DP World vs. MUA EBA Negotiations in 2023
As a keen observer of the ongoing high-profile Enterprise Bargaining Agreement (EBA) negotiations between DP World and the MUA, I’m closely following how the parties navigate the new Industrial Relations (IR) Laws introduced in mid-2023 through the Secure Jobs Better Pay Amendments Act.
This matter has garnered significant media attention, particularly after Workplace Relations Minister Tony Burke decided not to utilise his ministerial powers to halt or suspend the ongoing industrial action by DP World employees. Given the intricacies of the laws and their application, I aim to provide a summary of the situation using this dispute as a real-world example. Here are my observations, and I welcome any corrections:
- All of DP World’s Enterprise Bargaining Agreements (EBAs) across major Australian ports expired simultaneously on September 1, 2023. Understanding the historical context and implications of this is crucial for IR experts.
- Legally, protected industrial action (PIA) can only be taken after the nominal expiry date of these EBAs, which is after September 1, 2023.
- The new laws require the Fair Work Commission (FWC) to facilitate compulsory conciliation/mediation between the parties before issuing a Protection Action Ballot Order (PABO). This process likely unfolded after September 1, 2023.
- Recently, there have been calls for Tony Burke to intervene and employ his ministerial powers to suspend or terminate the protected industrial action.
- Ministerial powers can be activated if the minister believes the action poses a threat to life, personal safety, health, welfare, or could cause significant damage to the Australian economy.
- As of now, the minister has chosen not to exercise these powers, leading to debates across the political spectrum regarding the merits of DP World’s application.
- If an agreement remains elusive, the next step involves the potential Intractable Bargaining Declaration by one of the bargaining representatives. This empowers the FWC to intervene, setting the terms and conditions of the enterprise agreement, which then becomes legally binding.
- Timing poses a significant challenge in this scenario. The FWC can only consider such an application after 9 months of bargaining or the nominal expiry date, whichever comes later. Additionally, other requirements under s.240 of the FW Act must be met, including a prior application for FWC assistance (in which arbitration can only happen with unanimous consent by the parties).
- From a timing perspective, unless the parties reach an independent agreement, this step can only be initiated from June 1 of the current year (2024).
It will be interesting to see how this unfolds..