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

[2018] FWC 2745

[2018] FWC 2745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

DP World Sydney Limited
v
Construction, Forestry, Maritime, Mining and Energy Union and Others
(C2018/2434)

DEPUTY PRESIDENT BULL SYDNEY, 17 MAY 2018

S.418 Order to stop industrial action at Port Botany New South Wales. Whether Industrial action was agreed or authorised by employer. Role of union in organising industrial action.

[1] On the evening of 9 May 2018 the Fair Work Commission (the Commission) issued an Order pursuant to s.418(1) of the Fair Work 2009 (Cth) (the Act) [PR606952]. The Order required the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), including its office-holders and those of its delegates who are employees of DP World Sydney Limited (DP World) at the Port Botany terminal to stop organising, and not organise, any industrial action involving any of the DP World Variable Salary Employees (VSEs) employed under the DP World Sydney Enterprise Agreement 2015 (the Agreement).

[2] The Order further required each VSE to stop engaging in industrial action in the form of refusing to make themselves available for allocation for work commencing on 10 May 2018 and not to engage in industrial action being a failure or refusal to perform any work, ban on the performance of work, or failure or refusal to attend for work at the DP World Port Botany terminal on 10 May 2018.

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

Background

[4] On the evening of Tuesday 8 May 2018, at 10:50pm an application was made to the Commission by DP World for an order to stop industrial action by employees under s.418 of the Act. The application sought an order from the Commission that unprotected industrial action stop, not occur and not be organised. The proposed order was directed at the 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 or eligible to be members who are employed at DP World’s terminal at Port Botany in NSW whose work is regulated by the Agreement.

[5] The Agreement has not yet passed its nominal expiry date of 28 February 2019.

[6] Section 420(1) of the Act requires that as far as practicable, an application under s.418 must be determined within 2 days after it is made. An order for substituted service was sought by DP World as it was said to be impracticable for DP World to serve each employee in accordance with the Fair Work Commission Rules 2013 (Cth). The application for substituted service was granted.

[7] The matter was listed for hearing at 4:00pm the following day, 9 May 2018. At the hearing DP World and the CFMMEU sought and were granted leave under s.596(2)(a) of the Act to be legally represented. Ms Bernasconi appeared for DP World and Mr Slevin of counsel for the CFMMEU. Mr Slevin’s appearance was confined to the CFMMEU; there was no appearance or representation on behalf of employees.

DP World’s Contentions

[8] Evidence on behalf of DP World was given by Mr Bastiaan Hokke, General Manager, Operations at the Port Botany terminal who also provided a witness statement. 1 On objection from Mr Slevin a number of opinion comments in Mr Hokke’s witness statement were struck out.

[9] Mr Hokke’s evidence was that employees working under the Agreement are employed as:

•  Fixed Salary Employees (FSEs) who are permanent employees working a fixed roster; or

•  Variable Rostered Employees (VSEs) who are also permanent employees who do not work a fixed roster but are paid at least a guaranteed minimum fortnightly wage; 2 or

•  Supplementary employees who are casual and engaged to supplement FSEs and VSEs.

[10] As provided for by subclause 8.12 of the Agreement, DP World conducts an annual Labour Review of its workforce numbers in consultation with the Maritime Union of Australia 3 and the Employee Representative Committee (ERC.)

[11] The MUA analyse the data provided by DP World and usually put forward a proposal for DP World to increase the number of permanent employees. The proposal is then discussed at Labour Review meetings held between DP World, representatives from the MUA and the ERC of which the employee representatives are all MUA delegates. 4

[12] The 2018 Labour Review commenced in March 2018 and six meetings have been held to date. Attendance at the meetings has included MUA Sydney Branch Secretary Paul McAleer and MUA delegates Brad Dunn, Rodd Swain and Andrew Gardner.

[13] At a Labour Review meeting on 2 May 2018 Mr Hokke told attendees that DP World could only offer four FSE positions in the Engineering Division. In response Mr McAleer said words to the effect:

‘I have 500 things to do and since nobody in DP World is listening to me, I’ll go to where the people will listen to what I have to say: our members’

[14] Mr McAleer then walked out of the meeting.

[15] On the same day DP World Stevedoring Manager, Mr Ben Crosky informed Mr Hokke that rumours were circulating that employees were refusing shift extensions and overtime and that irregularly engaged employees (VSEs and Supplementary employees) were starting to scratch all shifts on Thursday 10 May 2018.

[16] Scratchings occur where an irregularly engaged employee makes themselves unavailable to be allocated work in accordance with clause 14.3 of Part B of the Agreement. Mr Hokke stated that irregularly engaged employees are permitted to scratch 2 days in every 7. 5

[17] In respect of the alleged industrial action Mr Hokke stated that on 3 May 2018, he became aware that VSEs had received a text message. It was his understanding the text message had been sent by the ERC. The text message was attached to Mr Hokke’s witness statement and states as follows:

‘From committee:

Afternoon all.

VSE’s can you all

please scratch

Thursday 10th of

May. Our

committee met

with the company

today. The

company aren’t

playing fair so we

won’t. Nothing

can go on

Facebook about

this. Hopefully we

can all stick

together and ALL

scratch.

Pass it on

to others.’

[18] On 8 May 2018, Brad Dunn and Andrew Gardner, MUA delegates and members of the ERC, advised DP World that the proposal previously put forward by the ERC regarding FSE positions was revoked 6 and that Mr McAleer’s position was that DP World should offer at least 27 FSE positions.

[19] Mr Hokke’s evidence was that as at 8 May 2018, the total scratchings for Thursday 10 May 2018 was 225 out of a total of 270 irregularly engaged employees. This figure was comprised of 207 of 249 VSEs and 18 of 21 Supplementary employees. Mr Hokke stated that based on past experience there was a clear spike in the number of scratchings for Thursday 10 May 2018.

[20] On reviewing the notified scratchings over the period between 1 January 2017 and 22 May 18 (excluding 10 May 2018) the lowest number of scratchings on any day was 6 and the highest 99. The lowest number of scratchings in the same period on a Thursday was 7 and the highest 88.

[21] Mr Hokke considered that the 225 notified scratchings for 10 May 2018 were exceptional in that they were far in excess of the highest previous number of scratchings on any one day of the week.

[22] Mr Hokke attached to his witness statement a spreadsheet which contained a number of tables and graphs to demonstrate the ‘spike’ in scratchings for 10 May 2018. For example the table below reflected the number of scratchings per day from 30 April 2018 to 13 May 2018.

[23] Mr Hokke recalled a conversation he had on or around Tuesday 8 May 2018 with Mr Crosky, the Stevedoring Manager, who advised him that while speaking to MUA delegate and ERC member Brad Dunn about the FSE upgrades Mr Dunn stated that:

‘Thursday will be a difficult day.’

[24] Mr Hokke gave evidence that if the irregularly engaged employees were not available for work on Thursday 10 May 2018, it would cause significant interruption and delay to DP World’s operations at the Port Botany terminal leading to DP World and its customers suffering significant financial and other loss.

[25] No further evidence was adduced on behalf of DP World.

[26] DP World submitted that the action of the 225 irregularly engaged employees making themselves unavailable to work on 10 May 2018 was a coordinated campaign and unlawful industrial action being a ban, limitation or restriction on the performance of work or the offering for work by an employee and a failure or refusal to attend for work. DP World argued that on this basis the Commission must make an order that the unprotected action not occur and not be organised.

[27] DP World also submitted that the only available inference was that the unprotected action was being directed or coordinated by the CFMMEU through its employees and officials 7 and any order should operate to include the CFMMEU its officials and employee and its delegates.

[28] DP World submitted that the Agreement does not authorise irregularly engaged employees to engage in the industrial action of making themselves unavailable for work on 10 May 2018, nor has DP World agreed that irregularly engaged employees can engage in the industrial action.

CFMMEU’s Contentions

[29] The CFMMEU called no evidence and relied on its oral submissions. Mr Hokke was cross examined on his understanding of the authorship of the text message attached to his witness statement. His evidence was otherwise uncontested.

[30] Without conceding that industrial action was occurring, the CFMMEU submitted that there was no evidence that it was organising industrial action. The CFMMEU submitted that the text message annexed to Mr Hokke’s witness statement was not evidence that the CFMMEU was involved in its authorship.

[31] The CFMMEU also argued in the alternative that the action taken by employees was authorised or agreed to by the employer by virtue of subclause 14.3 VSE/Supplementary Unavailability Clause found in Part B of the Agreement and was therefore not industrial action by operation of the exception contained s.19(2)(a) of the Act. The CFMMEU submitted that subclause 14.3 permits irregularly engaged employees making themselves unavailable for work, as such the action is authorised and agreed to by the employer of the employees pursuant to the Agreement.

Findings

[32] 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.’

[33] As can be seen from the words of s.418(1) 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, or 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. 8 This also involves ‘to a significant degree an evaluative assessment with a degree of subjectivity.’9

Is there industrial action?

[34] The Commission has before it unchallenged evidence that irregularly engaged employees had notified that they would be unavailable for work on Thursday 10 May 2018, in numbers that were inconsistent with the daily notifications that ordinarily occur. The inconsistency was an increase in scratching notifications from a previous high of 99 on any day of the week and 88 on any Thursday (in the period 1 January 2017 to 22 May 2018) to 225 scratching notifications for Thursday 10 May 2018. These figures, combined with the text message attached to Mr Hokke’s witness statement reveal a campaign encouraging employees to notify their unavailability for work on 10 May 2018 and leads to a conclusion that the spike in scratchings are part of a coordinated and collective industrial campaign relating to the dispute with the MUA regarding the 2018 Labour Review.

[35] The unprecedented notification of scratchings for 10 May 2018 by employees is action which is a restriction or limitation on the performance of work.

[36] I find that the unusually excessive notification of scratchings for 10 May 2018 by irregularly engaged employees is industrial action that is happening, threatened and organised.

Is the action authorised or agreed to by the employer?

[37] Subclause 14.3 VSE/Supplementary Unavailability Clause of Part B of the Agreement reads as follows:

‘VSE/Supplementary Unavailability Clause

14.3.1 A VSE must make themself reasonably available to meet the minimum guarantee and business requirements.

14.3.2 At the commencement of this Agreement the following unavailability measures will apply:

(a) A VSE/Supplementary may make themself unavailable to be allocated for work (scratch) up to 24 shifts per 28 day unavailability measurement cycle.

(b) A VSE/Supplementary must be available to work on a variety of shifts across both weekdays and weekends. The Company expects a VSE/Supplementary to make themselves available for a minimum of 50% (4 of the 8) weekend shifts per 28 day cycle.

(c) A VSE/Supplementary will be permitted to exceed the scratching threshold of 24 scratchings on two occasions in any 12 month period by no more than 2 days (6 scratchings).

(d) The Company will limit the total unavailability of VSE and Supplementary employees to a maximum of 50% on weekend shifts (Day, Evening, Night Saturday and Sunday).

14.3.3 Should there be insufficient irregular labour availability this will be first raised at the Site Committee meeting. If after consultation with the Site Committee there is no improvement in availability, the Company may after six weeks engage more VSE’s.’

[38] VSE/Supplementary employees are entitled to make themselves unavailable to be allocated shifts subject to certain criteria being met. These criteria include:

• VSEs making themselves reasonably available to meet the minimum guarantee and business requirements; and

• VSE/Supplementary employees making themselves available for a minimum of 50% of weekend shifts per 28 day cycle.

• There being a total unavailability limit to a maximum of 50% on weekend shifts of VSE/Supplementary employees.

[39] The requirement for VSEs to make themselves reasonably available to meet the minimum guarantee and business requirements have no application to Supplementary employees. Supplementary employees do not receive a minimum wage/salary guarantee under the Agreement.

[40] DP World relied on Australian Workers Union v BlueScope Steel Limited 10(BlueScope), a 2008 decision of a Full Bench of the Australian Industrial Relations Commission, determined under the Workplace Relations Act 1996. In that decision employees choosing not to work a voluntary overtime shift was held to be industrial action, not authorised or agreed to by the employer.11

[41] In the BlueScope case the employer accepted that employees have a right to decline to volunteer to work the overtime shift. However the Full Bench noted that how this this right arose was not explained and noted that the applicable award required employees to work reasonable overtime.

[42] In any event the Full Bench held that:

‘There can be no doubt that the coordinated and collective refusal of employees to volunteer to work their 21st shift was industrial action within the ordinary industrial usage of that expression. A collective refusal to work overtime is a classic example of industrial action in that sense.’ 12

[43] It then went on to consider whether the action was excluded from the definition of ‘industrial action’ on the basis that it was action by employees that is authorised or agreed to by the employer of the employees. 13

[44] The Full Bench adopted the approach to the definition of ‘industrial action’ taken in an earlier Full Bench case; the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited 14 by stating that context and motive were relevant to determining whether particular conduct amounted to industrial action.15

[45] DP World relies upon paragraph [18] of the BlueScope decision where the Full Bench concluded:

‘At the very least, the action in this case was a coordinated and collective limitation on the acceptance of or offering for work by employees, namely voluntary overtime constituted by the 21st shift, and was therefore action of a kind coming within s.420(1)(b). It had the effect that employees who would ordinarily volunteer for overtime did not do so (and, as such, undoubtedly had an industrial character). While the matter is not without some difficulty, we think the better view is that BlueScope could not be said to have authorised or agreed to that action. The action in this case was not merely a case of employees choosing to exercise their “right” to decline to work the 21st shift. Here, an essential feature of the action was that this occurred pursuant to an understanding between the employees and in a way that was coordinated and collective. While BlueScope could be said to have authorised individual employees not to volunteer for overtime it could not be said to have authorised or agreed to a coordinated and collective refusal of voluntary overtime constituted by the 21st shift.

It follows that the exclusion in s 420(1)(e) is not made out …’

[46] DP World submitted that the action is coordinated and collective which takes it out of the purview of subclause 14.3 of the Agreement. It is said that the mass notification of irregularly engaged employees of their unavailability for work on 10 May 2018, is an improper exercise of the right provided under subclause 14.3.

[47] The CFMMEU relied on two recent Federal Court decisions in submitting that the action of employees was not industrial action as it was authorised and agreed to by terms of the Agreement.

[48] In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157, Reeves J dealt with a situation where employees were holding twice daily, two hour union meetings at the Carrara Sports and Recreation Project on the Gold Coast (the Project). A number of enterprise agreements applied to construction workers on the Project, the agreements all contained provisions relating to the right of employees to attend paid union meetings of up to 2 hours at a time. In particular, 4 agreements provided that employees could attend union meetings or participate in union activities during working hours with up to 2 meetings/union activities being held/conducted either consecutively or separately per shift.

[49] The Australian Building and Construction Commissioner (ABCC) contended that the union meetings were unlawful because they constituted industrial action within the meaning of s.19 of the Act. The exclusion in s.19(2)(a) did not apply as the CFMEU was not making a bona fide use of the union meeting clauses.

[50] Reeves J did not accept the ABCC’s contention that the union meeting clauses should not be construed to permit union meetings for the purpose of delaying and disrupting the orderly progress of work at a workplace. 16 The clauses were expressed in reasonably clear terms including the nature of the activities that could be undertaken, the meetings were authorised and agreed under the provisions of the various union meeting clauses.

[51] In, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No3) [2018] FCA 564, Collier J dealt with a similar set of circumstances concerning union meetings clauses in enterprise agreements. In that case the ABCC argued that the decision of Reeves J should not be followed as it was clearly wrong.

[52] Collier J held that s.19(2)(a) of the Act contemplates authorisation or agreement by the employer of action by employees, without restriction on the nature of the action of the employees (including potential unlawfulness) 17 and further stating:

“[39] There is nothing in ss 19(1) or 19(2)(a) of the FW Act which confines conduct that may be authorised to only lawful activities. Unlawful conduct may contravene the FW Act – this does not mean, however, that such conduct is not “industrial action” which is incapable of being authorised or agreed to by an employer and, therefore, excluded from being subject to the regulatory scheme.

[40] Section 194(e) deems “unlawful” a term of an enterprise agreement which is inconsistent with a provision of Part 3-3 of the FW Act. On its face, cl 32.9 does not undermine the policy and scheme of the FW Act, and is certainly not inconsistent with Pt 3-3. It may be that the objective of the union in conducting certain union meetings or promoting certain union activities is contrary to provisions of the FW Act, however that is secondary to the operation of the clause, rather than required by the clause itself. The union meeting clause in this case sets out the agreement of the employer, where certain conditions are met, to employees attending union meetings or participating in union activities during working hours. It is an unwarranted strain on the language of cl 32.9 to construe it by reading in purpose or objectives not specifically contemplated, as contended by the ABCC. In my view, such an interpretation would be untenable.

[41] Further, s 19(2)(a) of the FW Act is clearly intended to allow an employer to authorise or agree to certain conduct of employees, identified in s 19(1), which would otherwise be subject to the regulatory framework of the FW Act, including Pt 3-3. Performance of work in a manner different from that in which it is customarily performed (s 19(1)(a)), bans, limitations or restrictions on the performance of work by employees (s 19(1)(b)) and failure or refusal by employees to attend for work or perform work when there (s 19(1)(c)) are obviously the types of industrial action which are contemplated by Pt 3-3 of the FW Act, including s 417. Indeed, the Stoppages in this case clearly fell into one or more of the categories of industrial action set out in s 19(1).

[42] If, in the terms of a clause such as that currently before the Court, the employer sought to qualify the conduct of employees to which the employer agreed by reference to the consequences of the conduct (including that relevant to Pt 3-3), it was open to the parties to specifically so agree. The interpretation advanced by the ABCC seeks to import such extraneous qualifications into the language agreed by parties, and subverts the purpose of s 19(2)(a) in allowing the parties to reach their own agreement on what the employer can authorise or agree to. I reiterate the observation of Reeves J in Carrara that the Court is not permitted to redraft the terms of an enterprise agreement to achieve the outcome identified by the ABCC. Again, such an interpretation is untenable.”

[53] I accept as stated above, that in the circumstances existing in this matter that there was a coordinated and collective refusal of employees to make themselves available for work on 10 May 2018, which would met the definition of industrial action in s.19(1)(b) being a ban, limitation or restriction on the performance of work by an employee or the acceptance of or offering for work by an employee. This is evidenced by the unusual and unprecedented spike in scratchings for that day and the content of the text message that was brought to Mr Hokke’s attention.

[54] The more contentious issue is whether the industrial action is excluded by way of s.19(2) of the Act as it is action ‘authorised’ and ‘agreed’ to by the employer. The words of subclause 14.3 are clear and do not require the Commission to search for any meaning other than what the words plainly state. An employee is entitled to make themselves unavailable to be allocated work subject to certain expressed limitations. The combination of statistics produced by DP World was evidence that while ‘scratchings’ are a normal and regular occurrence by employees, the spike in scratching for 10 May 2018 was not normal or regular.

[55] As noted above, under subclause 14.3.1 a VSE has an obligation to make themselves reasonably available to meet the minimum guarantee and business requirements. They are therefore not entitled to make themselves unavailable in an effort to thwart DP World’s business requirements. Mr Hokke’s evidence went to the disruption that would be caused if the industrial action proceeded, as its business requirements would not be met.

[56] The evidence put forward by DP World is sufficient to satisfy the Commission that there exists an industrial dispute concerning the annual review of workforce numbers and that the coordinated and collective action of VSE’s not to make themselves available for work on 10 May 2018 is inconsistent with the Agreement requirement to make themselves reasonably available to meet DP World’s business requirements. On this basis the action of VSEs is not authorised or agreed to by the employer by virtue of clause 14.3.1 of the Agreement.

[57] While Supplementary employees may only make themselves unavailable in accordance with clause 14.3 of the Agreement, they are not included in the obligation to meet the minimum guarantee and business requirements. I am unable to accept DP World’s submission that Supplementary employees notifying their unavailability to work on 10 May 2018 is not authorised or agreed to by DP World as it is an improper exercise of their right to do so under the Agreement. To accept this proposition I would need to do what Collier J held was impermissible; read into the clause a purpose or objective not specifically contemplated being that the right to notify of their unavailability is not to be exercised against DP World’s interests.

[58] The reliance by DP World on the decision in BlueScope in my view is not sustainable on the basis that the decision did not turn on an alleged employee ‘right’ contained in an enterprise agreement, 18 as was the case in the two recent Federal Court decisions of JJs Reeves and Collier.

Was the CFMMEU organising the industrial action?

[59] It was put by DP World that the only available inference to draw in the circumstances of this application was that the CFMMEU was directing or coordinating the industrial action through its employees and officials. 19 The CFMMEU submitted that this conclusion was not open on the evidence.

[60] There must be some evidentiary basis for a finding that it appears to the Commission a party is engaged in organising industrial action.

[61] I first note that the CFMMEU called no evidence in response to that put by DP World or to oppose the application in the terms sought by DP World.

[62] The Commission must bear in mind the urgency in which s.418 applications are made and heard. This urgency can result in the Commission being faced with evidence of a lesser standard than might otherwise be expected from parties to a matter where considerable notice of a listing is given, as the best evidence is not always available at short notice. This applies to all parties. No party in this application sought an adjournment of proceedings.

[63] What was before the Commission is series of events that the Commission was asked to draw an inference from:

•  The 2018 Annual Labour Review commenced in March 2018 as per subclause 8.12 of the Agreement.

•  The Labour Review was held in consultation with a representative from the CFMMEU (the Sydney Branch Secretary of the MUA Division of the CFMMEU) and the ERC.

•  The ERC members were all CFMMEU delegates 20 and a number of ERC meetings were held.

• The ERC made a number of claims and counter claims during their meetings which were not agreed to by management.

• At the ERC meeting of 2 May 2018, Mr McAleer, a CFMMEU official, walked out of the meeting saying words to the effect that as DP World weren’t listening, he would speak to his members.

• On the same day DP World became aware that irregularly engaged employees were starting to make themselves unavailable to work on 10 May.

• On 3 May 2018, DP World became aware of a text message referring to being from the ‘committee’ and asking all VSE’s to scratch Thursday 10 May 2018.

• On 8 May 2018, the last ERC counter claim made on 7 May was revoked by two ERC members on the stated authority of Mr McAleer.

• DP World was advised (through two ERC members) that Mr McAleer had put forward his own position on FSE positions.

•  Around 8 May 2018 a CFMMEU delegate and ERC member advised management that Thursday (10 May 2018) would be a difficult day.

[64] In the Full Bench decision of Transport Workers’ Union (NSW) v TNT Australia Pty Ltd 21 the following was stated:

‘If in a particular case a union has been representing employees in negotiations and otherwise active in representing their interests, and unprotected industrial action is occurring or threatened, there is no good reason why an order that industrial action stop or not occur should not be buttressed by an order against that union. It is a matter for the discretion of the member of course, but there is no reason of construction or policy to limit the Commission’s discretion in that respect.’

[65] The Commission is comfortable in concluding that the industrial action is linked to the Labour Review dispute. There is clear evidence of CFMMEU involvement in the Labour Review dispute and as a result I draw the requested inference that the CFMMEU was a participant in the organisation of the industrial action of VSEs. That is, the Commission is not prepared to accept that the VSEs have taken the industrial action in a coordinated and collective manner independent from the advice/support of the CFMMEU officials or its onsite employee delegates.

[66] I hence find that unprotected industrial action by VSEs was happening, threatened and impending and being organised by VSEs in conjunction with the CFMMEU, its officials and delegates employed by DP World.

[67] The scope and duration of the Order has been tailored to the Commission’s findings above.

[68] If a VSE’s right to decline to make themselves unavailable for work on 10 May 2018 was an exercise of their right under the Agreement for reasons other than to thwart the business requirements of DP World, this amounts to the enforcement of the Order and is thus a matter for a Court. 22

DEPUTY PRESIDENT

Appearances:

Ms R Bernasconi, solicitor, on behalf of the Applicant

Mr A Slevin, counsel, on behalf of the CFMMEU

Hearing details:

Sydney

2018

9 May

Printed by authority of the Commonwealth Government Printer

<PR607132>

 1   Exhibit A1

 2   Sub clause 30.3 of the Agreement provides a minimum salary for VSE’s of $73,687

 3   The term MUA is taken to be a reference to the Maritime Union of Australia Division of the CFMMEU

 4   Witness Statement of Mr Hokke at [21]

 5   Witness Statement of Mr Hokke at [19]

 6   DP World’s application F14 refers to a counter proposal put by MUA delegate Brad Dunn on 7 May

 7   Page 4, Form F14 application for an order to stop etc. (unprotected) industrial action

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

 9   Ibid at [11]

 10 (2008) 171 IR 115

 11   The definition of ‘industrial action’ under the Workplace Relations Act 1996 is for the purposes of this matter the same as that contained in the Fair Work Act 2009

 12 (2008) 171 IR 115 at [8]

 13 As per s.420(1)(e) of the Workplace Relations Act 1996

 14 (2004) 133 IR 197

 15 (2008) 171 IR 115 at [10-11]

 16   At [107]

 17   At [38]

 18 (2008) 171 IR 115 at paragraph [13] it is observed that no statutory agreements were tendered in evidence

 19   Form F14 at [21]

 20   Mr Hokke’s statement at [21]

 21 (2006) 154 IR 256 at [14]

 22   See BlueScope at [23]