FEDERAL COURT OF AUSTRALIA

DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 87

ORDERS

THE COURT ORDERS THAT: Upon the applicants by their counsel having given to the Court the usual undertaking as to damages:

1.    The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, by its officers, employees, delegates or agents be restrained from organising or threatening to organise any industrial action by stevedoring employees of the applicants until 4.00 pm on Friday, 13 March 2020, unless this order is expressly discharged by this Court before then.

2.    The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, take all reasonable steps to inform its members who are stevedoring employees of the applicants of order 1 above by no later than midnight on 31 January 2020. This may be done by way of a text message to each such member.

3.    Liberty to apply on 24 hours’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1    On 30 January 2020, I heard an application for an injunction pending a final hearing, which is proposed to take place on 12 and 13 March 2020. The originating application and statement of claim were filed on 22 January 2020. A defence is ordered to be filed by 14 February 2020.

2    The central question at the final hearing will be whether past and continuing industrial action is adverse action or coercion in contravention, respectively, of s 346 and/or s 348 of the Fair Work Act 2009 (Cth). All references in these reasons to legislative provisions are references to the Fair Work Act.

Relevant legal principles for injunctive relief

3    The authorities relating to the principles applicable to a grant of interlocutory relief provide as follows:

(1)    In ABC v O’Neill [2006] HCA 46; 227 CLR 57 it was stated that for a plaintiff to make a prima facie case (at [65] per Gummow and Hayne JJ):

it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.

Their Honours went on to quote with approval Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (per Kitto, Taylor, Menzies and Owen JJ):

How strong the probability needs to be depends, no doubt, upon the nature of the rights [asserted] and the practical consequences likely to flow from the order [sought].

I interpose the comment that in this case, it is not so much a case of preserving the status quo, as interrupting a status quo that would otherwise have existed of industrial action taking place.

(2)    In Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 it was stated (at [67]):

when considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience.

(3)    In Bullock v The Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 19; 5 FCR 464, Woodward J stated at 472:

The only point I would wish to add for myself is that, when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to continue to bear in mind the apparent strength of the applicants’ case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

Overview

4    Each of the four applicants is a company which is a wholly-owned subsidiary of DP World Australia Limited. DP World Australia and its four subsidiaries who are the present applicants are part of a corporate group that operates a business of container stevedoring. The four applicant companies each operate a container stevedoring terminal, respectively at Port Botany, New South Wales, the Port of Melbourne, the Port of Brisbane, and the port of Fremantle in Western Australia. The respondent is the Construction, Forestry, Maritime, Mining and Energy Union. The impugned industrial action concerns members of the Maritime Union of Australia (MUA) Division of the Union, which was formerly a separate union, the Maritime Union of Australia.

5    As relevant to this proceeding, the Fair Work Act provides a regime under which industrial action may take place lawfully as “protected industrial action” provided it is for a proposed enterprise agreement and it is an “employee claim action”, an “employee response action” or an “employer response action” for that agreement: s 408. This proceeding concerns “employee claim action”, which is governed by s 409. Such action for a proposed enterprise agreement must, amongst other things, be “organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters”: s 409(1)(a) (emphasis added).

6    The term “permitted matters” encompasses the matters listed in s 172(1). Among those matters are those “pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement”: s 172(1)(a). Thus, even if industrial action is about permitted matters listed encompassed by s 172(1), if it is also about non-permitted matters because they do not fall within the terms of that provision the industrial action is not protected industrial action.

7    A person “engages in industrial activity” if, inter alia, that person takes part in industrial action: s 347(f). The term “industrial action” is defined in s 19, but there is no need to consider that definition in any detail because there is no dispute that the activity sought to be restrained by the applicants is industrial action. The issue is whether or not that industrial action and/or corresponding industrial activity is unlawful. In particular, as relevant to this case, an industrial association such as the Union, or its officers or members, cannot lawfully:

(1)    organise or take industrial action against a person, being a form of “adverse action”, unless it is protected industrial action: item 7 in the table to s 342(1), s 346(b) and s 347(f); or

(2)    organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity: s 348.

8    The applicants’ case, both at this interlocutory stage and for the final hearing, is that the dominant, if not sole, purpose for the industrial action that has taken place, is taking place and is intended to continue taking place, is to force the applicants to exclude or at least limit any process of automation or outsourcing of what would otherwise be work performed by the Union’s members. For present purposes, it may be accepted that industrial action taken for that purpose is not about a permitted matter, and thus industrial action which includes that as a purpose would not be protected industrial action. If the applicants’ characterisation of the dominant purpose of the future industrial action still being directed to excluding or limiting any process of automation or outsourcing is correct, the action sits well and truly outside of only being about “permitted matters” in s 409(1)(a).

9    The Union’s case, at least at this interlocutory stage, is that, whatever may be said about the past industrial action, the inference should be drawn that the Union is no longer conducting or proposing to conduct industrial action directed to the issues of either automation or outsourcing. In those circumstances, the Union submits that there is no prima facie case established that the industrial action that is intended to continue will be about anything other than permitted matters, being therefore solely in aid of an ongoing dispute about the terms of the proposed enterprise agreements with each of the applicants.

10    As will be seen, the resolution of this application largely turns on the factual assessment, to a prima facie standard, of whether the industrial action sought to be restrained is, or is not, to be conducted for the purpose of supporting or advancing claims (in relation to the proposed enterprise agreements) that are only about, or are reasonably believed to only be about, “permitted matters”.

Competing evidence and arguments

11    The applicants read and rely upon four affidavits, two each from the Chief Operations Officer, Terminals, of DP World Australia, Mr Andrew Adam, and from Mr Stephen Crilly, a solicitor employed by the applicants’ firm of solicitors. The Union relies upon the affidavit of a solicitor employed by the law firm that acts for it, Mr Phillip Pasfield. All five affidavits were read without objection and without any deponent being required for cross-examination.

12    Mr Adam describes the business of his employer and the applicants, the enterprise bargaining status and negotiation process since early September 2019, and the impact of the industrial action taken thus far. Mr Crilly produces publically available documents that he obtained concerning the MUA Division from or through the MUA website as relevant to the issues raised in this application. Mr Pasfield deposes to a change in stance by the Union in relation to the automation and outsourcing issues, and the outstanding disputed issues in relation to the current enterprise agreement negotiations concerning each of the applicants. I have read and considered all five affidavits in some detail, taking into account the competing submissions of the parties.

13    Mr Adam deposes generally to his involvement in enterprise bargaining for the DP World Australia business. It is convenient to reproduce that evidence verbatim to give content and meaning to what follows, especially as to the structure of the past and proposed enterprise agreements (at [12]-[17] of his first affidavit sworn 22 January 2020):

DP World has four enterprise agreements which it currently applies to its operational stevedoring employees depending on which terminal they work out of, being:

(a)    DP World Sydney Enterprise Agreement 2015;

(b)    DP World Brisbane Enterprise Agreement 2016;

(c)    DP World Fremantle Enterprise Agreement 2015; and

(d)    DP World Melbourne Enterprise Agreement 2016,

(together, the Existing Agreements).

DP World has separate enterprise agreements covering some maintenance employees and shift supervisors, which are not at issue in these proceedings.

The Existing Agreements comprise Part A - which is the same for all terminals, and Part B which is specific to each terminal. Part B typically deals with local issues such as rostering, and prevails over Part A to the extent of any inconsistency.

In or around September 2018, DP World and the Maritime Union of Australia Division of the Respondent in these proceedings (MUA) agreed to bargain for new enterprise agreements.

Bargaining is still ongoing, however:

(a)    from at least 17 October 2019, agreement has been reached on the majority of the terms of Part A (see paragraphs 32 to 35 below which set out details of the in-principle agreement reached on this date which remained the basis for ongoing drafting; and

(b)     in relation to Part B, each respective terminal has broadly reached agreement in relation to Part B, I expect that agreement would be reached in one further meeting. In my experience, Part B negotiations do not tend to come to an end until Part A has been agreed. The Part B negotiations at all Terminals have reached agreement on the substantive claims between the parties and are waiting on the finalisation of Part A negotiations. There are no substantive claims in Part B which would warrant the delay in finalising the enterprise agreement.

My involvement in bargaining has been as lead negotiator on behalf of DP World from March 2019. I have attended all Part A negotiations and a large number of Part B negotiations in Fremantle, Sydney and Melbourne (my involvement has not been required in Brisbane). I have been involved in drafting of the new agreements and have been the main point of contact for DP World in dealing with the MUA.

14    The key parts of the evidence of Mr Adam, including those upon which particular reliance was placed are as follows (with some additions for context):

(1)    From 4 to 6 September 2019, Mr Adam attended all-day negotiation meetings in relation to Part A attended by various representatives of DP World Australia, the applicants and the Union.

(2)    In the course of those meetings the MUA raised a new claim in relation to outsourcing, proposing the deletion of a clause which dealt with that topic, and instead placing it in a deed, a proposition that Mr Adam rejected out of hand.

(3)    By 5 September 2019, Mr Adam considered that agreement had more or less been reached on the majority of issues concerning the enterprise agreements. DP World Australia prepared and provided to a Union representative a written proposal to settle all outstanding claims between the parties.

(4)    On 11 September 2019, Mr Adam received a letter from the MUA responding to the proposal. He was disappointed because it fell significantly short of a settlement. He had expected that what had been offered would be accepted because it contained a significant concession. He did not respond to the letter in writing. The parties scheduled further meetings on 8 and 9 October 2019, which ultimately did not take place at that time.

(5)    Mr Adam subsequently received draft deeds from the Union on 2 October 2019 (October deed), 1 November 2019 (November deed) and 20 December 2019 (December deed). The applicants submit, and I accept, that each successive draft deed replaced its predecessor. Mr Adam did not consider the October deed (and thus I infer the subsequent deeds) at great length because DP World Australia had made its position clear that it did not agree to a deed. This position was confirmed at a meeting with Mr Warren Smith, Assistant National Secretary of the MUA, at a coffee shop in Sydney on 9 October 2019.

(6)    Part A negotiations continued on 16 and 17 October 2019. In the meeting on 17 October 2019, Mr Adam considered that all outstanding issues concerning the enterprise agreements not agreed at prior meetings had been resolved, allowing for an in-principle agreement to be reached with no matters outstanding that could not be resolved in drafting. That afternoon, Mr Adam received an email from the MUA attaching document entitled “IN-PRINCIPLE AGREEMENT AT DP WORLD SUBJECT TO ONGOING DRAFTING AND AGREEMENT” (in-principle agreement document). Mr Adam understood that the purpose of the in-principle agreement document was to set out the effect of the agreement that had been reached at the meeting on 17 October 2019, and that the precise way in which those terms would be expressed would be subject to further drafting meetings. This was consistent with what had happened in the past.

(7)    On 22 October 2019, Mr Adam sent a document to the MUA setting out DP World Australia’s response to the MUA in-principle agreement document. He states that the in-principle agreement document generally accurately represented the agreement reached, but the document he sent highlighted a few issues to be addressed in drafting.

(8)    On 24 October 2019, Mr Adam received a telephone call from Mr Christy Cain, Western Australia Branch Secretary and National President of the MUA. The conversation included words to the following effect:

Mr Cain:     “The reason I’m calling is in relation to the Enterprise Agreement negotiations. The MUA is currently having its National Council and we have been talking about automation. We have taken a resolution to insist that DP World must agree to no automation for the term of the enterprise agreement.”

Mr Adam:    “Chris, that’s inconsistent with the in-principle agreement we reached on 17 October.”

Mr Cain:    “Yes, I know it’s inconsistent.”

Mr Adam:    “We have already agreed to extensive consultation provisions. We cannot agree not to automate.”

Mr Cain:     “We have had legal advice which says that clause does not prevent automation.”

Mr Adam:    “That’s right, that was never the intention. We were clear about that. We agreed.”

Mr Cain:    “I know, but we want you to change that agreement.”

Mr Adam:    “This means you are reneging on our agreement.”

Mr Cain:    “You already said that you won’t be automating so what’s the problem?”

Mr Adam:     “That is incorrect. We have given no assurances in relation to automation during the life of the agreement.”

Mr Cain:     “That’s not what Adrian Evans said.”

Mr Adam:    “Our position has been clear and we have restated it a number of times. We have no automation plans presently, but that does not preclude us from automating in [sic] some point in the future.”

Mr Cain:     “We want you to exclude automation for the duration of the agreement, or enter into an agreement for a shorter period, something like two years” [sic]

Mr Adam:     “This is completely inconsistent with the in-principle agreement. We have no agreement.”

Mr Cain:    “So be it.”

(9)    Mr Adam made a file note of that conversation about two hours later, and produces that file note. Later that afternoon, he sent a letter by email to Mr Smith, confirming what had been said in the conversation with Mr Cain. The text of that letter is as follows:

I am writing further to Christy Cain’s telephone call to me this morning noting that the in principle [sic] agreement reached on 17 October 2019, and confirmed by you in writing on 18 October 2019, and which we positively responded to on 22 October 2019 has now been unilaterally withdrawn by the CFMMEU.

The advice is extremely disappointing on a number of levels, firstly that he contacted me and not you, I have attempted to contact you and you have not returned my call at the time of my writing this letter. Secondly that after thirteen months of negotiating for a replacement enterprise agreement we are no closer to a vote, which my employees and your members are expecting before Christmas. Thirdly and most crucially you are jeopardising employee’s pay rise with retrospectivity that was agreed.

The reason given for breaking the agreement was that the CFMMEU are demanding to have a ‘guarantee’ in relation to no automation for the duration of the Enterprise Agreement which as we have discussed a number of times is not a commitment we can, nor will give.

It is open for DP World to conclude that the CFMMEU is failing to meet its good faith bargaining obligations and we reserve our rights in this regard.

All Part B meetings and the intended Part A meetings for the next month are cancelled until further notice and local ERC representatives have been advised.

(10)    Mr Smith replied by email the same day, 24 October 2019, as follows:

I wasn’t privy to Chris’s call so make no response on those matters.

It is correct the MUA National Council has determined a national position on automation and outsourcing of which we will need to discuss.

I have been in National Council all day and have just got out and will be travelling for the next few hours.

I would point out that the in-principle agreement seems to have been rejected by DPW in your response to the union 22 October.

We note no less than ten issues we thought were agreed are not agreed including the peaks and troughs clause, automation payment, IP expiry among other important issues to us.

I will call you tomorrow to discuss a possible path forward.

(11)    On 30 October 2019, Mr Adam sent an email to DP World Australia’s employees about the MUA’s withdrawal of support for the MUA’s 17 October 2019 in-principle agreement document as follows:

Enterprise Agreement update

It is extremely disappointing to inform all employees that on Thursday 24 October 2019, I was advised by a senior CFMMEU official that the CFMMEU had resolved at their meeting of National Council to withdraw support for the “In Principle Agreement” (“IPA”) reached with your Employee Representatives and DP World Management on Thursday 17 October 2019.

The IPA resolved all issues between the parties including:

•    Income Protection;

•    Outsourcing;

•    Automation;

•    Peaks and troughs;

•    Public holiday payment for VSE;

•    Arrangements for cashing out excess sick leave;

•    Equalisation of clause 11 rates nationally;

•    Wage increase; and

•    “back pay”.

The new Agreements would have been ready to vote on before Christmas.

Given the number of items discussed during the last 13 months, it was agreed to exchange documentation to reflect the agreed position on 17 October 2019. The parties also scheduled meetings to finalise the precise terms and wording of new or varied clauses. The process is consistent with previous agreements and is the forum to resolve any inevitable clarification of drafting issues.

The CFMMEU has reneged on the IPA reached on 17 October and we see no benefit in resuming Part A drafting or scheduling Part B discussions whilst the CFMMEU oppose the IPA reached with your employee representatives.

If there are any questions or clarifications to this update, please contact local management team or employee representatives.

(12)    At some time after 30 October 2019, but before 6 November 2019 (due to a future meeting advised to take place on that date), the MUA sent a letter to its members, which effectively responded to Mr Adam’s 30 October 2019 email. That letter included the following:

I write to you to clarify the position around the DP World Enterprise Agreement negotiations. DP World is saying the MUA has walked away from an in-principle agreement with the company and that we are making new claims particularly in respect of automation and outsourcing.

On October 17 DP World and the MUA agreed to what was an in-principle position arising out of Part A EBA negotiations. Later that day the MUA wrote to DP World outlining what the Part A committee viewed as the in-principle agreement. That document is attached for your information.

On October 22 DP World responded to the MUA’s letter with a position that did not reflect the in-principle agreement. That company letter is also attached to demonstrate the differences and the fact that the parties have different positions on a range of issues that does not reflect an in-principle agreement.

The MUA National Council met on October 22-24. National Council had a responsibility to develop a national position around automation. Officials dealing with all stevedoring areas put their knowledge and information together to adopt what was the best position to protect our industry and jobs into the future across all companies. The new national position was at odds with the previously sought position put to DP World that in the end the company rejected.

Automation

…

What we now need to get from DP World is a simple non-cost clause in the agreement that says the company will not automate for the life of the agreement.

…

Outsourcing

…

While this seems like a positive step forward our strong legal advice is that clause prohibiting outsourcing in agreements is unenforceable. An unenforceable clause is not a fix for outsourcing and the last four years has seen DP World consistently breach strong, clear and enforceable clauses. Why would we give them an unenforceable outsourcing position when we can’t trust what they do with clauses that are rock solid. [sic]

…

Due to these serious constraints in the Fair Work Act our advice around the most enforceable means of preventing outsourcing is via a deed that strictly forbids the company selling off our jobs. This is enforceable but would have to sit outside the EBA.

Other Issues

Some of the other matters not reflecting in-principle agreement are:

•    Retrospectivity excludes overtime earnings.

•    Peaks and Troughs clause – MUA position not agreed.

•    Part A review outside EBA.

•    Removed CFMMEU conferences in Trade Union Training.

•    Validity of warning letters after 12 months no agreed.

•    IP for the life of the agreement presenting the same problem we faced this time around.

•    Non-inclusion of 2-hour union inductions

•    VSE scratching linking back to site caps in Part B

…

(13)    On 5 November 2019, Mr Adam met with Mr Paddy Crumlin (National Secretary of the MUA), Mr Cain, and Mr Will Tracy (Deputy National Secretary of the MUA). They were joined by Mr Glen Hilton, the Chief Executive Officer of DP World Australia. The conversation that ensued included words to the following effect:

Mr Cain:    “DP World walked away from the in principle agreement when it raised other issues on the 22nd.”

Mr Adam:    “No. The residual issues are not insurmountable, they are not deal breakers and they can be resolved during the drafting process.”

Mr Cain:    “How do you propose we do that?”

Mr Adam:    “If you send me a summary of the residual issues as you see them, we can deal with them through drafting.”

Mr Cain:    “I will do that.”

(14)    The conversation at that meeting then turned to the impasse in relation to automation and outsourcing and the MUA’s request for a deed. Mr Adam recalls a discussion to the following effect:

Mr Adam:     “I have been the only common denominator in all the negotiations since March. DP World has made a number of concessions to address concerns around automation and outsourcing. Our position on outsourcing has been consistent the whole way through negotiations whenever these matters have been raised. We have rejected the deeds you have provided.”

Mr Cain:    “We have made a resolution. We want a deed.”

Mr Adam:    “No. The deed that you sent me on 1 November 2019 is unacceptable and has been consistently unacceptable for the term of the negotiations. We have never agreed to a deed. We have no plans to automate, but we are prepared to strengthen the consultation and displacement provisions. We are not prepared to enter into an arrangement whereby we need agreement from the MUA in order to automate.”

Mr Cain:    “We need an assurance that DP World won’t do that.”

Mr Adam:    “We are not removing clause 32. Our position is that we will strengthen clause 32 to ease some of the concerns about outsourcing, particularly in relation to maintenance. We are not accepting a deed that constructs a position where DP World needs to get agreement from the MUA in order to automate. You must see that that cannot be acceptable.”

Mr Cain:    “We want a provision in the deed where DP World is excluded from automating during the life of the agreement.”

Mr Adam:    “In order to resolve the impasse, we would consider agreeing not to automate prior to specified date [sic] in time. But we are not prepared to agree to a term that talks about the life of the agreement where it could continue to operate beyond the nominal expiry date.”

(15)    Various other events then took place during the balance of 2019, which, although generally important, do not warrant detailed reference or reproduction in these reasons. These included the MUA issuing of notices of protected industrial action and the provision of the December deed.

(16)    On 8 January 2020, Mr Adam met with Mr Cain, Mr Smith and Ms Tory Kakoschke (a company Employment and Industrial Relations Advisor). Mr Adam did not take notes, but Ms Kakoschke did. Mr Adam opened the meeting by indicating that Part A drafting was substantially completed with only a few minor issues to resolve but that DP World Australia would not accept the deed on the terms presented by the MUA. Mr Smith agreed with him and said words to the effect that “Part A drafting is about 98% completed”. Mr Adam recalls a discussion about the December deed to the following effect:

Mr Adam:    “The matters outstanding between us to finalise Part A are the positions that you’ve adopted on outsourcing and automation in the deed that you sent me before Christmas. Your positions in relation to these issues are inconsistent with our agreement on 5 November, and are positions which DP World has consistently rejected over the past four or five months.”

Mr Cain:    “That is the position of the MUA. There will be no automation for the term of the agreement and no more outsourcing of new work and some existing work. We are prepared to take further industrial action around the country in support of these two claims.”

Mr Adam:    “Our agreed position on 5 November 2019 was that DP World could contemplate a deed on automation that had a drop dead date and that outsourcing would be done pursuant to clause 32. We cannot accept the deed you are proposing.”

(17)    Following a lengthy discussion about the impracticality of dealing with maintenance outsourcing at a national level, Mr Adam also recalls a conversation to the following effect:

Mr Smith:    “We are concerned about the outsourcing of stevedoring roles not just maintenance roles.”

Mr Adam:    “Okay, we can go away and look at what the award covers in relation to stevedoring roles and revert to you on that, but practically there are difficulties with a national approach as different tasks are outsourced in different terminals.”

Mr Smith:    “Your greatest concern is your hysteria around the words “agreement with the MUA to outsource”.”

Mr Adam:    “We have experience where some of the MUA branch officials will not accept the outsourcing of any tasks, for example rope changes in Port Botany – so yes, those words are totally unacceptable to us.”

(18)    Mr Adam explained to the MUA officers present that a “drop dead date” left the door open for the MUA to prosecute further claims in negotiations for replacement agreements in the future. He perceived a preparedness on the part of the MUA to contemplate the possibility of a “drop dead date” on automation following that explanation. There was also a conversation about the progress of the Part B component of the four enterprise agreements being negotiated with the four applicants. There was agreement that the parties were close to finalising agreement in Brisbane, Melbourne, Sydney and Fremantle. Mr Adam said words to the effect “it seems to me that the Part Bs are almost complete”, with no one objecting to that view.

(19)    Mr Adam was told by Mr Cain that there was to be a national phone hook-up the next day, and that Mr Cain would call him afterwards to give him an update. He did not receive that call, but the next day, the MUA issued notices of protected industrial action for the terminals in Brisbane, Sydney and Melbourne, which are in evidence. Also in evidence are two further such notices that were issued by the MUA with respect to the Fremantle terminal on 13 January 2020.

(20)    Mr Adam detailed in general terms the impact of industrial action on DP World Australia’s operations as follows (at [90] to [102] of his first affidavit sworn 22 January 2020):

The industry in which DP World operates is a small and competitive market. DP World is one of only two corporate groups that operates in more than two Australian ports, the other being Patrick Terminals. Together, DP World and Patrick handle the significant majority of containerised freight moving through Australian ports.

I have reviewed the ACCC report entitled Container Stevedoring monitoring Report - October 2019 dated October 2019 (ACCC Report). An extract of the part of the report which sets out the statistics I have relied upon in the paragraphs below is annexed to this affidavit and marked “ALA-41”.

The ACCC Report indicates that in the 2018-19 financial year:

(a)    DP World handled 2 million containers over its four Australian terminals; and

(b)    DP World handled 39.1% of containers nationally.

DP World’s operations team maintains and analyses data in relation to the work carried out at each terminal. I have been provided with data by the General Manager Customer Centre, National Planning Centre, which says that DP World’s four container terminals handle on average 27 vessel calls per week (this may involve an individual vessel attending a number of times while circumnavigating the coast). On an average of 17,500 containers are loaded and an average of 17,580 containers are discharged (excluding transhipments) per week.

Any disruption to a single terminal can have a significant impact to the supply chain. Annexed to this affidavit and marked “ALA-42” is data in relation to nominal trade values which I have extracted from the Bureau of Infrastructure, Transport and Regional Economics report entitled Australian Sea Freight 2016-17 dated October 2019. This data reflects the value of the different kinds of goods which DP World (and other stevedores) receives at its terminals.

In addition to obvious cost implications, there are impacts in terms of [following] effects – such as the need for a steady flow of empty containers for packing, or the impacts of delays to other vessels also using the port. I set out more detailed examples of the flow on effects in paragraph 99 below.

In my experience, the vast majority of DP World’s stevedoring employees are members of the MUA. This means that where the MUA organises protected industrial action, the relevant action has generally been engaged in by all relevant DP World employees (including crane drivers, lashers, team leaders, clerks and drivers of vehicles), other than some limited exemptions which have been historically agreed with the MUA (being cargo care employees who deal with reefers (refrigerated containers), and bus drivers who provide transport for crew). In these circumstances, the impact of industrial action on DP World’s operations is significant.

As set out in the notices annexed to my affidavit, during bargaining in 2019 and 2020, there has been a significant amount of protected industrial action taken.

There are flow on effects to all industrial action taken. At each port where a container ship calls, a vessel will need to be discharged and/or loaded with containers (usually both). The relevant shipping line will contract with DP World and negotiate a level of container exchange (essentially, the total of containers discharged and loaded) for the call. It is important that ships be stevedored and able to sail again within the planned window wherever possible, because delays in port contribute to delays in their subsequent ports of call.

Where work is delayed, including as a result of industrial action, this means that:

(a)    DP World needs to operate additional cranes, and as a result roster more stevedoring teams to perform the work required to meet customer requirements;

(b)    DP World faces financial penalties due to delays and extended port stays. Where a vessel misses the time frame it has been allocated for containers to be loaded and unloaded, this has flow on effects for the rest of the journey and can also impact other vessels arriving at port;

(c)    alterations must be made to the schedule of services, which may mean that certain stops are missed. The issue of delays in port becomes acute where delays in Australia flow on further and require that a service omit a port of call in another next region, which may mean that certain deliveries are not made;

(d)    vessels may need to be sped up in order to meet subsequent windows. Though this can minimise delays it is not always possible, and results in increased fuel use and cost;

(e)    DP World has to answer to its customers about vessels not completing planned exchanges and sailing without the full exchange of containers being completed. This may also result in contractual financial penalties for DP World;

(f)    additional costs will be incurred where containers are held back and must be stored either on site, or offsite (for example if they are refrigerated and must be powered while awaiting export), which include storage costs and shipping line detention charges for not returning containers; and

(g)    customers do not receive their goods on time, which has implications for their businesses and impacts on their relationship with DP World. For example, if fresh produce being [sic] imported, its shelf life may mean that delays render it useless by the time it reaches its destination. Given that the majority of shipping containers carried by DP World are either 20 or 40 feet long, losses associated with even on shipping container can be very substantial.

When industrial action, and the associated flow on effects occur it can mean that DP World loses its ability to secure further commercial contracts, or that existing customers direct DP World to subcontract the work to competitors.

In my role I act as the central conduit for the business. When industrial action occurs or is notified, the operation of all terminal services is coordinated centrally through me and General Manager Operations, General Manager National Operations and Head of Commercial. It is my role to communicate with stakeholders about what the likely impact of that action is going to be and what mechanisms/adjustments are required for us to mitigate the impact on the business and our stakeholders.

Depending on the length of the delay caused by industrial action, DP World may need to subcontract some work to competitors in order to meet its commercial contracts. Invariable the cost paid to another stevedoring operator has the result that DP World forgoes most or all of the revenue from the work. Subcontracting is also not always possible, as competitors do not always have the capacity to fulfil this work (especially on the short notice provided when protected industrial action is taken), and also may not be operationally able to produce the same service which DP World would.

15    The applicants submit that the evidence discloses a very strong prima facie case and that the balance of convenience favours the granting of the injunctive relief sought.

16    The Union relies upon the following two annexures to Mr Pasfield’s affidavit:

(1)    An email from Mr Smith, also bearing Mr Cain’s name, to Mr Adam sent on 29 January 2020 at 8.42 am, the text of which was as follows:

We refer to our emails to you dated 2 October 2019 and 1 November 2019 which enclosed draft deeds.

We hereby inform you, on behalf of the CFMMEU, that the CFMMEU withdraws those draft deeds from your consideration and no longer seeks any such deeds.

(2)    A further email from Mr Smith sent on 29 January 2020 at 12.45 pm, which commences “Further to our email today, the EBA Bargaining Committee is ready to meet to discuss the current outstanding claims of the CFMMEU as set out below”. The email then lists MUA Part B claims not agreed to in Melbourne, MUA and DP World Australia Part B claims not agreed to in Brisbane, Part B issues in Fremantle and Sydney and National Part A issues (including a new issue as to no compulsory or voluntary redundancies).

17    The Union submits that while it accepts that there would be difficulty in persuading the Court that there was not a prima facie case in relation to past conduct, the same could not be said about future conduct by reason of the two emails produced by Mr Pasfield, and relying upon what was said on this distinction by North J in Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [1998] FCA 321; 81 IR 15, especially at pp 17, 20 and 23 to 26. The Union asserts that the two emails support an inference that, as the deeds are no longer pressed, the industrial action that is to continue is not about automation or outsourcing, but is now only about permitted matters to do with the proposed enterprise agreements and matters pertaining to the employment relationship as contemplated by s 172(1)(a).

18    In reply, the applicants point out that the first email produced by Mr Pasfield does not refer to the December deed, but only to the prior and superseded deeds, and does not in any event afford a sufficient basis to conclude that the contrary position reached by the National Executive has been abandoned, especially when regard is had to the MUA publication “RANK&FILE VOICE” of September 2019 produced by Mr Crilly in his second affidavit affirmed 28 January 2020, at page 12 (page 4 of the publication), which referred to “a hard-fought campaign, with members prepared to take as much action as needed to land a fair deal”. I did not regard this last reference as helping much either way.

19    In light of the detailed evidence from Mr Adam summarised above, I am unable to accept that the emails produced by Mr Pasfield provide any real basis, let alone any sufficient basis, for concluding that the industrial action taken in the immediate past which, taken at a prima facie level, was apparently directed substantially and even dominantly, to the issues of automation and outsourcing has taken the dramatic change that is contended by the Union. I am not satisfied that the industrial action proposed to continue has anything substantial to do with the Part A and Part B issues outlined in the second email produced by Mr Pasfield, although obviously enough that industrial action will provide some additional leverage in the continuing negotiation process on those matters. I conclude that the threshold in s 409(1)(a) has been shown by the applicants to have been reasonably comfortably exceeded, namely that the proposed industrial action is not, prima facie, substantially, let alone only, about permitted matters. I therefore accept the applicants’ submission that they have established a strong prima facie case.

20    While it is obviously possible that a different conclusion might well be reached at the end of a contested final hearing, no other reasonable conclusion is open on the available evidence, taken at the prima facie level. That being so, by a comfortable margin for present purposes I have concluded that the contemplated industrial action is not likely to be protected industrial action in the absence of any compelling evidence to support a contrary conclusion. In those circumstances, the evidence of Mr Adam as to the harm the applicants will suffer if that is allowed to continue means that the balance of convenience supports granting the injunctive relief sought, at least as to the injunction order itself.

21    Noting that the applicants have, through their counsel, given the usual undertaking as to damages, I will make the injunctive order sought. In doing so, I reject the alternative submission by the Union that such relief should be confined to industrial action that is not protected industrial action. My reason for that rejection is my conclusion above that that the industrial action that will continue in the absence of an injunction is, prima facie, dominantly for non-permitted purposes. The concerns identified by Snaden J in DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 1331 at [68] have little application in light of the conclusions I have reached, and in those circumstances the prejudice to the Union and its members in not having a more confined injunction over the next six weeks is largely illusory.

Orders

22    Upon the applicants by their counsel having given to the Court the usual undertaking as to damages, I order that:

(1)    The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, by its officers, employees, delegates or agents be restrained from organising or threatening to organise any industrial action by stevedoring employees of the applicants until 4.00 pm on Friday, 13 March 2020, unless this order is expressly discharged by this Court before then.

(2)    The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, take all reasonable steps to inform its members who are stevedoring employees of the applicants of order 1 above by no later than midnight on 31 January 2020. This may be done by way of a text message to each such member.

(3)    Liberty to apply on 24 hours’ notice.

Associate:

Dated:    7 February 2020

SCHEDULE OF PARTIES