Construction, Forestry and Maritime Employees Union v DP World Melbourne Ltd... [2025] FWC 1881 | Case summary

Construction, Forestry and Maritime Employees Union v DP World Melbourne Ltd... [2025] FWC 1881 | Case summary | Zoe

[11]

[7] The dispute arises because DP World considers it is not obliged to fill several vacant FSE positions that have arisen at its West Swanson Terminal located at West Melbourne in Victoria (the Terminal). DP World claims that at the time these vacancies arose there were circumstances other than "normal", such that they were not obliged to fill the vacancies and that this remains so. The change claimed to have arisen results from a decision to implement Automated Horizontal Transport (AHT) at the Terminal. It is said that the introduction of AHT will result in removal of a significant human element involved in discharging and loading of containers onto and from container ships at the Terminal.
[8] It does not appear to me there is any great controversy over the background to the matters the Commission is required to arbitrate to resolve the dispute. However, parties were not able to agree on specific questions for arbitration.
[9] The questions posed by the MUA were:
1. Q1. Is the requirement to fill FSE vacancies in clause 39.6 of the EA contingent on "normal circumstances" and/or "in all normal circumstances"?
2. Q2.a. Does consultation by the Respondent with the Applicant in relation to a proposed project involving automated horizontal transport constitute "normal circumstances" and/or "in all normal circumstances" for the purposes of clause 39.6 of the EA?
3. Q2.b. Does a "definite decision to make a change to the mode of operation (Board approval)" in accordance with clause 1(a) of Appendix 4 of the EA constitute "normal circumstances" and/or "in all normal circumstances" for the purposes of clause 39.6 of the EA?
4. Q3. Does clause 39.6 of the EA require DPW to fill the FSE vacancies left by Mr Adam Draganovic, Mr Nathan Warszawski, and Mr Wayne Jacobs (subject to the determination or settlement of his unfair dismissal proceedings)?
5. Q4. Does clause 39.6 of the EA require DPW to fill the FSE vacancies left by Mr Adam Draganovic, Mr Nathan Warszawski, and Mr Wayne Jacobs (subject to the determination or settlement of his unfair dismissal proceedings) within a reasonable time?
[10] The questions posed by DP World were:
1. Q1. Have each of the FSE Roles become vacant? If so, when did they become vacant?
2. Q2. Were the prevailing circumstances at the time the FSE Roles became vacant 'normal circumstances', or 'in all normal circumstance[s]' for the purpose of clause 39.6 of the DP World Melbourne Enterprise Agreement (EA)?
3. Q3. Did clause 39.6 of the EA require DPW to advertise for and fill any FSE Roles within a reasonable time, or did the prevailing circumstances mean that DPW did not have an obligation to advertise for and fill those FSE vacancies within a reasonable time?
4. Q4. Did the circumstances change after any existing FSE Roles became vacant, including on the basis that there was a definite decision to the mode of operation?
5. Q5. If the circumstances did change after any existing FSE Roles became vacant, did clause 39.6 of the EA require DPW to advertise for and fill any FSE vacancies within a reasonable time?
[11] Shortly before the hearing, in a last effort to arrive at some consensus, I suggested to parties that it appeared necessary that the following questions be answered to arbitrate the dispute:
1. When the FSE position held by Mr Draganovic became vacant, was the Respondent obliged to fill that vacancy including by advertising the vacancy no later than 21 days after Mr Daganovic's date of departure?
2. When the FSE position held by Mr Jacobs became vacant, was the Respondent obliged to fill that vacancy including by advertising the vacancy no later than 21 days after Mr Jacobs' date of departure?
3. When Mr Warszewski notified the Respondent of his resignation date, was it obliged to fill that position as soon as it received the notice, including by advertising the vacancy?
[12] At the commencement of the hearing, both parties agreed that the questions formulated by the Commission were "of assistance in that they neatly state the ultimate issue"[3], and "hits at the nub of what the dispute is about"[4].

[14]

[14] Mr McMurray is the Operations Manager for DP World at the Terminal. On 26 November 2024 Mr McMurray took steps to arrange a meeting to occur involving the site health and safety representatives and representatives from the MUA. As Mr McMurray advised some of the intended participants, including Mr Moon, who is the Assistant Secretary of the Victorian Branch of the Union, the meeting was to be about a workplace health and safety consultation regarding a proposed Automated Horizontal Transport project the Terminal.
[15] In the meeting that was then held on 28 November 2024, DP World provided a presentation about the AHT project. It was described as "proposed" and provided a broad overview of what was in contemplation[5].
[16] The particular focus of this dispute is a function which occurs at the Terminal involving the discharging and loading of container ships. Presently, while this process involves what appears to be sophisticated machinery, it is to a large degree effected by manual operators. AHT would remove manual operation from some parts of the process by means of unmanned transports, using those transports to move shipping containers off ships and to storage areas where they can be loaded on to trucks for transport.
[17] The Agreement contains obligations that DP World consult with employees and the Union in regard to changes in production, program, organisation or technology that are likely to have a significant effect on employees[6]. It also contains a separate obligation that DP World communicate and consult with employees and health and safety representatives about matters which affect or are likely to affect the health and safety of employees[7]. The meeting conducted by DP World on 28 November 2024 was not the commencement of a consultation process about major change. Rather, this meeting commenced a workplace health and safety process consistent with s 47 of the Occupational Health and Safety Act 2004 (Vic) and cl 33 of the Agreement.
[18] On 29 November 2024 a message was distributed to all employees at the Terminal from Mr Brett Lynch, the Vice President - Operations - Ports & Terminals for DP World, concerning the commencement of the safety consultation about the proposed AHT project. It is evident from this message, and from the presentation provided to the health and safety representatives in the meeting held on 28 November 2024, that there had been no definite decision made at that time to go ahead with the project. Several different "possible" transport options were floated. The message did flag the possibility of "some redundancies" if the project was to go ahead[8].
[19] On 12 December 2024 Mr McMurray sent Mr Moon a letter in which he outlined a proposed process for consultation pursuant to the Agreement, should there be a definite decision to go ahead with the AHT project. The letter again confirmed DP World had not yet made a definite decision regarding whether the project would proceed or not. The letter remarked that "it is possible there may be some redundancies"[9].
[20] Between 12 December 2024 and the early part of 2025 several discussions occurred between DP World representatives and MUA representatives about the proposed AHT project, including at meetings of the Employee Representative Committee. There were also further meetings involving the health and safety representatives. On 27 February 2025 a meeting was held involving various representatives of the parties at the MUA's national office in Sydney. It remained the case that at this time, the DP World representatives said that it had not made a definite decision to go ahead with the AHT project[10].
[21] On 15 April 2025 DP World advised the MUA in writing that it had made a definite decision to implement AHT at the Terminal[11]. It's letter said that it intended to purchase "Intelligent Guided Vehicles (IGV's) to replace straddles" and that it anticipated that (a), subject to consultation, the decision could result in up to 30 operational roles being made redundant, and (b) IGV's would commence operation on 6 July 2026 (described as the scheduled go-live" date). It said further that:

[18]

[30] While the evidence of both parties was led unchallenged, slight differences existing in two areas I consider worth noting.
[31] First, it appears to be asserted by MUA that, as a matter of fact, the contemplation of or introduction of changes in work process, including arising from some kind of automation, is not out of the usual course of events. In his evidence Mr Moon said the "introduction of new technology and automation by global stevedoring operators is by no means a new or contemporary matter ... most container stevedoring operations in the country contain (to varying degrees of sophistication) automated process"[20] He then went on to set out various examples of such at other Terminals around the world, including in Australia[21]. Conversely, it is said that the work process in question, particularly the use of "staddle carriers" in the loading and unloading of ships, has been effectively the same for over 30 years[22]. It is said by DP World that in this regard, none of Mr Moon's evidence "talks about DP Melbourne"[23]. It says further that the proposed change would "indelibly change the mode of operation" at the Terminal, that redundancies will arise and that this is not a normal occurrence at the Terminal[24].
[32] Secondly, DP World asserts that it is inevitably the case that redundancies will arise as a result of the introduction of AHT[25]. This submission is based largely on Mr McMurray's evidence, who said that the effect of AHT will include, among other things, "the redundancy of up to 30 operational roles, subject to consultation and exploring measures to mitigate and avert the impacts associated with this, including potentially through voluntary redundancies and a reduction in VSE hours"[26]. He said that at this stage DP World cannot state the number of redundancies with any certainty[27]. In various communications which were sent by DP World to its health and safety representatives, to the MUA and to its employees it was indicated, reasonably consistently from the moment consultation began, that redundancies were likely to occur.
[33] Mr Moon, in his reply evidence, took issue with the inevitability that FSE positions will be reduced by way of redundancy. He said that, "subject to a reorganisation of the rostering arrangements, there could in fact be a requirement for DP World to engage more FSE's than they currently do" because Appendix 4 of the agreement provides that in circumstances where automation is introduced, one measure that can be taken is a reduction in hours of work to 32 per week, for the purposes of avoiding redundancy[28]. This was a reference to item 1(d) of Appendix 4 of the Agreement which provides that, in the event significant change is introduced to the mode of operation at the Terminal, the "parties" will in the first instance seek to reach agreement regarding roles, rosters, labour arrangements and requirements, and agree that the hours of work shall be 32 hours per week unless otherwise agreed by the parties[29].
[34] It is not difficult to resolve this slight factual divergence. It is not in contest that AHT will remove a human element, to some degree, from the process of loading and unloading container ships at the Terminal. From the moment the change appears to have been in contemplation, the possibility of redundancies was referred to by DP World in its various communications. But, to use the colloquialism, there is still yet some water to pass under the bridge. And until that happens, it remains the position that redundancies are likely, but not certain, and if they occur their number is not yet known.
[35] Relatedly, it is also said by MUA that the filling of the vacancies might not result in "employing new people"[30]. This is because "the work force structure is that people move from "supplementary", to VSE to FSE"[31], noting that clause 3.8 of the Agreement says the "career path is Supplementary to VSE to FSE subject to meeting earnings and performance triggers"[32]. It is on this basis that the MUA says there are three people - presently engaged at the Terminal as a VSE - who are "being denied the benefit of a permanent roster" by reason of the vacancies not having been filled. This is because in its submission, taking into account the terms of the agreement, if the vacancies were filled it would involve moving three of those existing VSE's into FSE roles.

[27]

[43] In this regard, the MUA submits that circumstances are "normal" even though there are times when the business improves and there is a business downturn. It argues circumstances are also normal when there are proposals for change - said to be "an ordinary part of any business" - because "a proposed change might be adopted, or it might be rejected, or it might be adopted in a substantially different form to that which it was originally proposed"[38].
[44] This led to a third, conclusionary point, that, when the relevant events occurred - on 30 September 2024, 3 December 2024 and 19 December 2024 circumstances were normal and thus, the obligation contained within the clause denoted by the words "the Company shall" were triggered. In the case of Mr Warszewski, who resigned on 3 December 2024, DP World was at that time obliged to advertise his position immediately (having received the notice of resignation). And in the case of Mr Draganovic and Mr Jacobs, whose employment was terminated on 30 September 2024 and 19 December 2024 respectively, DP World was obliged to advertise their roles no later than 21 days after these dates.
[45] The point was emphasised with respect to Mr Draganovic, whose role became vacant (as contended by the MUA) on 30 September 2024, even before the consultation around the proposed form of the change commenced[39].
[46] The MUA's submission acknowledged the difference between circumstances when a change is proposed, and the circumstances once a definite decision has been taken to implement a change[40]. It argued that this situation is more nuanced, but that even after a definite decision to implement a significant change, circumstances can remain "normal", depending on the nature of the change[41]. In this matter, the MUA argues that the circumstances are the same after the definite decision is made as they were before. Prior to the definite decision being made, DP World had already commenced a consultation process with employees and the Union about what was being proposed. After the definite decision was made, a nine-month consultation process is to ensue, during which much of the same uncertainty as was being grappled with in the initial consultation continues to be the subject of those consultation discussions[42]. And further, after this period - "normality" - as it is described by the MUA (the work, the roster, etc.) continues unchanged[43].

[30]

c. In relation to all three positions, given the impending implementation of the AHT project, the prevailing circumstances since November 2024 are not and were not "normal"[46], noting that when Mr Draganovic's and Mr Warszewski's roles became vacant it had commenced consultation with the MUA in relation to the AHT project and when Mr Jacobs' role became vacant (in the formulation of DP World, after the completion of his litigation), a definite decision to proceed with AHT had been made[47].
[48] DP World submits that it is not obliged to advertise and fill FSE vacancies when circumstances change - it is obliged to provide the Employees and the Union with the reasons for non-replacement of existing positions and it has done so[48].
[49] In its oral submissions, DP World's submissions about the "outer boundaries of normal circumstances" were structured around four constructional points.
[50] First, DP World made submissions as to what the relevant circumstances are. These contrasted with the submission of the MUA. The thrust of its submissions are that in determining whether circumstances have changed and are not normal, the Commission should not be fettered by a limited formulation of the relevant circumstances, such as the manner in which the work being performed. It submits the Commission should consider the circumstances broadly, taking into account in particular the prevailing "business conditions" under which DP World is operating and the operation of the business as a whole[49].
[51] DP World's second constructional point related to, in regard to the "circumstances", the question as to what is "normal". Its submissions were framed more so in the negative - that is - as to what is "not normal". In this regard it was submitted that the circumstances (cast in the broad terms it contends for) are not normal when a definite decision to make a change in the mode of operation had occurred, such that the special provisions in Appendix 4 of the agreement had been triggered. It was said that those provisions "presume" redundancies[50], include intensive discussions between the parties[51], "immediately contemplates" changes in rosters and hours[52] and thus "scream we are not in normal circumstances"[53].
[52] It also submitted that the circumstances were not normal even when the change - which later became definite - was being contemplated and consulted about. This submission was based on the proposition that it is not a "normal thing" for DP World to advise the Union that it is considering a major change to a part of the operation that has remained the same for decades, that might result in redundancies[54]. It is also based on the assertion that the scenario here is different from one in which a change is merely being "floated"[55]. It is said its approach to the MUA and its employees about the change beginning in November 2024, albeit still in contemplation, was "genuine"[56] and "materialising"[57], and its "bona fides" shown by the thoughtfulness of the presentation made to employees and the fact that the proposed change was eventually adopted[58].
[53] Thirdly, DP World contends that as to timing, the change in normality with regard to the circumstances as it cast them can be considered with regard to four distinct periods. These are first, the period before November 2024, second, the period from when consultation commenced in November 2024 until 15 April 2025, third, the period between 15 April 2025 when the definite decision was taken and communicated until July 2026 (go live) and, fourth, after July 2026 when, all things being equal, the change will have been implemented.
[54] DP World submits that the circumstances are "unquestionably not normal" from the third of those periods - the period from 15 April 2025[59] - after which time the decision to introduce AHT is definite (and the Appendix 4 process has commenced). But it also submits circumstances are not normal from the second of those periods - the period from 28 November 2024 - because of the abnormality associated with even proposing a change of this magnitude[60].
[55] Fourthly, DP World submits that two of the positions are not vacant because of litigation associated with termination and reinstatement, and further (or in the alternative) that even if the positions were vacant, the nature of the litigation makes the circumstances "not normal"[61]. In this regard, DP World is referring to the positions held by Mr Draganovic and Mr Jacobs, whose employment was terminated on 30 September 2024 and 19 December 2024 respectively, each of whom filed unfair dismissal claims seeking reinstatement that were later resolved without reinstatement (Mr Draganovic on 3 January 2025 and Mr Jacobs, on an in principle basis, on 3 June 2025).
[56] The submission that because of the unfair dismissal claims, these positions were not "vacant" was not fleshed out by DP World to any great degree. I am simply asked to conclude that while the employees were dismissed, the applications for relief they filed in the Commission means their positions were not "vacant". As I have recorded above, this contrasts with the submissions made by the MUA about this matter.
[57] More was made of the submission that, because of the litigation, circumstances were not "normal". The submission is based on the 'tension" between replacing a position, when the employer is on notice that the outgoing employee is seeking reinstatement, "particularly when that employee is represented by the union"[62]. For DP World, the tension is resolved by the final sentence of the clause in question that contains an obligation that the Company provide the Employees and the Union with the reasons for non-replacement of existing positions if circumstances change. DP World says that to resolve the competing claim of reinstatement on the one hand, with the apparent obligation to "fill" the vacancy, its obligation is discharged by it notifying employees and the Union that circumstances have changed[63].

[37]

[63] These parts of the Agreement suggest that a clause like the one in contention, that contains a qualified obligation to replace vacancies in FSE positions if they arise, should not be given an unduly confined operation. In my view, the facilitation of career path and the promotion of permanency is germane to the idea of replacing permanent vacancies when they arise.
[64] However, they also suggest, as DP World submitted, that the Agreement is intended to strike a balance between the benefits it hopes to confer upon employees, with business requirements. Phrases like "consistent with optimum use of all the Company's resources" and "regularly monitored alongside prevailing business conditions" are used. In this regard, it seems consistent with the intent of the Agreement that the qualification in clause 39.6 should also be allowed to do its work.
[65] Second, clause 39.6 sits within clause 39, entitled "Workforce Review". The Union placed reliance on the machinery within which the clause in contention sits. It submitted that the clause is intended to provide a "structured approach to workforce reviews"[69]. It took me to clause 39.3 which that there will be a "Labour Review" in July each year. The review is to assess the opportunity for promotion of VSE to FSE roles - that is - the creation of new or additional FSE roles. The assessment is based on relevant data, and a formula taking into account the extent to which during the year, VSE's have worked shifts performing work tasks in the corresponding FSE roster, unless there is "idle time" (as defined) in the FSE roster. It also took me to additional machinery which, as well as the labour review, allows for special measures to be implemented in the case of a business downturn, such as varying rosters, the "downgrade" of positions from FSE to VSE or from VSE to supplementary (by election) or voluntary redundancies. Machinery also exists for "reversion" to allow for the reinstatement of conditions when business improves.
[66] The Union submitted that the prescriptiveness of clause 39.6 which it contends for operates within the context of machinery which allows for responsiveness to changed business circumstances through the annual labour review and the special measures dealing with business downturn.
[67] There is merit in this submission. Clause 39.6 of the Agreement does not operate in a vacuum. It contains a compulsion, albeit qualified, that vacancies be filled operating in the context of an ongoing, structured workforce review in a manner that balances the aspirations contained within the agreement to facilitate career path (as defined) and promote permanency of employment consistent with business needs.

[47]

[79] This is where the third sentence of the clause becomes relevant, which expressly envisages that the "existing" positions (meaning the vacant positions) are not replaced, "if circumstances change".
[80] On a plain reading of the clause, the "circumstances" referred to in its third sentence are the "normal circumstances" referred to in its first two sentences. Thus a further temporal enquiry is required - that is - whether the "normal circumstances" that prevailed when the obligations in sentences one and two arose (at the time of vacancy) have changed since then, prior to when the positions are filled.
[81] Put another way, if circumstances were "normal" when Mr Warszaewski provided his notice of resignation, DP World was obliged to advertise to fill his position within a reasonable period, by advertising the role as soon as it received that notice, meaning a reasonably brief period after having received the notice, consistent with the things that are necessary to be done to cause an advertisement to be issued. And if circumstances were normal when Mr Draganovic and Mr Jacobs departed their roles, DP World was obliged to advertise to fill their roles within a reasonable period of time by advertising the roles no later than 21 days afterwards, or by 21 October 2024 and 9 January 2025 respectively. However, if between these vacancies arising, and the three roles being replaced, the circumstances that were normal "changed", DP World was, subject the meaning of "change" (which I will deal with below) entitled not to replace the roles and obliged to notify Employees and the Union accordingly.
[82] The initial obligations, if they arise, can be extinguished by the third sentence of the clause up until the point at which the positions are filled. After they are filled, even if "circumstances change" there can be no "non replacement" because there has already been replacement.
[83] Several implications arise from this formulation. First, if circumstances were "normal" DP World was obliged to advertise Mr Warszaewski's role reasonably quickly after 3 December 2024, when it received his notice of resignation. It is also unlikely that during the brief interlude between notice of resignation and advertisement, anything would have "changed" - there is no litigation with respect to Mr Warszaewski and the next change contended for, which is the definite decision to implement AHT, occurred on 15 April 2025 - well after I consider the obligation arising from clause 39.6 arose and should have been complied with, taking into account the obligation to fill the vacancy within a reasonable time. If, having been advertised, the role was then filled reasonably quickly, again, no change has been identified which would disturb the obligation within the likely timeframe.
[84] Secondly, in the case of Mr Draganovic, the obligation arose on 30 September 2024 (if circumstances were normal), such obligation being to cause an advertisement to be issued no later than 21 days afterward, or by 21 October 2024. Two possible "changes" may then occur - one being Mr Draganovic's unfair dismissal claim (filed on 21 October 2024), and the other, the commencement of the consultation process about the proposed change on 28 November 2024 (assuming this constitutes a "change").
[85] For reasons similar to those I referred to above (relating to the concept of "vacancy"), I do not consider that the commencement of litigation seeking reinstatement is a "change in circumstances" of the kind referred to in the third sentence of clause 39.6. First, this would require unworkable construction. Given the vagaries of litigation, it renders nugatory, for an indeterminate period, the obligation created by the first two sentences of the clause to fill vacancies. Second, it would diminish to too great an extent the objective that the clause seeks to achieve - to facilitate career paths including progression from VSE to FSE, because it would cause a vacant FSE position to be held open for an unspecified period of time while the litigation ensues. Third, in so far as this objective is intended to operate balanced with business needs, such a balance is still struck by the structured and regular workforce review mechanisms that seem more appropriate to deal with the circumstance in which a dismissed employee is reinstated after also having been replaced.
[86] The consultations about AHT (particularly in relation to OHS) is said by DP World to constitute a change in normal circumstances, and began on 28 November 2024. If on 30 September 2024 there were "normal circumstances", Mr Draganovic's role should have been advertised by 21 October 20024. Depending on how long it would have taken for applications for the role responding to the advertisement to be processed, the position may well have been filled by 28 November 2024 - especially taking into account the obligation to fill the vacancy within a reasonable time. Indeed, I consider it reasonable that an advertisement which required to have been displayed no later than 21 October 2024 would have resulted in the role being filled before 28 November 2024, noting that the hire would have come from the existing VSE pool in accordance with the Agreement. In this scenario, there is no change in circumstances likely to have arisen before the role should have been filled to extinguish the obligation even if what commenced on 28 November 2024 does constitute a change in circumstances.
[87] Thirdly, in the case of Mr Jacobs , the vacancy, and thus the obligation, arose after 28 November 2024. If circumstances were normal, the role should have been advertised by 9 January 2025 and therefore likely filled before 15 April 2025 - the next potential change. Mr Jacobs filed an unfair dismissal claim on 9 January 2025 but for reasons I have outlined, I do not consider this constituted a changed circumstances for the purposes of the third sentence of clause 39.6.

[49]

[88] This leaves the question as to whether, on 30 September 2024, 3 December 2024 and 19 December 2024, circumstances were "normal".
[89] On a plain reading of the text of the clause, it is clear that it imposes an obligation on DP World to fill vacancies. It is also clear that this obligation is not absolute - it is qualified such that it only arises in "normal circumstances" and thus does not arise in abnormal circumstances. "Normal" must be read in context - a normality warranting vacancies to be filled or an abnormality meaning they should not be.
[90] Thus, it cannot be any change in what is "normal" that is contemplated by the clause. The change in normality must relate to the subject matter of the clause, and, with regard to the principles of proper construction, its evident purpose and object.
[91] DP World's third constructional point is a useful frame of reference: that the relevant points of enquiry as to normality are prior to the commencement of consultation about the proposal (prior to 28 November 2024), between 28 November and 15 April 2025, after 15 April 2025 but before June 2026 and after 2026.
[92] Mr Draganovic's vacancy arises at the first of these points of enquiry - before 28 November 2024. DP World itself does not contend that circumstances at this time were other than normal. I therefore consider that on 30 September 2024 DP World was obliged to advertise this vacancy no later than 21 days hence, or by 21 October 2024. As I have said above, I also do not consider any change to that normality could have arisen before that role, having been advertised, was likely to have been filled.
[93] Both Mr Warszaewski's and Mr Jacobs' vacancies arise at the second of the points of enquiry - after 28 November 2024 but before 15 April 2025. At this time, while AHT is in contemplation, but no decision has been made to implement it. Thus, were these normal circumstances?
[94] I consider that when Mr Warszaewski's and Mr Jacobs' vacancies arose, circumstances were "normal" within the meaning of clause 39.6. In reaching this conclusion, I express no preference for either the Union's or DP World's formulation of "normality" each being, I suspect, at opposite ends of a spectrum. All of the circumstances are relevant to the formulation of normality such that abnormality can be identified. These include circumstances in which change - even significant change - is from time to time contemplated and consulted about. They also include shifting business requirements, constantly impacted as they are by innumerable factors. And they also include the circumstances in which the work is being performed and the nature of that work.
[95] The question is whether there is an alteration to those circumstances relevant to the subject matter of the clause - the requirement to fill vacancies.
[96] After 28 November 2024, what was happening at DP World was that it was seriously talking to the MUA, its health and safety representatives and its employees about a possible change and, if the change was implemented, likely redundancies at some point in the future.
[97] Work was continuing as normal. There had been no change implemented such that the work previously being done by Mr Warszaewski, Mr Draganovic and Mr Jacobs was no longer required. On the evidence before me, there is also no discernible "business requirement" that warranted the suspension of the intent to achieve the provision of reasonable career paths, as defined, and to maximise permanency, simply because these conversations were occurring about a possible change (albeit significant) to the process. The change, if it was to be implemented at all, would require a definite decision to be made and then a consultation and implementation process to ensue over a period of over a year. If the "business requirement" was the undesirability of filling a vacant position when at some point in the future there may be a need to reduce workforce size due to redundancy, this prognostication is very much on, or even beyond the horizon. Meanwhile, the work performed by the people in the positions in question had not changed at all. In DP World's own words, the site was operating as normal.

[50]

[98] I have determined that DP World was obliged to advertise the vacant positions held by Mr Warszaewski, Mr Jacobs and Draganovic by operation of clause 39.6 of the Agreement, for the reasons set out above.
[99] I am asked by the Union to make orders to give effect to my determination in this matter.
[100] This requires me to give consideration beyond the first two of the points of enquiry identified by DP World and referred to above, because any Order I to make is to be made in the circumstances that prevail now, not when the vacancies arose. Presently, we are in the third of the periods identified by DP World - the period between 15 April 2025 and June 2026 - after a definite decision has been made to introduce AHT. Both parties agreed that if I were to find myself in this situation, it would be necessary to have regard to what the circumstances are now, regardless of what they were at the time the vacancies should be been filled[71]. It would make no sense and indeed it is likely to be impermissible if I were to Order that the vacancies be advertised now, if circumstances have changed within the meaning of the third sentence of the clause by reason of a definite decision to implement the change having been made.
[101] However, I consider that the reasoning that results in the conclusion there are normal circumstances after 28 November 2024 when DP World began consulting about the possibility of AHT continues to apply even after a definite decision had been made.
[102] In reaching this view, I agree with DP World's submission that prior to 15 April 2025, the consultations being engaged in by DP World with employees and the Union were more than just being "floated". They were considered and genuine consultations about the proposal and appeared to permeate all of the discussions between DP World and is health and safety representatives and the MUA during the period. Thus, when the definite decision was made, not a great deal changed. Consultations, now formalised through Appendix 4 of the Agreement were to continue, and, I accept, may intensify. This process will continue for a significant period of time. During that time, the work will continue as normal. And, as I said above, I am not persuaded there is anything that has changed at this stage in terms of DP World's business requirements that justifies the suspension of its aim to promote its preferred career path and permanent employment during the period of this lengthy consultation process.
[103] In reaching this conclusion, I have considered DP World's submission that the result of the application of Appendix 4 of the Agreement is that a significant consultative process is now underway, resulting in abnormality. I have also considered the evidence which shows that at some point - perhaps not until mid 2026 - redundancies are likely (albeit this is not certain). However I do not accept that at this present time this is a change in the normality which would ordinarily warrant vacancies to be filled, meaning they should not be.

Construction, Forestry and Maritime Employees Union v DP World Melbourne Ltd T/A DP World Melbourne [2025] FWC 1881

At a glance

Court

Decision date

Source

Judgment (111 paragraphs)

Construction, Forestry and Maritime Employees Union v DP World Melbourne Ltd T/A DP World Melbourne [2025] FWC 1881 (29 August 2025)

Parties

Legislation Cited (2)