Brisbane Container Terminals Ltd T/A Hutchison Ports, Sydney International Container Terminals Pty Ltd T/A Hutchison Ports v Construction, Forestry, Maritime, Mining and Energy Union the Maritime Union of..
[2023] FWC 747
•28 MARCH 2023
| [2023] FWC 747 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Brisbane Container Terminals Ltd T/A Hutchison Ports, Sydney International Container Terminals Pty Ltd T/A Hutchison Ports
v
Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
(C2022/8019)
| DEPUTY PRESIDENT EASTON | SYDNEY, 28 MARCH 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – definite decision to implement automation and/or technology or mode change – interaction with classifications and roles recognised by the Agreement – employer proposes to change how technology is to be used in one area of the operation.
Hutchison Ports Australia (Hutchison) referred a matter in dispute to the Fair Work Commission regarding the introduction of a new classification under the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (Agreement).
The Automated Stacking Crane is a fixed exchange point between:
(a)containers coming on and off vessels and the wharf known as quayside operations; and
(b)truck container delivery and collection known as landside operations.
On the quayside, the ASC completes the lifting and landing process with no intervention by the ASC Operator using the Remote Operating Station, but for exceptions. Remote Operating Station (ROS) and Automatic Stacking Cranes (ASC) are terms that are used synonymously.
On the landside, the ASC completes the majority of the lifting and landing process but the ASC Operator completes the final loading onto the chassis of the truck trailer with the ROS.
The current dispute relates to the decision of Hutchison on 2 November 2022 to introduce an ‘ASC Upgrade’ and deployment of employees in the role of Level 2 ASC Support.
There are at least two elements to the ASC upgrade:
(a)the deployment of workers in the classification ASC Support; and
(b)an upgrade to the ASC software to enable the hardware (the cranes) to be used differently. The different use of the software and hardware will result in fewer ASC operators being required to land the same number of containers onto trucks.
The 2021 Agreement introduced two relevant changes that are the subject of dispute in these proceedings:
(a)the insertion of a new classification/role described as “Level 2 ASC Support”; and
(b)the introduction of a new clause 8 – Technological Change.
The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) argued that clause 8 applies to the ASC Upgrade because the changes are said to be “automation and/or technology or mode change[s]”.
Hutchison argued that clause 8 is not triggered because:
(a)Hutchison is not introducing new technology – the same ASC cranes will be used;
(b)Hutchison is not introducing automation – there will always be some human input required to land containers onto trucks; and
(c)Hutchison is not introducing a new method of work – the only thing that changes is that Hutchison will use its technology landside in the same way that it already uses the same technology quayside.
The parties agreed on the following question is to be determined:
“In the circumstances, does the notification by Hutchison Ports of its intention to implement the role referred to as Level 2 ASC Support at clause 16.12 of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021, and any implementation of any upgrade to the existing Automated Stacking Cranes, invoke Clause 8 (Technological Change)? Yes / No."
I have determined that the answer to the question posed is yes – clause 8 applies to the ASC upgrade.
The introduction of this new classification was the subject of an agreement of some sort during the negotiation and bargaining for the current Agreement. Clause 16.12 of the Agreement specifically refers to the introduction of this classification:
16.12 Employees may be deployed to various roles within the Terminals on a shift-by-shift basis. The Parties recognise that there may be additional roles identified which will need to be discussed between the Parties. The Level rates applicable to each role are as follows:
Level SIA Grade Roles … … … Level 2 Grade 4 Reefer Monitor
Maintenance Storeperson
ASC Operator
ASC Support
Reachstacker Operator
Hutchison now wants to actually deploy employees to this role. The introduction of this new role/classification involves changes to the way in which stacking cranes are used in Sydney and Brisbane ports. New software upgrades, a new computer and perhaps the recalibration of existing lasers go hand in glove with the introduction of the new classification.
Hutchison Evidence
Ms Harriet Mihalopoulos is the Head of Corporate Services and Industrial Relations for Sydney International Container Terminals Pty Ltd (SICTL) and gave evidence for Hutchison.
Ms Mihalopoulos describes the proposed changes by the ASC upgrade as follows:
“From my knowledge of the potential benefits of the upgrade, it will, once implemented:
(a) enhance the existing LMS lasers already installed on the existing ASC's to create a profile and coordinates for the chassis of the motor vehicle or truck that is the intended destination of the container; and
(b) permit the existing lasers installed in the existing ASC's to better determine and assign the final landing position.On the basis of the software upgrade being successfully implemented, this upgrade would permit the more efficient and effective use of the existing machinery. The ASC at each terminal will, by virtue of the upgraded software, be able to move the container to its intended location quicker and more accurately, freeing up the Operator to concentrate on movements that then need to be attended to by way of exception'. The internal upgrade simply streamlines and broadens existing capacities of ASC's at both Terminals.
The existing ASCs operate on both quayside and landside. The existing ASCs on quayside completes the lifting and landing process without the direct involvement of an Operator, except in circumstances of an exception. An "exception" is a situation where the ASC in the process of attempting to move and land a container quayside, detects an unknown profile. Upon detecting the unknown profile, it alerts the Operator who then intervenes and takes control of the ASC via the Operator console and land the container using the ROS.
The ASCs at both Terminals already have this capacity, however, with respect to the landside operations, Hutchison Ports had not replicated the same level of functionality as the quayside. The landside situation was slightly different in that the ultimate destination for the container in a landside movement would include the chassis of a truck trailer. The proposed software upgrade simply allows the landside ASC Operations to operate in an identical fashion to the quayside operations in that the person who has responsibility for the oversight of the ASC Operations would only be required to intervene in a landing process where an exception occurred. The software upgrade simply aligns the functionality of the ASCs that currently operate quayside on the landside.”
Ms Mihalopoulos said that the 2015 Enterprise agreement only made provision for an ASC Operator (Level 2) but did not include the position of ASC Support (Level 2).
Ms Mihalopoulos gave evidence of the bargaining process that led to the making of the Agreement in 2021. She said that from the first meeting of the bargaining representatives in September 2018, Hutchison persistently pressed for discussion about “automation of the ROS”. Minutes of EBA negotiation meetings refer to “technology” and “automation” and the MUA strongly resisting automation.
The MUA’s Evidence
The MUA led evidence from Mr Warren Smith who is the Divisional Deputy National Secretary of the MUA. Mr Smith was appointed as the Deputy National Secretary in 2021 and prior to that was the Assistant National Secretary of the MUA. Mr Smith gave evidence about the bargaining process that led to the making of the Agreement.
It is not necessary to describe Mr Smith’s evidence in detail. “Automation” was a live issue during the bargaining process and the MUA actively campaigned against Hutchison’s proposal to “automate the ROS”. Mr Smith said the following about the insertion of the new clause 8 in the Agreement:
“The only concrete proposal that HPA had made for automation at its ports was the ROS Automation. The MUA’s proposal to include the Technological Change clause resulted solely from the company’s stated intention to fully automate the ROS …removing ROS from the application of the automation clause would entirely negate the purpose of the clause.”
Mr Smith conceded in cross-examination that the inclusion of the ASC Support role would assist the MUA’s concerns about certain functions being “moved into back rooms and taken out of enterprise agreements to remove coverage of the union” when container terminal operators automate.
Consideration – Clause 8
Clause 8.1 is a gateway provision insofar as the other subclauses of clause 8 deal with the consequences of the employer’s decision to implement automation and/or technology or mode change. By the words used in clause 8.1, the whole of the clause applies, where appropriate, when Hutchison has made a definite decision to implement automation or technological change.
If a particular decision in relation to automation, technology or work mode falls within clause 8 then two potentially significant consequences arise: changes cannot be implemented within 12 months of the decision unless agreed (clause 8.2) and no employees can be made redundant as a result of the decision (clause 8.4). These consequences do not affect the interpretation of the words used, they reveal in practical terms what is at stake in the present dispute.
Clause 8.1 requires Hutchison to communicate certain decisions:
“8.1 When the Company has made a definite decision to implement automation and/or technology or mode change, the Company will communicate the decision to the Parties to this Agreement in accordance with Clause 7 of this Agreement.”
Clause 8.2 requires the parties to discuss the implementation of those same certain decisions:
“8.2 The Parties will then immediately commence discussions regarding the implementation of automation and/or technology or mode change. The discussions will commence no later than twelve (12) months in advance of the scheduled go live date. If any form of automation and/or technology or mode change is implemented over a period of less than twelve (12) months, the timeframe of twelve (12) months may be shortened by agreement between the Parties.”
Clause 8.3 deals with the inclusion of new roles, tasks and classifications in the Agreement as a consequence of the decision:
“8.3 The Parties will:
8.3.1 Negotiate in good faith with respect to the application of any roles, tasks and classifications to be included in the Agreement arising out of the implementation of automation and/or technology or mode change.
8.3.2 Refer not agreed matters as to the coverage of the Agreement to the HPA CEO and MUA National Secretary who will make a final decision on nonagreed matters.”
Clauses 8.4 and 8.5 prohibit making any employees redundant “due to the implementation” of the change, and regulates any reduction of hours:
“8.4 No Employee shall be made redundant due to the implementation of automation and/or technology or mode change. This undertaking will apply to Employee numbers at the time of the implementation of automation and/or mode change and will not exceed:
…
8.5 To ensure ongoing work for all existing Employees, hours of work will be reduced for each Employee to such an extent that all Employees shall be sustainably employed on adjusted hours and salaries for those reduced hours of work without reduction of the Ordinary Rates of Pay applicable in Clause 16.6.”
Clauses 8.6 and 8.7 state how the parties intend to meet the requirements of clause 8:
“8.6 Notwithstanding the obligation of Clause 8.4 and Clause 8.5 above, the Parties acknowledge that changes may be needed to address the requirements of the business. To facilitate this process, the Parties shall refer to Clause 40.
8.7 Automation and/or technology or mode change will be implemented in a cooperative and transparent fashion.”
Clause 8.8 affirms Hutchison’s discretion to implement automation and/or technology or mode changes:
“8.8 Nothing in this Clause shall prevent the Company from developing, preparing and/or implementing technological change once a definite decision has been made as long as the processes in this clause have been fully applied and adhered to.”
The ordinary meaning of the words in clause 8.1 are not ambiguous. In fact they are reasonably clear. There was some debate during closing submissions about how the phrase “implement automation and/or technology and/or mode change” could or should be unpacked:
(a)Hutchison argued that these words capture decisions to “implement automation” and/or “implement technology” and/or “implement mode change”;
(b)the MUA argued that the same words capture decisions to “implement automation change” and/or “implement technology change” and/or “implement mode change”.
I accept that the MUA’s construction is broader than Hutchison’s and that it is possible that a particular decision by Hutchison could fall into the middle ground. In this matter it does not make a difference because I am satisfied that the ASC upgrade is either a decision to implement technology (per Hutchison’s interpretation) or a decision to implement technology change (per MUA’s interpretation).
Hutchison argued that clause 8 must be read in conjunction with clause 16. Clause 16 deals with remuneration and covers: annual salaries (16.1 – 16.3), rates for part-time employees (16.4), upgrade payments (16.5), ordinary and supplementary rates of pay (16.6 – 16.9), shift premiums (16.10), secondary rates (16.11), roles to which employees may be deployed (16.12) and allocation to and movement between levels (16.13-16.16).
Hutchison argued that the inclusion of the ASC Support (Level 2) role into clause 16.12 of the 2021 Agreement not only created the possibility that employees could be deployed to the ASC Support role, it was an agreement to introduce any technological changes that might be associated with the new role.
In this context clause 16.12 says the following about deploying employees to roles:
“Employees may be deployed to various roles within the Terminals on a shift-by-shift basis. The Parties recognise that there may be additional roles identified which will need to be discussed between the Parties. The Level rates applicable to each role are as follows:
…”
The ordinary meaning of words in clauses 8 and 16.12 are not ambiguous and do not support Hutchison’s interpretation.
Clause 8 and clause 16.12 address different things - although they overlap to a small degree. Clause 8 focuses on automation, technology and mode changes and the consequences of Hutchison making certain decision about these matters. In this context clause 8 does address possible changes in roles, tasks and classifications (clause 8.3), which could impact clause 16.12 and the number of roles recognised and regulated by the Agreement.
Clause 16.12 merely lists the roles to which employees may be deployed and foreshadows the possible need to discuss new roles during the life of the Agreement.
The inclusion of the ASC Support role in clause 16.12 allows Hutchison to deploy workers in that role, but it does not necessarily follow that the employer is relieved of any obligations it might otherwise have under clause 8 relating to technological change.
By Hutchison’s reasoning, if it decided to introduce wholesale changes in automation or technology that do not require a new role to be inserted in the Agreement, then clause 8 would not apply. Such an interpretation is not available on the words of clause 8 or clause 16.
Mr Smith said that during bargaining for the 2021 Agreement he thought the inclusion of the new classification/role was harmless, and that there was no substance to the position because Hutchison has not clearly described the work or duties an ASC Support would perform. The authorities are clear that Mr Smith’s subjective views are not to be taken into account - or for that matter the subjective views of Ms Mihalopoulos or any bargaining representative.
However there is no evidence that during the bargaining for the 2021 Agreement there was actual agreement between the parties about any changes to work methods or technology associated with this new role.
The surrounding circumstances to the making of the 2021 Agreement do not support the existence of any ambiguity in the terms of the Agreement. Even if there was ambiguity the surrounding circumstances do not establish any common assumptions or any actual agreement during the bargaining process to implement specific automation and/or technology or mode change either via the insertion of a new classification into clause 16.12 or at all.
Consideration - not new technology(?)
Hutchison argued that the ASC “upgrade” is not a change in technology because it is all the same technology that they are already using albeit technology used in a slightly different way. Hutchison also disagrees with the MUA’s characterisation of the proposed changes as “automation” and also disagreed, every time, that the process on landside would then be fully automated.
Hutchison held tightly to the notion that the ASC Support person is still required to deal with exceptions, and also to the fact that the truck driver has some input into the process.
The reality is that under the change proposed by Hutchison, employees would no longer be required to drop each container onto the truck chassis (being work of an ASC Loader) and human involvement at that final stage will be significantly less. The increased reliance on computers and laser guidance will mean that less labour is required.
There was a contest in the proceedings about whether the ASC cranes will be fully automated landside after the ASC Upgrade, or only ‘semi-automated’. In my view it does not matter which label is applied because the ASC Upgrade is a decision to “implement technology” (adopting the Respondent’s test referred to in [29(a)] above) and is a decision to “implement a technology change” (applying the MUA’s test referred to in [29(b)] above).
The Respondent also argued that clause 8 does not apply to the ASC Upgrade because the Respondent is already using the same technology in the same way quayside. As such Hutchison is not proposing to “implement” the technology because the technology is not new and has already been “implemented” at the site.
I don’t accept this argument. Firstly, the ASC Upgrade process is an implementation process – specifically to implement new processes landside that were not previously applied. Secondly, the ASC Upgrade is a significant and contentious change in how technology is to be used landside that, according to the Respondent, is likely to reduce the number of operators required. In this context the substantial change in the use of technology is the “implementation” of the technology in the landside part of the operation regardless of whether other parts of the operation had already implemented the same technology.
I therefore determine that the answer to the agreed question posed is yes: in the circumstances, the notification by Hutchison Ports of its intention to implement the role referred to as Level 2 ASC Support at clause 16.12 of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021, and any implementation of any upgrade to the existing Automated Stacking Cranes, invokes Clause 8 (Technological Change).
DEPUTY PRESIDENT
Appearances:
Mr P Brown for the Applicant
Mr K Bond for the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)
Hearing details:
2023.
Sydney.
January 30, February 21.
Final submissions:
Applicant – 15 February 2023
Respondent – 15 February 2023
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