Maritime Union of Australia v DP World (Fremantle) Ltd
[2014] FCA 617
•12 June 2014
FEDERAL COURT OF AUSTRALIA
Maritime Union of Australia v DP World (Fremantle) Ltd [2014] FCA 617
Citation: Maritime Union of Australia v DP World (Fremantle) Ltd [2014] FCA 617 Parties: MARITIME UNION OF AUSTRALIA v DP WORLD (FREMANTLE) LTD (ABN 41 009 106 763) File number: NSD 575 of 2014 Judge: PERRY J Date of judgment: 12 June 2014 Catchwords: INDUSTRIAL LAW – Application for injunctive relief before the start of a proceeding – Where undertaking provided as to damages – Whether prospective applicant has demonstrated an arguable case – Whether the balance of convenience favours the grant of relief Date of hearing: 6 June 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Legislation: Fair Work Act 2009 (Cth) Number of paragraphs: 15 Counsel for the Prospective Applicant: Mr A Howell Solicitor for the Prospective Applicant: Slater & Gordon Counsel for the Prospective Respondent: Mr S Meehan Solicitor for the Prospective Respondent: Seyfarth Shaw Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 575 of 2014
BETWEEN: MARITIME UNION OF AUSTRALIA
Prospective ApplicantAND: DP WORLD (FREMANTLE) LTD (ABN 41 009 106 763)
Prospective Respondent
JUDGE:
PERRY J
DATE OF ORDER:
6 JUNE 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Prospective Applicant’s urgent application before the start of a proceeding made on 6 June 2014 is refused.
2.The costs of today be reserved.
3.There be liberty to apply.
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
GENERAL DIVISION
NSD 575 of 2014
BETWEEN: MARITIME UNION OF AUSTRALIA
Prospective ApplicantAND: DP WORLD (FREMANTLE) LTD (ABN 41 009 106 763)
Prospective Respondent
JUDGE:
PERRY J
DATE:
12 JUNE 2014 (PRONOUNCED ON 6 JUNE 2014)
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)BACKGROUND
This is an urgent application made by the Maritime Union of Australia (MUA) for an interim injunction to prohibit DP World (Fremantle) Limited (DP World) from implementing changes to the roster for its employees with respect to its Fremantle Port operations in Western Australia. Those changes were notified by DP World in the Introduction of Change– Implementation Notification dated 6 May 2014 (the Change Notification) and are proposed to commence on 9 June 2014 in accordance with, on DP World’s case, cl 22.4.1 of the DP World Enterprise Agreement 2011. Negotiations to date in the Fair Work Commission regarding the proposed changes pursuant to the dispute resolution provision in the Enterprise Agreement have failed and the Fair Work Commission has advised that it would be unable to arbitrate the dispute, for which provision is also made in the dispute resolution provision, until an unknown date after 9 June 2014. The injunction is sought to endure until the hearing and final determination of the matter or until further order of the Court.
This application was made by the MUA on Friday 6 June 2014. The matter was initially listed before me in the morning. Counsel for the proposed respondent, DP World, appeared, having been served with the documentation that morning, and sought to be heard. As a result, the application was adjourned until the afternoon for hearing in order to permit the legal representatives for the proposed respondent to review the documentation in support of the application and to prepare for the hearing, acknowledging that the extent of its preparation would be severely curtailed given the timing. Oral argument was completed early in the evening on 6 June and I delivered judgment shortly thereafter that evening. The urgency arises by reason of the fact that the changes which were sought to be injuncted would have commenced on Monday 9 June 2014 unless injunctive relief were granted.
EVIDENCE
In support of its application, the prospective applicant relied upon the affidavit affirmed by Adrian Evans, Deputy Western Australian Branch Secretary of the MUA. To the extent that leave was necessary, I granted leave for DP World, the prospective respondent, to appear and be heard at the hearing of the interlocutory application. In resisting the relief being sought by the MUA, the prospective respondent relied upon the affidavit affirmed by Jessica Blomfield on 6 June 2014 which was prepared following the adjournment of the matter in the morning and, as a consequence, as Counsel for DP World submitted, did not address all of the issues comprehensively and provide all of the detail that might otherwise have been provided.
THE SUBMISSIONS BY THE MUA IN SUPPORT OF THE GRANT OF THE INTERIM INJUNCTION
The MUA contended that it has an arguable case that implementation of the changes to the work rosters proposed by the Change Notification dated 6 May 2014 would breach clause 22.5 of the DP World Fremantle Enterprise Agreement 2011. It also contended that the balance of convenience weighs in favour of the grant of the injunction including on the basis that the practical difficulties that may ensue for the prospective respondent if the injunction is granted are of its own making. Specifically, it was said that DP World chose to take steps to implement the changes notwithstanding that it had been put on notice of the proposed application to this Court for interim relief and notwithstanding that the application made to the Fair Work Commission on 13 May 2014 advised that the MUA sought relief in terms that “the Commission urgently conciliate and, if necessary, arbitrate the matters in dispute.”
CONSIDERATION
I have decided that the application for an interim injunction should be dismissed having regard to the following considerations.
I accept that the alternative constructions of clause 22.5.4 of the Enterprise Agreement for which the MUA contended are arguable. It follows that, if I considered that the balance of convenience were in the prospective applicant’s favour, I would grant the relief sought. However, I consider that the balance of convenience is in DP World’s favour and, in all of the circumstances, do not consider that the fact that the prospective respondent was on notice that this application might be made is determinative of where the balance of convenience lies.
First, while the arguments by the prospective applicant are arguable, I do not consider that they are strong.
Secondly, I accept DP World’s evidence that if the injunction were granted it will negatively impact the company’s ability to service a vessel due to arrive at the Fremantle terminal on 9 June 2014 for the reasons given by Ms Blomfield in her affidavit at paragraph 25. I also accept the unchallenged evidence of Ms Blomfield that DP World may be subject to potential penalties by the shipping lines as a result of delays to servicing the vessels consequent on likely labour availability issues. In this regard, I note that the MUA was initially prepared to give an undertaking, only if required, for the increased costs to DP World of labour that might flow to it as a result of the interlocutory injunction. However, the concern was raised that this undertaking would not cover the potential penalties which DP World may suffer, to which I have referred, or other losses, such as through claims for damages by third parties.
After adjourning the Court briefly to consider my decision and returning to deliver judgment on the application for interlocutory relief, counsel for DP World very properly raised with me that, despite his earlier submissions, he was not aware of there being any authority to suggest that an undertaking for damages in the usual form would not be appropriate in proceedings of this nature. Counsel for the prospective applicant also indicated that the MUA was in fact prepared to give the usual undertaking as to damages. While this to some extent did alleviate the concerns identified by DP World, it does not necessarily cure the inconvenience that may potentially be suffered by third parties, including the ship proposing to berth on 9 June 2014. The evidence does not permit me to be confident that any such prejudice would necessarily be met by the MUA’s proposed undertaking as to damages.
Thirdly, I accept the prospective respondent’s submission that remedies are available under the Fair Work Act 2009 (Cth) to compensate employees in the event that their claim that implementation of the changes to the roster would breach the Enterprise Agreement is ultimately upheld.
I therefore find that the prospective applicant’s urgent application before the start of a proceeding made on 6 June 2014 should be refused.
I note that in reaching my decision I have not given any weight to the further submission by DP World that the MUA has failed to act with appropriate expedition in all of the circumstances in seeking an arbitrated resolution of the dispute. These submissions did not, in my view, give proper weight to the fact that the notice of dispute to the Fair Work Commission sought an arbitrated resolution from the outset if that should prove necessary, that is, one can reasonably infer, if a negotiated outcome was not achieved.
COSTS
The question of costs on the application for interlocutory relief is complicated by the fact that substantive proceeding may or may not ultimately be filed. In those circumstances, I will reserve the question of costs and will make an order that the parties have liberty to apply so that, if further proceedings are instituted, it may well be that the appropriate order is that costs follow the event. If proceedings are not ultimately instituted then the matter can be relisted back before me for a determination on the issue of costs. The parties intimated at the hearing that they were agreeable to the issue of costs being dealt with in this way.
URGENCY AND REASONS
Finally, due to the time-critical nature of the application before me on 6 June 2014 and the need for each of the parties to have the question resolved as a matter of urgency, I indicated to the parties during the hearing that, subject to the parties’ views, I did not propose to provide detailed written reasons. The parties indicated that they were content for me to proceed in this way and for me orally to pronounce brief reasons identifying the considerations that led me to the decision that I ultimately made.
Following dismissal of the application at the hearing, a request was made for these reasons to be published. After consulting with the parties, I considered it appropriate in the circumstances to publish my brief reasons in the form of these short reasons for judgment.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 12 June 2014
0
0
1