a safety matter and did not dock pay, employees would return to work. This was not agreed to. 5

[19] At 09:18am, Mr Hulme received an email from Mr Greg Evans, an employee and MUA delegate, which was headed “Outsourcing of wire rope work.” The email said that without the coverage of maintenance employees it was not safe for other employees to perform work (operations employees). 6 Mr Hulme replied saying that it was not a safety dispute and that operational employees were supporting the maintenance employees’ refusal to work.

[20] At around 10:00am, all employees began normal work, but no explanation was given to DP World for the return to work. 7 During the period from 6:00am to 10:00am, the terminal ‘almost entirely’ ceased operation due to withdrawal of the labour.8

Events of Tuesday 30 March

[21] At 06:00am on 30 March 2021, the contractor was due to begin the rope change on crane 4 and both the maintenance and general operations day shifts were due to commence work but did not.

[22] CFMMEU delegate Mr O’Sullivan advised DP World that employees would return to work if DP World confirmed in an email that the work for the next rope change for crane 5 would not be outsourced.⁹

[23] Mr Farmer’s evidence was that at around 06:30am, some maintenance employees assigned to breakdown crew made themselves available for work so that they could perform any emergency maintenance work if called upon. 10

[24] An email was sent by Mr Farmer at 06:43am which provided the confirmation requested by Mr O’Sullivan,¹¹ however Mr Dunn advised Mr Farmer that the email was not sufficient and made further requests stating that employees would not return to work until the requests were agreed.¹²

[25] Mr Keating arrived at the site at around 07:47am.

[26] At around 08:05am, Mr Farmer went to the smoko room and was told that work would not commence. At around 08:15am, the breakdown crew labour was withdrawn, and the general operations employees stopped work. 13

Findings

[27] 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.”

[28] The effect of s.418(1) is that the Commission must make an order of the specified type if it appears to the Commission that industrial action that is not or would not be protected industrial action, is happening, or is threatened, impending or probable, or is being organised.

[29] The Commission’s perception of the relevant matters requires the formation of an opinion or the reaching of a state of satisfaction. 14 This also involves ‘to a significant degree an evaluative assessment with a degree of subjectivity.’15

Is there industrial action?

[30] The employees concerned in this application are covered by the in-term enterprise agreement DP World Sydney Enterprise Agreement 2020, which has a nominal expiry date of 30 September 2023. The Act does not provide for protected industrial action to be taken by any party while an enterprise agreement has not passed its nominal expiry date. 16

[31] The Commission accepts that in the circumstances of 29 and 30 March 2021, the industrial action taken by maintenance employees was at all times unprotected action and was still occurring at the time of the hearing of this matter.

[32] As noted above, the relevant employees were not represented at the hearing and no employee other than DP World management gave evidence. The Commission is satisfied that at least at the commencement of work at 06:00am on 29 March 2021 when work did not commence that unprotected industrial action was being taken by both maintenance and operation employees.

[33] It is noted that at 09:18am on 29 March, Mr Evans sent an email to Mr Hulme stating that without the coverage of maintenance employees the operational employees were unable to commence work as it would not be safe. Mr Farmer confirmed in his evidence that operations employees would not be directed by DP World to work without the coverage of a maintenance breakdown crew.

[34] DP World tendered through the evidence of Mr Hulme the notes of a discussion between the Operations Manager Mr Ben Crosky 17 and Mr Evans which occurred at 08:15am on 30 March 2021. The notes of the conversation indicate that Mr Crosky stated to Mr Evans that if it was a safety issue for operation employees due to there being no breakdown crew, whether operations employees would work if DP World brought in contractors to work as the breakdown crew. Mr Evans replied that they can’t do it as it is ‘our work’ and it would be unsafe for someone else to do it.

[35] Having considered the evidence put before the Commission, I am satisfied that unprotected industrial action is being taken by maintenance employees and that it is probable that it will continue with crane 5 scheduled for a rope change in mid-April should contractors be used. Based on this conclusion, an order to prevent further unprotected industrial action being taken by maintenance employees should issue and operate until mid-May 2021.

[36] On the basis that an order will issue requiring maintenance employees to resume work and not take any unprotected industrial action until mid-May 2021, I am not satisfied that it is probable unprotected industrial action will be separately undertaken by operation employees and therefore no order as requested by DP World will cover operation employees.

Was the CFMMEU organising the industrial action?

[37] The CFMMEU can be captured by s.418(1)(c) of the Act if they are organising the unprotected industrial action, however there must be some evidentiary basis for a finding that it appears to the Commission that the CFMMEU is engaged in organising unprotected industrial action. The CFMMEU called no evidence in response to that put by DP World about their involvement in the unprotected industrial action.

[38] It is noted that the issue of contractors performing crane rope changes has been ongoing for some time 18 and has not been resolved between the CFMMEU and DP World and thus remains a live dispute.

[39] In this matter, the evidence before the Commission, some of with has been extracted above, undoubtedly supports the proposition that the CFMMEU is organising the unprotected industrial action. Its employee delegates and officials of the MUA have been active participants in the dispute with DP World as the evidence of Mr Hulme and Mr Farmer clearly demonstrates. There is no evidence that employees have embarked on the unprotected industrial action independently without the active advice/support of the MUA officials or its onsite employee delegates.

[40] I hence find that the unprotected industrial action was being organised by the CFMMEU, its MUA officials and delegates employed by DP World and thus the order will also cover the CFMMEU, its MUA officials and delegates employed by DP World.

[41] The scope and duration of the Order has been tailored to the findings above.

DEPUTY PRESIDENT

Appearances:

Mr D Perry and S Crilly, Seyfarth Shaw Australia Solicitors on behalf of the DP World Sydney Ltd
Mr A Slevin, Counsel on behalf of the CFMMEU

Hearing details:

Sydney
2021
30 March

Printed by authority of the Commonwealth Government Printer

<PR728245>

 1   Statement of Mr Hulme at [10]

 2   Ibid at [12-13]

 3   Ibid at [19-20]

 4   Ibid at [22-25]

 5   Ibid at [31]

 6   Attachment 2 to Mr Hulme’s statement

 7   S.474(1) of the Act requires a minimum deduction of 4 hours pay other than in certain overtime ban situations

 8   Written submissions of 30 March at [3]

9 Statement of Mr Hulme at [20-21]

 10   Ibid at [22]

11 Attachment RF1 to Mr Farmer’s statement

12 Statement of Mr Farmer at [24-25]

 13   Ibid at [28-29]

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

 15   Ibid at [11]

 16   S.417(1)(a)

 17   Attachment 6 to Mr Hulme’s statement

 18   See [2019] FWC 4884 and statement of Mr Hulme at [15-18]