Australian Institute of Marine and Power Engineers, The v Svitzer Australia Pty Limited

[2014] FWC 6154

[2014] FWC 6154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Institute of Marine and Power Engineers, The
v
Svitzer Australia Pty Limited
(C2014/1121)

VICE PRESIDENT WATSON MELBOURNE, 9 SEPTEMBER 2014

Dispute in relation to Monty Woolley, provisions of the enterprise agreement - previous dispute settlement regarding Mr Woolley - direction to comply with Geelong roster - whether direction complies with agreement - Fair Work Act 2009 s.739 Alleged dispute about matters arising under the enterprise agreement.

Introduction

[1] This decision concerns an application for the Fair Work Commission (the Commission) to deal with a dispute. The application is made by The Australian Institute of Marine and Power Engineers (AIMPE) under s.739 of the Fair Work Act 2009 (the Act). The application is made in relation to the provisions of the Svitzer Australia Pty Limited and AIMPE Towage Enterprise Agreement 2013 (the agreement) and a previous dispute settlement in relation to Mr. Woolley.

[2] The dispute was listed for several conferences but the parties were unable to reach a resolution. The matter was then referred for arbitration and was listed for hearing on 27 August 2014. At the hearing Mr. N Niven appeared for AIMPE and Mr. B Cross of counsel and Mr. A Umansky appeared for Svitzer. Evidence was given by Mr Woolley, Mr Goode, Mr Umansky and Mr Eagan.

[3] Mr. Woolley is an engineer who has been employed by Svitzer in Victoria since 2007 initially at Westernport. Under the Agreement and its predecessors, engineers are allocated a home port for the purposes of crew allocation - clause 15.2.1 of the agreement. His home port has been Geelong since 2010 when Svitzer reduced the number of crews at its operations at Westernport.

[4] In recent times Mr Woolley has been engaged at Melbourne filling in for another engineer, Mr Anderson who was seconded to run an Australian wide maintenance program, and has since accepted a permanent onshore role. That transfer in location, and two earlier instances, arose from the settlement of a dispute in 2010, coinciding with reduction in crews deployed at Westernport.

[5] Svitzer is in the course of altering the Melbourne Port Operating Procedures (POPs) through discussions with the three maritime unions. Its intention is to reduce the number of crews at Melbourne from 10 to 8 and a corresponding reduction in permanent full time engineers from 10 to 8 and the engagement of a part-time engineer with a 75% workload. It led evidence to the effect that its managers understood that on 11 June 2014 agreement was reached with the three maritime unions for the introduction of new procedures.

[6] On 18 June 2014 Mr Woolley was directed to return to Geelong from 3 July 2014 after taking a weeks leave. He disputes the right of Svitzer to direct him to do so.

[7] The parties agree that the dispute is to be determined by answering the following questions:

1. In light of the provisions of the enterprise agreement and a previous dispute settlement in relation to Mr. Woolley, does Svitzer have the right to direct Mr Woolley to work in Geelong from 3 July 2014 and on an ongoing basis as per the roster determined by the Company?
2. Do any future changes in circumstances affect this situation?

Jurisdiction

[8] Clause 10.1 of the Agreement provides as follows:

“The following procedure shall apply to settle disputes about any matters arising under the Agreement and in relation to the NES.”

[9] AIMPE contends that the dispute arises from clause 16 of the Agreement which provides:

“16. Recruitment

16.1 Process for recruitment of permanent employees and trainees

16.1.1 Where SVITZER intends to recruit permanent employees and Trainees it will:

(i) Advertise the position (the Union will be advised of this or be given a copy of the advertisement and it may identify candidates for consideration);

(ii) Screen and interview applicants (an agreed employee from the area of operation concerned will be invited to participate in the interview process, however, the decision of management in selecting the successful candidate will be final);

(iii) Check references and medical fitness for the job;

(iv) Choose the successful applicant on the basis of merit, qualifications and experience.

16.1.2 Subject to this clause 16, in the first instance the Company will consider and give preference to qualified persons listed on the AIMPE Employment Roster.

16.2 Process for selection of casual employees

16.2.1 To facilitate selection and engagement of suitable and qualified casual employees, SVITZER will, in consultation with the Union:

(i) develop and maintain a list of suitably qualified casual candidates;

(ii) screen and interview candidates for potential or actual casual employment (an agreed employee from the area of operation concerned will be invited to participate in the interview process);

(iii) check references and medical fitness for the job.

16.3 Certification

16.3.1 SVITZER agrees to engage permanent engineer employees who possess either class 1, class 2, or class 3 Certificates of Competency as required to meet the needs of the business. In the case of the holder of a class 3 Certificate of Competency, that person will also hold a trade qualification as either a fitter and turner, diesel fitter, electrical fitter or other relevant or equivalent engineering trade.

16.3.2 Casual employees engaged under this Agreement must possess, as a minimum, a Class 3 certificate of competency with a relevant engineering trade qualification.

16.3.3 The Traineeship will be structured so as to enable a Trainee to meet at least the minimum certification requirement of Class 3 with a relevant trade qualification.

16.4 Probation for permanent employees

16.4.1 The successful applicant will be required to serve a three (3) month period of probation.

16.4.2 At the conclusion of the 3 month of period of probation SVITZER will, subject to the satisfactory performance of the employee during the probationary period, confirm the appointment. Where SVITZER considers that the performance of the employee was not satisfactory during the probationary period it may, at its discretion, extend the probationary period for one month.

16.4.3 It the performance of the employee during the initial period or the extended period of probation is deemed unsatisfactory by SVITZER it may terminate the employee’s employment at that time with one week’s notice ( or payment in lieu).

16.4.4 It is agreed that the process set out in this clause is reasonable, and must be agreed to in advance, by any prospective employee.

16.5 Fitness for duty

It is a requirement that employees, once recruited, remain fit for duty. In this respect employees will attend for medical examination as required by SVITZER and at SVITZER’s expense.

16.6 Security clearance for duty

16.6.1 Employees must have security clearance for work in the form of a valid and current Maritime Security Identification Card (MSIC) issued by the relevant government authority.

16.6.2 Where a permanent employee must obtain a MSIC in order to take up an offer of employment by SVITZER, the cost of the issue and the periodic renewal of the MSIC will be met by the Company. Where a MSIC card is lost and there is a valid reason for the loss the Company will meet the cost of replacement for one lost card during the term of this Agreement.

16.6.3 Where a casual employee must obtain a MSIC in order to take up an offer of employment by SVITZER, the cost of the issue will be met by the Company.”

[10] Svitzer contends that the dispute essentially arises from a previous dispute settlement concerning Mr. Woolley in 2010 and this dispute is not about matters arising under the Agreement - especially as the dispute settlement predates the making of the Agreement.

[11] In my view the dispute concerns the location of work of Mr Woolley. It arises in the context of changes in Port Operating Procedures (POPs) in the Port of Melbourne and the recruitment of a part-time engineer at that port. In my view the dispute about the location of Mr. Woolley’s work is a dispute about a matter arising under the agreement, as work location and recruitment of new employees are matters dealt with in the agreement. The 2010 dispute settlement is part of the background of this dispute. I determine therefore that the Commission has jurisdiction to determine this dispute.

The 2010 Dispute Settlement

[12] As part of the resolution of the redeployment dispute in 2010, AIMPE, Mr Woolley and Svitzer agreed to facilitate Mr Woolley’s redeployment to Geelong by way of the following matters:

“i. A Travel Allowance from Mr Woolley’s home to Geelong and return;

ii. The first right of refusal to a permanent full time vacancy in Western Port or the Port of Melbourne whereupon this agreement would terminate;

iii. To the greatest possible extent, filling in of long-term planned absences in Westernport or Melbourne until such permanent full time vacancy in either of these ports was available.”

[13] The agreement to these matters is reflected in an email from then Manager Jonathan Goode to Mr Woolley on 18 January 2010. In relation to item 2, the email expressed the matter as follows:

“2) If Engineering role becomes available MW wants 1st right of refusal for a) Westernport b) Melbourne. Follow-up- JG advised wouldn't have a problem with this, but unsure when this could occur. Could be one year, two years, etc.”

[14] AIMPE contends that the current circumstances satisfy the requirements of item 2 of that agreement and the agreement requires Mr Woolley to be given the first right of refusal to fill the Melbourne vacancy occasioned by the transfer of Mr Anderson to a Svitzer head office role. It submits that the new Melbourne POPs have not been implemented and until they are Svitzer is obliged to recognise the current POP requirement for 10 permanent full time engineers.

[15] Svitzer submits that its obligation under the 2010 Agreement relates to permanent full time vacancies and it does not have and/or does not wish to fill, any such vacancy. It submits that unless it decides to fill a vacancy, the obligation under the 2010 settlement does not arise. It has decided not to fill the vacancy because of the impending implementation of the revised Melbourne POPs and crew rationalisations. Consequent upon those changes the 10 full time permanent engineer positions will reduce to 8. As there are currently 8 full time engineers employed there is no current vacancy. Svitzer submits that the filling of a separate part-time role is not relevant to the 2010 dispute settlement.

Determination

[16] In my view the impending changes to the Melbourne POPs are an essential element of the proper settlement of this dispute. I am not satisfied that there is an obligation to fill vacancies on the basis of the current POPs in circumstances where Svitzer has obtained or is in the course of obtaining agreement to revised procedures resulting in revised crewing arrangements.

[17] There is nothing in the agreement that requires such a strict application. The wording of the agreement appeared to be an indication of intent expressed in an informal manner. Further, Mr Goode, who was called to give evidence by AIMPE, confirmed under cross-examination that the agreement he made on behalf of Svitzer in 2010 did not require Svitzer to fill the vacancy in circumstances where a position was expected to be abolished. To fill the 9th full time engineer’s role when it is about to be abolished would be obviously costly and unsound.

[18] In these circumstances, Svitzer has the right to deploy Mr Woolley to work at his home port of Geelong. Nevertheless the 2010 agreement remains on foot and will apply to the next full time vacancy. In my view the questions posed by the parties should be answered as follows:

1. In light of the provisions of the enterprise agreement and a previous dispute settlement in relation to Mr. Woolley, does Svitzer have the right to direct Mr Woolley to work in Geelong from 3 July 2014 and on an ongoing basis as per the roster determined by the Company? Yes

2. Do any future changes in circumstances affect this situation? Yes, the agreement made in 2010 requires that Mr Woolley be given first right of refusal for the next full time vacancy in Westernport or Melbourne.

VICE PRESIDENT

Appearances:

Mr. N Niven, for The Australian Institute of Marine and Power Engineers.

Mr. B Cross of counsel and Mr A Umansky appeared for Svitzer Australia Pty Ltd.

Hearing details:

2014.

Melbourne.

27 August.

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