Construction, Forestry and Maritime Employees Union - the Maritime Union of Australia Division v Svitzer Australia Pty Ltd T/A Svitzer Australia Pty Ltd

[2023] FWC 3428

[2023] FWC 3428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Construction, Forestry and Maritime Employees Union – the Maritime Union of Australia Division
v

Svitzer Australia Pty Ltd T/A Svitzer Australia Pty Ltd

(C2023/7659)

COMMISSIONER RIORDAN SYDNEY, 22 DECEMBER 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

1. The Construction, Forestry and Maritime Employees Union – the Maritime Union of Australia Division (MUA) has notified a dispute concerning the expiration of a fixed term contract for Mr Robert Campbell. I extended Mr Campbell’s contract in matter C2022/8414 (see the decision in [2023] FWC 578) to ensure that Mr Campbell’s contract expired on the same date as the rest of his Leave in Running (LIR) crew on 31 December 2023.

1. The Australian Maritime Officers’ Union (AMOU) and the Australian Institute of Marine and Power Engineers (AIMPE) have joined this matter on the basis that they each have a member whose fixed term contract is also expiring on 31 December 2023 and were the other members of the LIR crew.

1. Clause 1 of the Sydney POPs states:

1. The Dispute Resolution Procedure at clause 10 of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2023 (the Agreement) states:-

“10.5 Continuity of Operations

Pending the completion of the procedure set out in this clause, work shall continue without interruption. No party shall engage in unlawful action and pending the resolution of the dispute the status quo shall apply.  The rights of individuals or parties under the Act shall not be prejudiced by the fact that work has continued under this process normally and without interruption.”

(My emphasis)

1. This provision (as expressed in the 2016 National Towage Enterprise Agreement) was utilised in an Order issued by me in matter C2022/8414 on 22 December 2022 (PR749188), where, in accordance with the status quo, I ordered that Mr Campbell remain employed. On 20 June 2023, as stated above, I ordered that Mr Campbell’s contract be extended until 31 December 2023. Although Svitzer has appealed this decision, it did not seek a stay of the decision. I understand this appeal is currently part heard.

1. Svitzer have argued that this matter is totally different to what occurred 12 months ago. Svitzer has posited that it is simply not extending any of the three fixed term contracts of the LIR crew, nor is it appointing any of them to any permanent full-time position. Svitzer submitted that if the status quo were to be applied, that it be for no useful purpose on the basis that these contracts expire on 31 December 2023. Further, the employees were advised in February 2023 that this scenario was the likely outcome.

1. Svitzer has advised the Commission that it is currently undertaking a review as to how it performs its functions in Sydney with an ambition to create greater flexibility in its workforce in order to maintain its competitive capacity in the Port.

1. Svitzer has advised these three employees of their preparedness to place them into their casual pool in order to “hopefully assist to maintain [their] income levels in the short term, whilst [they] consider alternative employment opportunities…”. Svitzer have also given an undertaking that provides these three employees with “preference” if a decision is taken by Svitzer to employ an additional permanent full-time crew after the roster review.

Conclusion

1. I have taken into account all of the submissions that have been provided by the parties.

1. I am satisfied that Svitzer has undertaken a satisfactory consultation process with the Unions and the employees. Svitzer has decided that, following the required operational review, it no longer wishes to employ the LIR crews. Prima facie, there is nothing in the Sydney POPs which compels Svitzer to continue with the LIR crews after the fixed term contracts have come to their conclusion.

1. Further, I agree with the submissions of Svitzer in relation to the status quo. If Svitzer were attempting to conclude the three fixed term contracts prior to their expiry, then the Unions’ arguments about status quo would be relevant. However, what the Unions are seeking is for the Commission to actually extend the fixed term contacts beyond their normal term. I am satisfied that the Commission does not have the jurisdiction to make such an order when there is no discrimination, unfairness or prejudicial behaviour by Svitzer. I am satisfied that this situation is different to what occurred 12 months ago. These employees have been on notice since February 2023 that their employment would likely conclude on 31 December 2023. Svitzer confirmed this scenario to the employees and the Unions on 27 November 2023.

1. For the reasons stated above, I have decided not to issue the interim orders sought by the Unions.

1. Directions for the substantive hearing of the matter will be issued in the week of 8 January 2024.

COMMISSIONER

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