C2014/142, Transcript of Proceedings [2015] FWCTrans 133 (18 March 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

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COMMISSIONER CAMBRIDGE

C2015/142

s.739 - Application to deal with a dispute

Maritime Union of Australia

and

Sydney International Container Terminals Pty Ltd
(C2015/142)

Sydney

12.06PM, THURSDAY, 19 FEBRUARY 2015

PN1

THE COMMISSIONER: Yes, we're on record, so I'll take the appearances, please.

PN2

MR K BOLWELL: Thank you, Commission, Mr Bolwell, initial K for the Maritime Union and with me is Mr Keating, the Deputy Branch Secretary of the Maritime Union. And in the gallery is Mr Olsen and Mr Marko, both planners employed at Hutchison.

PN3

THE COMMISSIONER: Thank you.

PN4

MR P BROWN: If it please the Commission, Brown initial P, solicitor. I seek leave to appear on behalf of the two respondent parties to this application. Also with me to my immediate left is Ms Mihalopoulos - I'll spell that, M‑i‑h‑a‑l‑o‑p-o-u-l-o-s, initial H, who holds the position of the General Manager for Industrial Relations for the Hutchison's Port. And before my friend gets to his feet, I would only seek leave to appear today because I think my submissions will go to - if I'm pressed on the issue, and I'm more than happy to address you on it, I think that this is a matter where there may be some difference between what is initially put before you and how this ends up. But I don't want to - I'll keep my powder dry on that.

PN5

THE COMMISSIONER: That's a bit cryptic at this stage.

PN6

MR BROWN: It is a bit cryptic, but - - -

PN7

THE COMMISSIONER: Well let's take this step at a time. Mr Bolwell, is there any objection, at least at this stage, to the respondent being represented?

PN8

MR BOLWELL: No, Commissioner.

PN9

MR BROWN: Thank you.

PN10

THE COMMISSIONER: All right. Well at least for today's purposes, permission is granted, Mr Brown.

PN11

MR BROWN: Thank you.

PN12

THE COMMISSIONER: Mr Bolwell, it's your application.

PN13

MR BOLWELL: Thank you, Commissioner. This is a dispute pursuant to section 73(9) of the Fair Work Act lodged on 22 January this year. The union filed this dispute because it was unable to receive a response from the employer to our correspondence and several telephone calls from as far back as 2 December last year. These are provided as attachments to the Dispute Notice.

PN14

We were disappointed that the company still refuses to engage with our communication and in short, this dispute concerns the correct employment instrument of personnel employed at Hutchison Stevedores that are known as planners. Planners plan the stevedoring of vessels. This work includes, but is not limited to arranging the allocation of all containers in the port, managing containers, tracking data and to optimise container planning, preparing daily stock status reports, ensuring planning of discharge and load units are located near the vessels and assigned berths and storage calculation for outstanding empty and full containers.

PN15

Critically, these planners want to be employed pursuant to a collective agreement and not under Common Law arrangements. That is important to planners and therefore it's important to the union. Hutchison's planners want a collective agreement and the MUA wants to see them have one as well.

PN16

The union contends the employer is attempting to avoid its obligations as provided for by the agreement, which is rather a long-winded name, but we'll call it the Sydney International Container Terminals Greenfields Agreement of 2013. We say planners should be employed, pursuant to this agreement and a plain reading of the relevant parts of the agreement supports our view.

PN17

The relevant starting point is the parties and scope clause at clause 2.1 of the agreement and relevantly, clause 2.1 provides:

PN18

This agreement covers Sydney container terminals and the company or the companies and their relevant employees engaged as stevedoring employees in all award classifications and the Maritime Union of Australia.

PN19

Clause 2.2 provides:

PN20

This agreement shall apply to companies intended container terminal stevedoring operations in Sydney.

PN21

And from that scope clause or scope clauses, it's clear the agreement has two links to the planners at Port Botany. The first linkage is the Stevedoring Award and on that point, planners are genuinely recognised at Grade 6 and 7 of the current Stevedoring Award which we say would equate to level 4 or 5 in the agreement.

PN22

The second linkage is geographic, in that the agreement applies to the company's intended container terminal stevedoring operations in Sydney. So in the union's view, it's clear that planners, long under the current agreement in force, and we invite the company to acknowledge that and timetable arrangements for working out the details to bring that acknowledgement into practical effect. Thank you.

PN23

THE COMMISSIONER: Mr Brown?

PN24

MR BROWN: There seems to be - would you prefer I stood or sat?

PN25

THE COMMISSIONER: It's a matter for you. Whatever you're more comfortable with.

PN26

MR BROWN: I'll stand - I am more comfortable sitting, but I didn't want to be rude. Three issues. True it is that these planners are employed under Common Law contracts, and there's a reason for that in that they are not, and have never been, covered by the particular instrument that brings us here today. That much is almost acknowledged by my friend's opening submission, that he wants to have a collective agreement for these people.

PN27

That begs the trite response, "Well, if you're seeking to have a collective agreement and to negotiate a collective agreement, on your own submission you seem to be saying that you've already got one". Now, we acknowledge that this union, that the issue of eligibility rules are completely different as to what the Modern Award covers and what the Enterprise Agreement covers.

PN28

We have to acknowledge that if this particular union wishes to start negotiations and want negotiations on some sort of an industrial instrument for the planners, that goes off in a different direction. It doesn't belong under this particular section of the Act, because this particular section of the Act only deals with classifications that are covered by it.

PN29

Then we get to the second issue, which seems to run contrary to the first submission. The first submission of course is, why would you want a new collective agreement when you've already got one on your own submission? Then we go to clause 2.1. Now, I put my friend on notice on this and it does refer to other proceedings.

PN30

Now, I think it can be taken as read by all of us around this table who have some familiarity with this industry, that Mr McNally was spending a lot of time on his feet two weeks ago before the Modern Award Review process, and the thrust of the union submission in those proceedings was that they felt that when the Modern Award was made, it had a particular feature that meant that the further you got away from - to put it in my terms - the further you got away from the dock, the less chance that you could be covered by the award. They're my words.

PN31

And I was there when Mr McNally was putting his submissions and I'm aware of what the submissions are. But it strikes us as quite odd that the union are on their feet in front of the Full Bench in relation to the Modern Award, attempting to argue that the definition of the stevedoring industry, for the purposes of the Modern Award, should cover exactly the kind of people that we're talking about. And we find it quite odd that you can be in front of the Full Bench saying, "We have a problem with the Modern Award in that it doesn't cover a whole host of people, including planners, because of the narrow definition of the stevedoring industry, and be down here two weeks later attempting to say to this Commission that they're covered by this particular agreement.

PN32

Now the third point, and it really goes to the complexity of this matter and I think it gets to a number of decisions that relate to enterprise agreements. I would make the submission, and maybe would disagree with it, that this application's expressed as a bald declaration. And when you look at the application in front of you, it seeks exactly that. It seeks a declaration effectively that these individuals called planners, which will be for another day to work out what they do, are actually covered.

PN33

Now, that's not what this Commission, using these powers, can and should do. That's just rank judicial power. If you want to have an industrial instrument interpreted and a declaration made, you go to the Federal Court or the Federal Circuit Court. And that law is as old as Methuselah.

PN34

If it is the case, however, and this is why I said that I thought that perhaps this particular dispute may end up being reformulated - if there's an individual who comes forward and says, "Here are my facts and circumstances. I believe that my facts and circumstances are such that I'm being denied this particular benefit", and the union wants to take those particular facts and circumstances and apply those under the grievance procedure, without telling my friend how to suck eggs, that's something that could at least be in the ball park.

PN35

You've got a person coming forward. They say they're covered by the agreement. There's a process that occurs. It's the process that gives the jurisdiction to this Commission under this section. That hasn't occurred here. The union has just bolded up to you as a bold declaration. We want you to declare that these planners are covered by the Enterprise Agreement.

PN36

Now, my friend might say if I have a problem with that, I should go to the Federal Court. I should go to the Federal Court and beat him to it. The Federal Court will first of all say, "Is this a question right for consideration?" So if want comes out of today is some sort of a reformulation of the case, we might be all better off in that regard. And you might recall recently - and I think it's a case on point - I don't want to bore you with it, but it was a Full Bench decision which I think was a little bit unfair to poor old Commissioner Roberts. And the thrust of the decision was that, in the course of the dispute resolution matter - it's a decision of Transport Workers Union of Australia and Linfox. It's a decision of the Full Bench, Boulton, Sams and Bull handed down on 19 December.

PN37

What it had to say there was, that sometimes in these sorts of proceedings, issues morph, they change. And what I'm concerned about with this matter is that if what I'm confronted with today and what I walk away from here today is the bold declaration, I fear that this matter goes to the Federal Court and I have to get on my skates.

PN38

If it's being reformulated in some way and you permit it to be reformulated, then at least can we have a look at how it's reformulated and deal with it during the grievance procedure so that at least, if there is an issue, it can be dealt with? So my friend wants me to accept a proposition that we don't accept and my submission wouldn't take him by surprise. The source - the stream can never go above the source. The source, of course, 2.1, talks of the stevedoring employees in all award classifications. That can only refer to one thing, the Modern Award. And this was a Greenfields agreement that was made in 2013.

PN39

Then when you get to the recent decision of the Full Court in AMIEU and Golden Cockerel where we're getting into what appears to be some very new case law on interpretation of agreements. As I read that decision, which is a fairly important one, that's 2014 FWCFB 7447, which I'm sure we're all across, it seems to be saying that you don't get into extraneous evidence and issues if there's no ambiguity. There can't be any ambiguity on the words, "Stevedoring employees in all award classifications" because that can never go beyond the Modern Award and we've got the same union in front of the Full Bench, have filed submissions - filed submissions that the effect concede the point that they're asking me to concede here.

PN40

Now, I did write to my friend on this issue, and I'd like to hand the letter up, only for the fact of it.

PN41

MR BOLWELL: You going to reply to it as well?

PN42

MR BROWN: Well, it's your document for the reply and if you wish to hand it up, I don't have any objection.

PN43

MR BOLWELL: (Indistinct).

PN44

MR BROWN: That's okay. I can't hand your document up.

PN45

MR BOLWELL: Well, I'm just asking you.

PN46

MR BROWN: Well sorry, it's not for me to hand my friend's documents up but I'm happy for the letter and response, to have them marked as exhibits in the proceedings. I seek to have my letter marked as an exhibit. My friend might want it for information only.

PN47

THE COMMISSIONER: I don't think I'll mark anything just yet.

PN48

MR BROWN: Okay. I didn't intend - the only purpose for tendering it, Commissioner, is to say that we've put the union on notice. My friend's response is what it is. But we do have some difficulty with this notion that the very group - and this is my last point - the very group of people that we're talking about seem to be part of the union's submissions before the Full Bench and it's quite evident from what I saw there the other day, that the union wishes to have the Full Bench amend that definition to take the coverage of that award inland. I make no comment about that.

PN49

We're dealing with employees here that are clearly inland. We can have some evidence if we need to about what these people do, but they're employed currently under Common Law contracts. There are negotiations with respect to some form of collective agreement of some description. That's the height of my instructions at the moment. If the union wants to be part of that process, there's a whole bunch of other laws that deal with that. I've gone on for too long, I’m sorry, Commissioner.

PN50

THE COMMISSIONER: Mr Bolwell, did you want to respond to that?

PN51

MR BOLWELL: Just briefly, Commissioner. Three points. The first one is we are looking at a basic interpretation of the scope of the agreement argument. I appreciate my friend's comments, but I think they are essentially a distraction from the real issue, does the agreement apply or not? And I think it doesn't go much further than that.

PN52

As for the comments regarding the Federal Court, rely upon section 53(3)(b) of the Fair Work Act which provides:

PN53

An Enterprise Agreement, also covers an employee, employer or employee organisation if any of the following provides or has the effect that the agreement covers the employee, employer organisation. A Fair Work Commission order made under a provision of this Act.

PN54

MR BOLWELL: That's what we're asking for and that's what we ask for in the relief sought at point 7 of the Dispute Notice. So I don't think the Federal Court arguments have much weight.

PN55

And finally, my friend's comments regarding us, the union seeking to make this application go inland or the coverage go inland, my instructions are that the planners work around 100 metres from the water. So I don't see there's a significant inland argument there either. That's all at this stage. Thank you.

PN56

THE COMMISSIONER: Well, I apprehended from the application that perhaps, in some respects, the application was made as a means to try and have a forum for discussions between the union representing ships and planners and the employer about the terms and conditions of regulation of their employment. And look, it might be that legally there's a bit of a problem here because the very question that's being asked can't invoke the jurisdiction in the application.

PN57

That is, to use the 739 provision as a means to test the coverage of the actual agreement, might be a bit difficult in itself. You probably have to test the coverage of the agreement via a different approach. I'm not sure of that, but that might be something that needs to be carefully considered. But that might not be at a problem if the application operates to at least create the forum that I thought was desired.

PN58

That was - well, we've been making these approaches to talk to the employer and we really haven't been getting very far, so the application is made and the employer will need to answer it and come down to the Fair Work Commission. Hopefully then we can sit down and talk about these things. So just from a very sort of common sense approach, I thought well, before we got ourselves too troubled about some of these other things, maybe there might be the capacity for the parties to actually make arrangements to meet and discuss those questions.

PN59

MR BROWN: Well, we are here so the forum issue has been ticked, and I think I opened my submission by saying the metes and bounds of the Modern Award is a different issue from the metes and bounds of the eligibility rules of the union. This application could have come from a different angle. The union could have chosen to have sought to commence the bargaining and then claim that we're not bargaining in good faith. We could have arrived at this forum, as you call it, through a different route.

PN60

THE COMMISSIONER: Well yes, a majority support determination application or something of that nature.

PN61

MR BROWN: A myriad of them - a myriad of them.

PN62

THE COMMISSIONER: Yes.

PN63

MR BROWN: It's not - the days of - - -

PN64

THE COMMISSIONER: Sorry to interrupt you. Presumably employers saying - not saying, "Well look, we don't want to hear from our ships' planners about anything that they've got to say".

PN65

MR BROWN: No, no.

PN66

THE COMMISSIONER: It wants to treat its employees fairly and with respect and it would recognise it, if they've decided to join a union, whether that's ultimately seen as being something that they're occupation properly covers, whether that union properly covers them, another matter entirely. But at least for these purposes, we'd recognise that and we'd sit down and talk to them sensibly about whatever it is might be their aspirations about all of this.

PN67

MR BROWN: I don't think my client has got anywhere else to move on that one, but if it comes via that particular channel, then we might be forced to do it. But we're here and some would say, seize the opportunity.

PN68

THE COMMISSIONER: Well, you don't necessarily have to do it here and now.

PN69

MR BROWN: No.

PN70

THE COMMISSIONER: But we might make the arrangements for how that could be facilitated and sort of try and schedule a little program to do that and hopefully then that might lead to, in due course, perhaps the withdrawal of the application because it's effectively achieved the purpose that might not have appeared entirely correct in the way it was done, but nevertheless, it achieved the purpose and it got the parties together talking and, who knows, you might sit down and actually the come up with an agreed arrangement for these people and how their employment should be regulated. I don't know, but - - -

PN71

MR BROWN: Could I ask a question through you? I left after Mr McNally was in full flight the other day. The proceedings before the Full Bench on the award stage review, it raises an interesting question that if the union's submission in that is then granted, some of these - I'll call them inland employees, could very well then start to fall under the Modern Award. It would raise a very interesting question, wouldn't it?

PN72

THE COMMISSIONER: Well, it might, but I'm not sure whether - - -

PN73

MR BROWN: Anyway, my friend might have some time - - -

PN74

THE COMMISSIONER: In a practical sense, I'm not sure that these people and their employer need to be too troubled by those things, at least initially. I would have thought that the ingredients are these. We've got people that don't have any collective arrangements. There appears to be a desire by some - I don't know how many, but some of them at least because they've gone and joined the union and the union's agitating a position on their behalf.

PN75

So in those circumstances, wouldn't it be best to sort of sit down, try and see whether there can be some sensible arrangements or at least an agreement about what does or doesn't apply to these people between the parties? That might not be ultimately strictly correct, but at least the parties could venture down that pathway. It might be that those discussions don't prove to be fruitful and then things like the majority support determination and all of that might be the process by which that's dealt with.

PN76

But I'm adopting that sort of KISS principle of trying to keep it as simple as possible at the moment and just say, "Well, okay, there are all these potential questions about the eligibility of the organisation, the coverage of the agreement and, of course, that's linked to the coverage of the Modern Award. All of those questions are interesting but really, wouldn't we be better served by trying to arrange to meet to discuss what might be just some very fundamental workplace concerns of a group of individuals and their employer can try to accommodate that as best he can.

PN77

MR BROWN: I don't cavil with that approach.

PN78

THE COMMISSIONER: Mr Bolwell, have I misunderstood this at all?

PN79

MR BOLWELL: The union also seeks to adopt the KISS principle and this would in part - this approach was in part adopted to finally get the employer to talk to us. So we're pleased it's happened.

PN80

THE COMMISSIONER: All right.

PN81

MR BOLWELL: We do reserve our position though, in relation to the point you made, that there may be inappropriate legal course to seek an order about this agreement. We're not satisfied at this stage that the Fair Work Commission does not have the jurisdiction to make an order consistent with the Act. But if we can get things - - -

PN82

THE COMMISSIONER: We could do that, but I'm not sure it can do it by way of an application that pre-supposes its jurisdiction to do that in that it's almost pre-determining the matter by way of the nature of the application.

PN83

MR BOLWELL: I accept there's an argument.

PN84

THE COMMISSIONER: I don't want to trouble ourselves too much about that, because we may not need to worry about it.

PN85

MR BOLWELL: But the reason why I'm saying it is because we want to reserve our view about whether or not this agreement is going to apply to these employees or not. That's why I'm putting an anchor in the ground about it.

PN86

THE COMMISSIONER: All right. Your discussions aren't conceding the point that they're not covered. We'll put it that way.

PN87

MR BOLWELL: That's correct.

PN88

THE COMMISSIONER: Ultimately, if that has to be tested, whether this is the right application to test that is all I'm raising as an issue.

PN89

MR BOLWELL: Understood.

PN90

THE COMMISSIONER: But I think what's better for everyone concerned is to actually say, "Well okay, when can we arrange to meet? When can we sit down and discuss whatever it is that are the problems?" Try and find out how we can deal with that. If we've got a group of people who are not covered by a collective instrument and the majority of them want to be, it's fairly obvious the pathway that the legislation envisages for that.

PN91

But these are questions that I think probably need to be the subject of sensible, calm discussion between the parties and if that doesn't work out to be a solution and there isn't some arrangement put in place that the parties find acceptable, then obviously this application can remain here, but whether it ultimately can proceed further is a question that obviously we'd need to give some serious thought to.

PN92

MR BOLWELL: May I propose a way forward at this stage?

PN93

THE COMMISSIONER: Yes.

PN94

MR BOLWELL: Which is that we have some discussions now.

PN95

THE COMMISSIONER: Yes.

PN96

MR BOLWELL: And see where that discussion leads us.

PN97

THE COMMISSIONER: Yes. You want me to leave and you can have a discussion about this? All I was going to suggest was it might be - the most sensible way to do it might be to say, "Well look, can you agree on a time and a place and a venue to have a meeting?"

PN98

MR BROWN: It's going to have to be the latter, for two reasons.

PN99

THE COMMISSIONER: Yes.

PN100

MR BROWN: The person instructing me is on a ship in a couple of hours and I'm on a plane in a couple of hours.

PN101

THE COMMISSIONER: All right, well let's do it calmly, but we've now got what we would do is formally make the arrangements, put the arrangements in place for the meeting to occur. And it would probably be best to be done on site, I would have thought - that's the logical way to do it, isn't it, rather than here. But anyway, that's up to you people.

PN102

But we just agree on time, place and we have the meeting and then I'll list the matter for report back at some point in the future and we'll see whether that report back is even needed.

PN103

MR BROWN: Thank you, Commissioner.

PN104

THE COMMISSIONER: Does that sound sensible?

PN105

MR BOLWELL: Thank you, Commissioner.

PN106

THE COMMISSIONER: Should we just do that now? Should we go off record and get the meeting arrangements formalised and so everyone's clear?

PN107

MR BROWN: If you could pardon my back and we'll just do the diary thing outside and then come back?

PN108

THE COMMISSIONER: All right. Well, what we might do is we'll just stop the recording there, thanks.

OFF THE RECORD                                                                             [12.33 PM]

ON THE RECORD                                                                               [12.36 PM]

PN109

THE COMMISSIONER: During the course of the off record discussions, the diaries have been consulted and agreement has been reached. The arrangements for a meeting between the parties are that they will meet at 10 am on 16 March next.

PN110

At this stage, there's been no particular request or requirement for a formal date to be fixed for further proceedings but the file will remain open and can be reactivated at the request of either party, if they believe that the Commission might be able to assist them with the matter further.

PN111

MR BROWN: Thank you, Commissioner.

PN112

MR BOLWELL: Thank you, Commissioner.

PN113

THE COMMISSIONER: If there's nothing further at this stage? No? On that basis then the proceedings now stand adjourned.

ADJOURNED INDEFINITELY                                                         [12.37 PM]