Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWC 5212

[2020] FWC 5212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Patrick Stevedores Holdings Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(B2020/579)

DEPUTY PRESIDENT BULL SYDNEY, 2 OCTOBER 2020

Application for an order to suspend or terminate protected industrial action pursuant to s.424; ss.424(3) and (4) requirement to issue interim order where matter unable to be determined within 5 days– interim order issued.

Background

[1] On 28 September 2020, Patrick Stevedores Holdings Pty Ltd (the applicant) applied pursuant to s.424 of the Fair Work Act 2009 (the Act) to have the Fair Work Commission (the Commission) make an order terminating the right of its employees to continue to take protected industrial action in pursuit of claims made in negotiating a new enterprise agreement (the dispute).

[2] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) being a bargaining representative for the applicant’s employees to be covered by the proposed new agreement are named as the respondent to the application.

[3] The application has been made on the ground as set out at s.424(1)(d) of the Act being that the protected industrial action being engaged in is causing significant damage to the Australian economy or an important part of it.

[4] Applications made pursuant to s.424 of the Act are required to be dealt with expediently. Accordingly, on 28 September 2020 the Commission issued to the parties Directions concerning the filing of submissions and witness statements and the matter was listed for hearing on 1 October 2020.

[5] The Commission also convened a conciliation conference which was held over two days in an attempt to resolve the dispute and the hearing listed for 1 October 2020 was vacated. The conference was conducted in private and the parties were each represented in person and by telephone.

[6] During conciliation both parties amended their positions in an attempt to resolve the dispute and alleviate the need for the application to proceed. Despite these efforts, no agreement was able to be reached, leaving the application to have the protected action terminated still to be determined. The applicant has subsequently notified the Commission that it wishes to proceed with its application.

[7] The applicant has complied with their direction to file an outline of submissions and witness statements.

[8] The CFMMEU requested an extension of time to file their submissions and witness statements which were otherwise due on 30 September 2020 and for the hearing date to be relisted. Relevant witnesses for the CFMMEU were engaged in the conciliation conference over the course of 30 September 2020 and 1 October 2020.

[9] The Commission is satisfied in the circumstances that the adjournment request, which is not opposed by the employer, is reasonable and is therefore granted.

[10] Section 424(3) of the Act requires that an application to terminate protected industrial action is, as far as practical, to be dealt with within 5 days after it has been made. Where this is not possible the Commission must make an interim order suspending the protected industrial action to which the application relates, until the matter is determined.

[11] Based on the Commission having agreed to the extension of time request of the CFMMEU, such an order must issue and must remain in place until the matter is determined.

[12] Amended Directions will issue requiring the CFMMEU to file its submissions and witness statements in reply by 4:00pm on Monday 14 October 2020 with the applicant provided a right of reply by 12:00pm on Wednesday, 21 October 2020.

[13] The public hearing of the application will be relisted for 26 and 27 October 2020 commencing at 10:00am.

[14] The matter will also be listed for private conciliation at the Commission on 16 October 2020.

[15] The parties are otherwise encouraged to continue to attempt to resolve the dispute and the Commission remains available to assist in this process.

[16] A copy of the Interim Order (PR723224) and amended Directions will issue with this Decision.

DEPUTY PRESIDENT

Conference details:

Sydney (in person and by telephone)

2020

30 September

1 October

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