FEDERAL COURT OF AUSTRALIA

DP World Sydney Limited v Maritime Union of Australia (No 1) [2012] FCA 217

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 paddy.crumlin@mua.org.au 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.

REASONS FOR JUDGMENT

1    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.

2    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.

3    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.

4    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.

5    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.

6    That application was heard by Vice President Watson of Fair Work Australia some time early on the morning of Saturday 10 March 2012.

7    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.

8    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.

Associate:

Dated:    12 March 2012

SCHEDULE

    No: (P)NSD392/2012

Federal Court of Australia

District Registry: New South Wales

Division: Fair Work

Second 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