STATEMENT

Fair Work Act 2009
s.418—Industrial action

DP World Sydney Limited
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2019/1996)

DEPUTY PRESIDENT BOOTH

SYDNEY, 3 APRIL 2019

[1] On Wednesday 3 April 2019 DP World Sydney Limited (DP World) and the Construction, Forestry, Maritime, Mining and Energy Union (MUA Division) (CFMMEU) attended the Fair Work Commission (Commission) for a listing in this matter.

[2] This application was lodged on Wednesday 27 March 2019 and was part heard on Thursday 28 March 2019 when an Interim Order was issued.

[3] This application arises amid enterprise bargaining between DP World and the CFMMEU to replace the DP World Sydney Enterprise Agreement 2015, the DP World Brisbane Enterprise Agreement 2016, DP World Melbourne Enterprise Agreement 2016, DP World Fremantle Enterprise Agreements 2015 (Agreements). The parties agree that cooperative and constructive bargaining is the foundation for achieving the sustainability of DP World’s business and the living standards of DP World employees.

[4] In private conference before me today, the parties have agreed the following:

1. The parties will resume bargaining for a twelve-week period (12-Week Period).

2. The parties will cease any and all industrial action.

3. DP World will continue to prioritise the allocation of VSEs who have an hours debit. It is acknowledged that the CFMMEU may continue the dispute in relation to the VSE payment.

4. The parties agree that the Introduction of Change processes in Fremantle and Melbourne will continue but a unilateral decision by DP World will not occur before the end of the 12-Week Period other than by agreement. This means forced redundancies will not be enacted within the 12-Week Period, if they are at all necessary. Voluntary Redundancies may occur after the processes within the Agreements have been adhered to with respect to consultation and potential mitigation of redundancies as identified within the Introduction of Change and Redundancy clauses in the Agreements. DP World agrees to discuss any issues concerning the Introduction of Change referred to above in enterprise bargaining.

5. The Income Protection Policy will be extended for the 12-Week Period.

6. The parties will table and discuss their respective Part B logs of claims at Part A meetings. A timetable of Part A & B meetings will be scheduled for the 12-Week Period.

7. DP World will discontinue this application. It is acknowledged that, should productivity performance warrant it, DP World will lodge a new s.418 application and will rely upon the historical data submitted as evidence in this application, as well as any new relevant data.

8. The parties will report back to the Commission on 2 May 2019. This report back will include a review of the productivity performance of DP World in the intervening period and the progress being made in enterprise bargaining.

9. The parties agree to adopt a neutral media stance during the 12-Week Period. Warren Smith is the spokesperson for the MUA. Andrew Adam is the spokesperson for DP World.

[5] I will convene a report back meeting at the Commission, 10/80 William St, East Sydney, at 10am AEST on 2 May 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

DP World Sydney Limited, represented by DP World Sydney Limited, and the Construction, Forestry, Maritime, Mining and Energy Union, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were before the Fair Work Commission in relation to industrial action and enterprise bargaining. DP World sought an order under the Fair Work Act 2009 to prevent the CFMMEU from taking protected industrial action, and for the Commission to make a declaration that the industrial action was unprotected. The CFMMEU opposed DP World’s application.

The main legal issue before the Commission was whether the industrial action by the CFMMEU was protected action under the Fair Work Act 2009, or unprotected action that should be prohibited. The CFMMEU argued that the industrial action was protected because it related to the negotiation of an enterprise agreement. DP World argued that the industrial action was unprotected because it related to the CFMMEU’s demands for changes to the terms of the new enterprise agreement, rather than the negotiation process itself.

The Commission accepted the CFMMEU’s argument that the industrial action was protected because it related to the negotiation of an enterprise agreement. The Commission found that the industrial action was aimed at securing a better agreement for the employees, and was not an attempt to force DP World to change the terms of the new agreement. The Commission also found that the industrial action was reasonable in the circumstances, and did not go beyond what was necessary to achieve its objectives. Accordingly, the Commission dismissed DP World’s application and found that the industrial action was protected action.

The Commission made an order that DP World discontinue its application, and directed the parties to resume bargaining for a twelve-week period and cease any and all industrial action. The Commission also directed the parties to report back to the Commission on 2 May 2019 regarding the progress of the enterprise bargaining and the productivity performance of DP World. The Commission did not make any orders regarding the terms of the new enterprise agreement, or the rights and obligations of the parties under the existing agreements.

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

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established