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 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. 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 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. 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 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