C2015/1838, Transcript of Proceedings [2015] FWCTrans 161 (25 March 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009                                       1051474

VICE PRESIDENT WATSON

C2015/1838

s.418 - Application for an order that industrial action by employees or employers stop etc.

DP World (Fremantle) Limited

and

Maritime Union of Australia
(C2015/1838)

Melbourne

6.45 PM, THURSDAY, 26 FEBRUARY 2015

PN1

THE VICE PRESIDENT: I propose to indicate my decision in relation to this matter now.

PN2

The matter is an application under section 418 of the Act for an order that industrial action stop and the Commission is required to make an order under that section if it appears to the Commission that industrial action by one or more employees or employers that is not protected industrial action is happening, is threatened, impending or probable or is being organised.

PN3

It appears that industrial action is being organised and it is being organised pursuant to a notice issued by Mr Evans of the MUA dated the 8 December 2014 and it includes the various forms of industrial action that are specified in that notice, including at point 1, a ban on the performance of overtime and that ban is of an indefinite duration from 12 December 2014.

PN4

It also appears that industrial action by members of the MUA is threatened, impending and probable as a result of that notice and the position of the MUA that work on a public holiday is overtime and therefore subject to the notice of 8 December.

PN5

The critical issue, as it appears to me, is whether that industrial action is protected industrial action, because if it is protected industrial action then there is no obligation and no basis under section 418 to make an order that that industrial action stop. Whether the industrial action is protected action or not depends on whether the work that is proposed to be allocated to employees next Monday, 2 March, Labour Day in Western Australia, is overtime and therefore covered by the notice of 8 December or whether it is not overtime.

PN6

If it is not overtime for the purposes of the enterprise agreement and insofar as it has incorporated the Stevedoring Award, then the notice does not apply to it and any organisation or impending industrial action in accordance with the notice, would not be protected industrial action.

PN7

Whether the work next Monday is overtime or not depends on the construction of the enterprise agreement. The principles for interpreting enterprise agreements are well established. I do not repeat them now. They require the construction consistent with the context of the agreement and based primarily on the wording of the agreement, and with an approach to give effect to the mutual intent of the parties in making the agreement that they have.

PN8

In my view, the enterprise agreement deals with the question of ordinary hours of work, overtime and work on public holidays in separate provisions. They are dealt with in part A of the agreement and they are supplemented by the provisions of part B which modify the terms of part A, especially in relation to payment. However, in my view it is clear on a construction of the agreement, that work on public holidays is not overtime for the purposes of the agreement.

PN9

Overtime is, in its normal concept and consistent with the wording of the agreement, is work outside the ordinary rostered hours of work. There are unusual arrangements for rostering and allocation of work to employees covered by this agreement and the Stevedoring Award, depending on the needs of the business, primarily ship movements. But normal rostered shifts or allocated shifts for employees, on any day of the week, consistent with and within the scope of the 35‑hour a week average, whether it be Monday to Friday, on a weekend or on a public holiday, is not overtime for the purposes of the agreement.

PN10

Additional hours that are required to be worked, such as additional unrostered shifts, work outside the 35 hour average, shift extensions and either before or after the shift are overtime, but that is not what we are dealing with here. We are dealing with a situation where the company proposes to allocate shifts in accordance with its business requirements from 2 pm next Monday and that shift is - and other shifts that may be allocated on that day - are part of the ordinary hours of work and subject to penalty payments under the Public Holidays clauses of the enterprise agreement.

PN11

The Public Holiday clauses set a premium for working on that public holiday but the setting of a premium does not make that allocation of work overtime for the purposes of the agreement. It is clear in normal conceptions, in drafting of awards and agreements, that public holiday premiums and weekend premiums are different from overtime premiums, which are of a different nature to penalty premiums of the type that I have mentioned.

PN12

The MUA makes reference to the wording of clause 13.1 of the agreement and argues that clause 13.1 and 13.3 means that payments for public holidays are a form of overtime payment and work on public holidays is a form of overtime. I reject that interpretation and I do not believe that it accurately reflects the true meaning and intent of the agreement.

PN13

It follows from that analysis that any industrial action on next Monday, 2 March, would not be covered by the Notice of Protected Industrial Action issued on 8 December 2014. It would not therefore be protected industrial action and insofar as it may be being organised, threatened, pending or probable, would require me to issue an order that the industrial action not occur and not be organised.

PN14

I propose to issue such an order. I propose to do so at approximately midday tomorrow. However, I will consider whether there is a necessity to issue the order and whether the circumstances in this matter have altered sufficiently. If I receive advice from the MUA prior to midday tomorrow that it considers that its notice of 8 December last does not authorise protected industrial action for the rostered shift next Monday, 2 March, and that it has advised its members employed by D P World at Fremantle to that effect, namely that the 8 December notice does not authorise industrial action next Monday.

PN15

As I say, if I receive advice from the MUA before midday, Eastern Standard time, Eastern Summer Standard time tomorrow that the MUA acknowledges that position in the light of my decision here today, and has advised its members accordingly, then there may not be a basis to issue the order given that there is a necessity to prepare the order and some delay in the circumstances, I propose to only issue the order if I do not receive such advice from the MUA.

PN16

I propose to issue the order, subject to what I have just said, substantially in the terms sought by the company. However in the light of the negotiations that are occurring for a new enterprise agreement and the progress that has been made in relation to those negotiations, I propose to limit the period of that order to a period of six weeks from tomorrow.

PN17

I will issue this decision, edited from the transcript in this matter, and I will issue the order, as I have indicated, subject to any notice of the type I have indicated from the MUA.

PN18

I now adjourn the proceedings.

ADJOURNED INDEFINITELY                                                           [6.57 PM]