DP World Sydney Limited v Maritime Union of Australia (No 1)
[2012] FCA 217
•12 March 2012
FEDERAL COURT OF AUSTRALIA
DP World Sydney Limited v Maritime Union of Australia (No 1) [2012] FCA 217
Citation: DP World Sydney Limited v Maritime Union of Australia (No 1) [2012] FCA 217 Parties: DP WORLD SYDNEY LIMITED v MARITIME UNION OF AUSTRALIA AND OTHERS NAMED IN THE SCHEDULE File number: NSD 392 of 2012 Judge: PERRAM J Date of judgment: 12 March 2012 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – whether injunction under s 421(3) available and appropriate Legislation: Fair Work Act 2009 (Cth) ss 19, 408, 409, 410, 411, 418, 421(3) Date of hearing: 12 March 2012 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr J Fernon SC Solicitor for the Applicant: Freehills Counsel for the First Respondent: Ms L Doust Counsel for the Second to One Hundred and Eighty-Second Respondents: The Second to One Hundred and Eighty-Second Respondents did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 392 of 2012
BETWEEN: DP WORLD SYDNEY LIMITED
Applicant
AND: MARITIME UNION OF AUSTRALIA AND OTHERS NAMED IN THE SCHEDULE
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
12 MARCH 2012
WHERE MADE:
SYDNEY
UPON THE APPLICANT GIVING THE USUAL UNDERTAKING AS TO DAMAGES TO:
(a)submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely effected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and
(b) to pay the compensation referred to in (a) to the persons there referred to.
THE COURT ORDERS THAT:
1.An injunction be granted pursuant to section 421 of the Fair Work Act 2009 (Cth) restraining the First Respondent whether by its officers, servants, agents or otherwise from contravening terms 3.1 or 3.5 of the DP World Industrial Action Order 2012 dated 10 March 2012 or procuring or encouraging any other person bound by its terms to do so up until and including 26 March 2012.
2.The First Respondent forthwith comply with terms 3.2, 3.3 and 3.4 of the DP World Industrial Action Order 2012 dated 10 March 2012.
3.Each of the Second to One Hundred and Eighty-Second Respondents is restrained from contravening term 3.5 of the DP World Industrial Action Order 2012 dated 10 March 2012 or procuring or encouraging any other person bound by its terms to do so up until and including 26 March 2012.
4.Service of these Orders be effected by facsimile to (02) 9261 3481 and by email to [email protected] by 2.00 pm on 12 March 2012.
5.Notice of the making of these orders be given as soon as possible by contacting by telephone, each of the following persons and advising them of the terms of these Orders:
(a)Paddy Crumlin on 0418 379 660;
(b)Warren Smith on 0400 368 945; and
(c)Paul McAleer on 0417 468 424.
6.Any person affected by these Orders has liberty to apply on 6 hours notice or such shorter period as a judge of the Court may allow.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 392 of 2012
BETWEEN: DP WORLD SYDNEY LIMITED
Applicant
AND: MARITIME UNION OF AUSTRALIA AND OTHERS NAMED IN THE SCHEDULE
Respondent
JUDGE:
PERRAM J
DATE:
12 MARCH 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Before the Court is an application filed by DP World Sydney Limited (‘DP World’) for an injunction pursuant to s 421(3) of the Fair Work Act 2009 that the respondents, who are the Maritime Union of Australia (‘MUA’) and certain other persons, cease from contravening an order made by Fair Work Australia pursuant to s 418 of the same Act. Section 418 authorises Fair Work Australia to order that industrial action of a particular character stop.
The circumstances by which the present case arises are this. The MUA and DP World have been engaged in negotiations for a proposed enterprise agreement to replace an agreement which had previously existed. Those negotiations have been in train since the middle of 2011. Unrelated to those negotiations, it appears that there was a dispute between the Port of Auckland and stevedoring employees who are employed by that port. As a result of that dispute, unionised workers stopped work and imposed a ban on working certain shifts, including on a vessel known as the Maersk Brani. The ban was as a result of non-unionised workers stevedoring the Maersk Brani whilst it was in the Port of Auckland. Some time last week the vessel left Auckland en route to Sydney. It was due to berth at the Port of Botany at 3 am on the morning of Saturday 10 March 2012. DP World had a contract with the owners of the Maersk Brani to stevedore the vessel upon its arrival at Port Botany.
It is apparent that some time during the course of Friday 9 March 2012, or possibly earlier, DP World became concerned that it might be subject to industrial action in relation to the Maersk Brani by the MUA or by its members. Industrial action is defined in s 19 of the Fair Work Act in the following terms:
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees.
Protected industrial action is defined in s 408 of the Fair Work Act to include, relevantly, employee claim action, employee response action or employer response action. Each of those terms are then further defined in ss 409, 410 and 411. It is not necessary to set those provisions out; it suffices instead only to observe that in each case the industrial action must be linked to the negotiation of a proposed enterprise agreement.
The consequence of that requirement on the facts as they obtain, insofar as the Maersk Brani is concerned, is that any industrial action which was taken by the MUA or its members, in relation to the Maersk Brani, would not be with respect to a proposed enterprise agreement and accordingly would not be protected industrial action within the meaning of s 408. It was no doubt for that reason that DP World applied to Fair Work Australia for an order pursuant to s 418(1) on Friday 9 March 2012. That provision provides as follows:
418 FWA must order that industrial action by employees or employers stop etc.
(1)If it appears to FWA 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;
FWA 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.
That application was heard by Vice President Watson of Fair Work Australia some time early on the morning of Saturday 10 March 2012.
DP World is affected by the unprotected industrial action of the MUA and may therefore apply for an injunction: s 421(3)(a). On the material before me I am satisfied, as I must be under s 421(3)(b), that the respondents have contravened and propose to contravene a term of the order made by Vice President Watson. It seems to me that it is appropriate that I make the orders which are sought.
I will insert, at the end of order 1, the words ‘up until and including 26 March 2012’. Subject to those words being added and on Mr Fernon SC proffering the usual undertaking as to damages, which is an undertaking to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof and to pay compensation to the person referred to. On that undertaking, which is proffered, I make orders in accordance with the short minutes of order as modified by me and dated today.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 12 March 2012
SCHEDULE
No: (P)NSD392/2012
Federal Court of Australia
District Registry: New South Wales
Division: Fair WorkSecond Respondent: Warren Wilson
Third Respondent: Rolland Ago
Fourth Respondent: Noel Baker
Fifth Respondent: David Barber
Sixth Respondent: Mark Barrass
Seventh Respondent: Chad Bentley
Eighth Respondent: Shane Bentley
Ninth Respondent: Stephen Burke
Tenth Respondent: Naomi Cain
Eleventh Respondent: Murray Campbell
Twelfth Respondent: Michael Carrion
Thirteenth Respondent: Aaron Cartwright
Fourteenth Respondent: Grant Chappell
Fifteenth Respondent: Miles Chappell
Sixteenth Respondent: Brian Corr
Seventeenth Respondent: Raymond Cumming
Eighteenth Respondent: Adam Dalton
Nineteenth Respondent: Mark Deguara
Twentieth Respondent: Adam Desborough
Twenty First Respondent: Michael Dotti
Twenty Second Respondent: Kevin Duncan
Twenty Third Respondent: Rachel Evans
Twenty Fourth Respondent: Garry Field
Twenty Fifth Respondent: James Findlay
Twenty Sixth Respondent: Paul Fogarty
Twenty Seventh Respondent: Phillip Graham
Twenty Eight Respondent: Ryan Griffin
Twenty Ninth Respondent: Tarome Grimes
Thirtieth Respondent: Jacob Heath
Thirty First Respondent: Steven Heighes
Thirty Second Respondent: Mark Henson
Thirty Third Respondent: Billy Hoban
Thirty Fourth Respondent: Kevin Hoskins
Thirty Fifth Respondent: Brett Iredale
Thirty Sixth Respondent: Grant Jarratt
Thirty Seventh Respondent: Jack Jarratt
Thirty Eighth Respondent: Uwe John
Thirty Ninth Respondent: Ryan Johnston
Fortieth Respondent: Leon Judd
Forty First Respondent: Michael Kafrouny
Forty Second Respondent: Michael Liptak
Forty Third Respondent: Dean Longville
Forty Fourth Respondent: Scott Lovelock
Forty Fifth Respondent: Mitchell Magee
Forty Sixth Respondent: Nunzio Mazzu
Forty Seventh Respondent: Darren McDermott
Forty Eighth Respondent: Jye McFarlane
Forty Ninth Respondent: Adrian McKenzie
Fiftieth Respondent: Roy McNiven
Fifty First Respondent: Johnny Mullins
Fifty Second Respondent: Katherine Nassif
Fifty Third Respondent: Mark Nemsi
Fifty Fourth Respondent: Graeme Noble
Fifty Fifth Respondent: Brett O’Connell
Fifty Sixth Respondent: Clifford Parrott
Fifty Seventh Respondent: Ashley Patterson
Fifty Eighth Respondent: Odilon Tito Perez
Fifty Ninth Respondent: Wayne Poche
Sixtieth Respondent: Daniel Potloka
Sixtieth First Respondent: Michel Pritchard
Sixtieth Second Respondent: Blake Quirk
Sixtieth Third Respondent: Siimon Rampe
Sixtieth Fourth Respondent: Jason Reynolds
Sixtieth Fifth Respondent: Vanessa Richards
Sixtieth Sixth Respondent: Andrew Roberts
Sixtieth Seventh Respondent: Michael Rowley
Sixtieth Eighth Respondent: Craig Ruttley
Sixtieth Ninth Respondent: Michael Ryan
Seventieth Respondent: Robert Sait
Seventy First Respondent: Dean Sampson
Seventy Second Respondent: Robert Schlede
Seventy Third Respondent: Nathan Severino
Seventy Fourth Respondent: Craig Sheahan
Seventy Fifth Respondent: Brett Shears
Seventy Sixth Respondent: Andrew Shipman
Seventy Seventh Respondent: Anthony Smith
Seventy Eighth Respondent: Corey Smith
Seventy Ninth Respondent: James Supple
Eightieth Respondent: William Teaurima
Eighty First Respondent: Rowan Tibbitts
Eighty Second Respondent: Matthew Tremellen
Eighty Third Respondent: Christopher Tucker
Eighty Fourth Respondent: Simon Uzunovski
Eighty Fifth Respondent: Harry Varthalis
Eighty Sixth Respondent: Damian Viso
Eighty Seventh Respondent: Brian Walford
Eighty Eighth Respondent: Paul Weintz
Eighty Ninth Respondent: Gary Wilkins
Ninetieth Respondent: Karl Zeme
Ninety First Respondent: Adam Athos
Ninety Second Respondent: Drew Atkins
Ninety Third Respondent: Derek Baban
Ninety Fourth Respondent: Peter Batson
Ninety Fifth Respondent: Trevor Bezzina
Ninety Sixth Respondent: James Booth
Ninety Seventh Respondent: Andrew Boyd
Ninety Eighth Respondent: John Bremmer
Ninety Ninth Respondent: Leigh Brockman
One Hundredth Respondent: Haydin Browne
One Hundred and First Respondent: Nathan Campbell
One Hundred and Second Respondent: Dean Capararo
One Hundred and Third Respondent: Mark Carroll
One Hundred and Fourth Respondent: Adam Cawley
One Hundred and Fifth Respondent: Daniel Cerda
One Hundred and Sixth Respondent: Trent Christie
One Hundred and Seventh Respondent: Garry Clark
One Hundred and Eighth Respondent: Robert Clarke
One Hundred and Ninth Respondent: Matthew Crerar
One Hundred and Tenth Respondent: Glen Cross
One Hundred and Eleventh Respondent: Steven Crouch
One Hundred and Twelfth Respondent: Glenn Davies
One Hundred and Thirteenth Respondent: Grahame Davis
One Hundred and Fourteenth Respondent: Frank Debrincat
One Hundred and Fifteenth Respondent: Mark Dreyer
One Hundred and Sixteenth Respondent: Barry Fagerstrom
One Hundred and Seventeenth Respondent: Jayde Ferguson
One Hundred and Eighteenth Respondent: Matthew Fitzgibbon
One Hundred and Nineteenth Respondent: Stephen Fletcher
One Hundred and Twentieth Respondent: Clinton Gaughan
One Hundred and Twenty First Respondent: George Girgis
One Hundred and Twenty Second Respondent: David Gledhill
One Hundred and Twenty Third Respondent: Trevor Grant
One Hundred and Twenty Fourth Respondent: Noel Grouse
One Hundred and Twenty Fifth Respondent: Jason Haney
One Hundred and Twenty Sixth Respondent: Habib Hayek
One Hundred and Twenty Seventh Respondent: Alan Heness
One Hundred and Twenty Eight Respondent: Walter Hickman
One Hundred and Twenty Ninth Respondent: Darren Higgins
One Hundred and Thirtieth Respondent: Ryan Higgins
One Hundred and Thirty First Respondent: Kane Hodges
One Hundred and Thirty Second Respondent: Ronald Hollingsworth
One Hundred and Thirty Third Respondent: Benjamin Hughes
One Hundred and Thirty Fourth Respondent: Darren Jaques
One Hundred and Thirty Fifth Respondent: Stephen Jarvis
One Hundred and Thirty Sixth Respondent: Mark Johnson
One Hundred and Thirty Seventh Respondent: Michael Johnston
One Hundred and Thirty Eighth Respondent: Fletcher Jones
One Hundred and Thirty Ninth Respondent: Gregory Kennedy
One Hundred and Fortieth Respondent: Troy Lindsay
One Hundred and Forty First Respondent: Peter Lock
One Hundred and Forty Second Respondent: Mitchell Magro
One Hundred and Forty Third Respondent: Darren Maling
One Hundred and Forty Fourth Respondent: Christopher Marnoch
One Hundred and Forty Fifth Respondent: Jason McBride
One Hundred and Forty Sixth Respondent: Grant McDonald
One Hundred and Forty Seventh Respondent: Daniel McKeown
One Hundred and Forty Eighth Respondent: Kelly Moore
One Hundred and Forty Ninth Respondent: Barry Mourad
One Hundred and Fiftieth Respondent: Brett Munro
One Hundred and Fifty First Respondent: Craig O’Donovan
One Hundred and Fifty Second Respondent: Blake Oldroyd
One Hundred and Fifty Third Respondent: Nicholas Patterson
One Hundred and Fifty Fourth Respondent: Clifford Pearce
One Hundred and Fifty Fifth Respondent: Anthony Portelli
One Hundred and Fifty Sixth Respondent: Frank Portelli
One Hundred and Fifty Seventh Respondent: Daniel Proudlock
One Hundred and Fifty Eighth Respondent: Garry Purchase
One Hundred and Fifty Ninth Respondent: Frank Reale
One Hundred and Sixtieth Respondent: David Reilly
One Hundred and Sixtieth First Respondent: Dean Rhook
One Hundred and Sixtieth Second Respondent: Paul Rigoni
One Hundred and Sixtieth Third Respondent: Daniel Roccazzella
One Hundred and Sixtieth Fourth Respondent: Matthew Rogers
One Hundred and Sixtieth Fifth Respondent: Nengah Sadi
One Hundred and Sixtieth Sixth Respondent: John Sapounakis
One Hundred and Sixtieth Seventh Respondent: Ross Savas
One Hundred and Sixtieth Eighth Respondent: Scott Shaw
One Hundred and Sixtieth Ninth Respondent: Ronald Sigsworth
One Hundred and Seventieth Respondent: Andrew Skidmore
One Hundred and Seventy First Respondent: Michael Soligo
One Hundred and Seventy Second Respondent: Brett Spinks
One Hundred and Seventy Third Respondent: Alex St Flour
One Hundred and Seventy Fourth Respondent: Benjamin Stapley
One Hundred and Seventy Fifth Respondent: Michael Steel
One Hundred and Seventy Sixth Respondent: Garry Thomson
One Hundred and Seventy Seventh Respondent: Mark Walden
One Hundred and Seventy Eighth Respondent: Nicholas Wilmott
One Hundred and Seventy Ninth Respondent: Graeme Wilton
One Hundred and Eightieth Respondent: Lee Witherden
One Hundred and Eight First Respondent: Leonard Wolf
One Hundred and Eighty Second Respondent: Andrew Yiangou
0
0
1