Construction, Forestry and Maritime Employees Union v Brisbane Container Terminals Pty Limited T/A Hutchison Ports (Brisbane)
[2024] FWC 672
•14 MARCH 2024
| [2024] FWC 672 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry and Maritime Employees Union
v
Brisbane Container Terminals Pty Limited T/A Hutchison Ports (Brisbane)
(C2023/5494)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 14 MARCH 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
This Decision concerns an application made on 12 September 2023 by the Construction, Forestry, Maritime Employees Union (CFMEU/the Union) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the dispute resolution procedure in the Hutchinson Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (the Agreement). The application is made by the CFMEU and relates to Mr Trevor Wallin and Mr Adsett Martin (the Two Nominated Employees). The Respondent is Brisbane Container Terminals Pty Limited T/A Hutchison Ports (Brisbane) (the Respondent or BCT).
Permission to appear
The Respondent sought to be represented before the Commission by a lawyer.
Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act.[1] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[2]
I considered the submissions made by the Respondent on 27 November 2023 on the basis that:
(a) The Respondent had the assistance of Baker & McKenzie Solicitors throughout the history in this matter including at the conciliation conferences and in the preparation of submissions and evidence in the matter;
(b) There was a degree of complexity;
(c) The Applicant was represented by an employee who was a legal practitioner;
(d) allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently;
(e) there would be no unfairness between the parties in consideration of the Applicant having an employed legal practitioner with carriage of the matter; and
(f) the Applicant had no objection to the Respondent being represented by a lawyer.
In consideration of these issues, leave was granted for the Respondent to be represented by a lawyer at the mentions.
The Agreed Questions for determination are as follows:
Question 1In the circumstances of the case, does the Fair Work Commission have jurisdiction to answer the question beyond the two employees that met the pre-condition elements of the dispute?
Question 2 If the answer to 1 is Yes, the articulated questions to be answered are:
(a) Are employees of Brisbane Container Terminals Pty Limited (BCT) rostered to work the five (5) N/IRR shifts between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster?
(b) Are employees of BCT rostered to work until they have worked three (3) N/IRR shifts between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster?
(c) Where an employee of BCT is rostered to work a public holiday between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster and is not required to work on a public holiday or makes themselves unavailable,
i.is normal salary payable, and
ii.is the shift to be counted as a shift worked?
Question 3If the answer to question 1 is No, the articulated questions to be answered are:
(a) Were the nominated employees of BCT rostered to work the five (5) N/IRR shifts between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster?
(b) Were the nominated employees of BCT rostered to work until they have worked three (3) N/IRR shifts between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster?
(c) Where an employee at BCT is rostered to work a public holiday between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster and is not required to work on a public holiday or makes themselves unavailable,
i.is normal salary payable, and
ii.is the shift to be counted as a shift worked?
The Act provides for the Commission to deal with disputes in relation to disputes under enterprise agreement dispute settlement terms. Section 739 of the Act states:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
Procedural History
On 14 September 2023, I issued a direction for the Respondent to file a written response to the dispute as outlined in the Form F10, by 20 September 2023 and listed the matter for conference.
Following the conference on 21 September 2023, the matter was unable to be resolved and I issued directions for the filing of material, including a statement of agreed facts and the questions for determination. I listed the matter for Hearing. The parties had some difficulty in respect of agreeing the questions for determination and following a further mention and a further conference, the questions were agreed, evidence and submissions were filed.
On 9 January 2024, a further mention occurred, and parties were directed to file further submissions/evidence in relation to whether employees were rostered for the relevant period and in respect of more recent case law. The parties were also asked to provide their views as to whether a hearing was required. On 8 February 2024, the parties jointly advised chambers that the determination of the agreed questions occur on the papers.
Background
The relevant Agreement is set out in the first paragraph of this decision.
At all material times, the Agreement covered and applied to the Respondent and the two nominated employees employed to perform stevedoring and maintenance duties at the Port of Brisbane Terminal.
The Applicant asserts that as per clause 29.15 of the Agreement, when a public holiday falls on one of the five night/ irregular shifts (N/IRR) rostered shifts between Monday and Friday in weeks 2 and 6 of the roster cycle and an employee is not required to work or make themselves available, the employee should be paid at their normal salary rate and the shift should be counted as a shift worked.[3]
The Applicant submits further that if a Stevedore employed by the Respondent were to satisfy three of the five N/IRR requirements before the occurrence of a public holiday, the public holiday should be counted as a shift worked and the employee should be credited 12 hours.[4]
The Applicant submitted on behalf of Mr Trevor Wallin that on 2 May 2022 (Labour Day) and 7 April 2023 (Good Friday), the Respondent did not count the 2 May shift as worked and erroneously allocated Mr Wallin to work on 3, 4 and 5 May to satisfy the three of the five N/IRR shifts.[5] The Applicant provided submissions to the Commission to evidence these assertions. Further, the Applicant submitted that on 7 April 2023, the Respondent had been allocated to work on 3 and 6 April and had his shifts on 4 and 5 April removed.[6] The Applicant asserted that Mr Wallin made himself unavailable and was not compelled to work on 7 April 2023.[7] Consequently, the Respondent erroneously claimed that Mr Wallin had not satisfied the three of the five N/IRR as required under the Agreement and subsequently did not count the shift as a shift worked under the Agreement.[8]
The Applicant submitted on behalf of Mr Adsett Martin, that on 16 August 2023 (Royal Queensland Show Day), Mr Martin did not make himself available and subsequently had his shift cancelled by the Respondent.[9] The Applicant submitted that Mr Martin was allocated to work on 14 and 15 August 2023. The Applicant submitted further that the 16 August shift was not counted as a shift worked and that the Respondent erroneously allocated Mr Martin to work on 17 August 2023 to satisfy the three of five N/IRR requirements under the Agreement.[10]
The Applicant seeks a determination from the Commission as to whether the Commission has jurisdiction under the dispute resolution clause under the Agreement to determine the dispute, and whether if so, what outcomes are there to remedy the dispute that has arisen under clause 29.16 of the Agreement regarding the two nominated employees above.
Relevant Provisions of the Agreement
Clause 14 of the Agreement states:
14. ISSUE RESOLUTION
14.1In the event of a dispute arising in the workplace in regard to the application of this Agreement, the NES, or any matter pertaining to the employment relationship the procedure to be followed to resolve the matter shall be as follows:
Step 1 Workplace Discussions
14.2 The Parties shall attempt to resolve the matter at the workplace level within seven (7) days by:
14.2.1An Employee, the nominated Employee Representative/Union Delegate (if requested), and their Manager meeting and conferring on the matter; and
14.2.2If the matter is not resolved the matter will be raised at senior levels of management, Employee Representatives and Union Officials (as appropriate).
Step 2 National Level Discussions
14.3 If the matter cannot be resolved at workplace level, the matter may be referred by either party to National Level for discussion between the Parties.
Step 3 Fair Work Commission (FWC)
14.4If the matter cannot be resolved at National Level, either Party may refer the matter to the FWC. The FWC may deal with the dispute in 2 stages:
14.4.1The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
14.4.2If the FWC is unable to resolve the dispute at the first stage, the FWC may then arbitrate the dispute.
14.5Any resultant decision or determination by the FWC under this Clause shall be binding and accepted by the Parties, subject to their rights under the Act.
14.6If the FWC arbitrates the dispute:
14.6.1 It may also use the powers that are available to it under the Act, and
14.6.2 An appeal may be made against the decision.
14.7Either Party may refer the dispute to FWC at any stage of the procedure if the procedure is not being followed or is otherwise inappropriate in the circumstances.
14.8While the Parties are trying to resolve the dispute using the procedures in this term:
14.8.1work will continue under the conditions and arrangements that existed before the dispute arose; and
14.8.2there will be no stoppage of work, or other industrial action, by Employees unless the Company directs any Employee to perform work that is not safe; or
14.8.3applicable workplace health and safety legislation would not permit to be performed; or
14.8.4there are other reasonable grounds for the Employee to refuse to comply with the direction. (Subject to the immediate notification to the most senior Operations or Engineering Manager or the Company appointed proxy) of a stoppage of work by the Union or the Employee/s
14.9The Parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible.
Clause 26.1 of the Agreement states:
26.1The Company will at all times be able to roster and allocate any Employee individually in a flexible manner in accordance with the arrangements in this Agreement.
Clause 26.4 and 26.5 of the Agreement states:
26.4Employees shall be responsible for ascertaining when they are next required for work. The Company will provide a facility for that to occur, which will include SMS and/or other electronic advice.
26.5For BCT, notification of work requirements for the following day will be available before 1500 Monday to Friday. Notification of work requirements for weekend shifts (commencing with day shift Saturday, through to first shift Monday (night shift) will be available before 1500 on Friday. Where a Public Holiday falls on a Friday or Monday, allocation for the long weekend will be done on the day prior to long weekend, consistent with the above. Where a public holiday falls on another weekday, allocation will include the day after the holiday as well as the holiday.
Clause 29 of the Agreement states:
29. PUBLIC HOLIDAYS
29.1The following public holidays will be deemed to be voluntary public holidays:
29.1.1Good Friday
29.1.2Anzac Day
29.1.3Labour Day
29.1.4Picnic Day
29.2Nothing prevents any Employee from declining or volunteering to work on these voluntary public holidays, providing that Employees can be compelled to work where insufficient Employees with the necessary skills volunteer to the extent required to over ship working requirements on that day.
29.3Employees shall be deemed to be available to work voluntary public holidays unless they make application to be off.
29.4On Christmas Eve and Christmas Day the Company will not conduct Operations between the end of day shift on Christmas Eve and the commencement of day shift on Boxing Day.
29.5An Employee may however be required to work during this period in the case of marine casualties and reefer monitoring.
29.6The option to be free from duty for Permanent Part Time Employees shall not constitute a counted shift within rostering arrangements.
29.7Permanent Part Time Employees or Supplementary Employees rostered to a shift on 31 December may be allocated to day shift that day if required by the Company, to perform work on that shift.
29.8The following public holidays will not be deemed voluntary. Nothing prevents any Employee from declining or volunteering to work on these public holidays providing that Employees can be compelled to work where insufficient Employees with the necessary skills to volunteer to the extent required to cover ship working requirements on that day:
29.8.1 New Year’s Day
29.8.2 Australia Day
29.8.3 Easter Saturday
29.8.4 Easter Sunday
29.8.5 Easter Monday
29.8.6 Queen’s Birthday
29.8.7 Royal Show Day (Brisbane)
29.8.8 Christmas Eve from 1800 (Brisbane)
29.8.9 Boxing Day
29.9Employees may be required to work on those days in accordance with Clause 29.8.
29.10In any site where an additional holiday is gazetted beyond the above listed Public Holidays, Employees may be required to work on that day.
29.11Where the relevant State government gazettes a substitute Public Holiday, the voluntary day or public holiday arrangements will apply on the substitute day, unless otherwise agreed at a local level. The only exceptions to this are Anzac Day, in which case the holiday will be observed on 25 April, and Christmas Day where an Employee is required to work in accordance with Sub-Clause 29.8, in which case Employees required to work will be paid the voluntary holiday rate on Christmas Day and not on the substitute or alternative holiday.
29.12Employees who work on a Public Holidays shall be paid at the Award public holiday rates of pay.
29.13Operations Employees who work on a voluntary public holiday shall also be entitled to a day in lieu.
29.14Maintenance Employees will accrue a day (Time Off in Lieu) in respect of any shift worked on a public holiday (or thereof).
29.15Where an Employee is rostered to work a Public Holiday and is not required to work on a Public Holiday or makes themselves unavailable (voluntary Public Holiday or otherwise), they shall be paid their normal salary and the shift shall be counted as a shift worked.
29.16Where a public holiday falls during an Employee’s period of annual leave, the Employee shall receive a day in lieu for the public holiday.
Emphasis added…
Part B: Schedule 6- BCT Operations Rosters, clause 1 states:
1. BCT OPERATIONS
1.1The rostering and allocation requirements detailed in this Schedule will apply in addition to the provisions of Clause 26 (Allocation and Working Arrangements), subject to skills.
1.2BCT PERMANENT FIXED ROSTER (PFR) (30 HOURS WEEKLY AVERAGE)
1.3The Annual Salaries – BCT PERMANENT FIXED ROSTER
Part B: Schedule 6- BCT Operations Rosters clause 3.2 states:
3.2Employees must work three (3) of the five (5) N/IRR rostered shifts between Monday to Friday in weeks 2 and 6 of the roster cycle. Any of the three (3) of the five (5) N/IRR rostered shifts Monday to Friday not worked will be regarded as Cancellations to the value of twelve (12) hours each shift, in accordance with the provisions in this Schedule.
Part B: Schedule 6- BCT Operations Rosters clause 3.4 states:
3.4Employees will be required to work in accordance with their roster. Employees will be allocated to the indicative shifts on the roster where work is available on those shifts. When an Employee is rostered to work and no work is available the Employee will be debited with the cancelled shift at the equivalent ordinary time hours as outlined in Clause 5.2 of this Schedule. The Company will notify the Employee of the cancelled shift in accordance with normal allocation process detailed in Clause 26 (Allocation and Working Arrangements).
Applicant’s Submissions
The Applicant submitted that it seeks on behalf of the nominated employees, a determination by the Commission of the Agreed Questions.
Jurisdiction
The Applicant submitted that the nature and extent of the arbitral jurisdiction of the Commission cannot extend beyond the scope of the dispute that is the subject of clause 14 of the Agreement.[11] The Applicant stated that in the alternative, the nature and extent of the disputes that the Commission can resolve depends upon the agreement of the parties to be bound by the determination of the Commission.[12] The Applicant submitted further that the Commission cannot accept private arbitral appointments outside the ambit of the statute.[13]
The Applicant submitted that the arbitral power conferred on the Commission by clause 14 of the Agreement is broad and that is remains undisputed between the parties that the scope of the dispute effects a significant number of employees, being permanent full time rostered employees employed under the terms of the 2021 Agreement.[14] The Applicant submitted further that this remained true throughout the entirety of the three-step dispute resolution procedure.[15]
The Applicant contended that it considers the scope of the dispute and the Commission’s powers to determine the dispute, should cover full time rostered employees of the Respondent, and not merely employees who individually met the pre-condition elements of clause 14 of the Agreement. The Applicant asserted that the Respondent has acknowledged this position on more than one occasion.[16]
Industrial context and purpose
The Applicant submitted that when clause 14 of the Agreement is read in an industrial context, its proper intended construction should not limit the jurisdiction of the Commission’s arbitral power to answer questions only on employees that have individually met the pre-conditions in clause 14 of the Agreement. In doing so, it strips it of its industrial utility.[17]
The Applicant contended that there has been substantial compliance with clause 14 of the Agreement. It asserted that the pre-conditions have been satisfied such that the Commission can deal with the dispute that arose under the Agreement and that extends beyond the employees that individually met the pre-condition elements of clause 14.[18]
The Applicant submitted that to interpret the construction of clause 14 as limiting the jurisdiction of the Commissions arbitral power address questions only on employees that have individually met the pre-conditions in clause 14 of the Agreement ignores its intended purpose.[19]
The Applicant, in their submissions on jurisdiction, addressed the powers of the Commission. It contended that whilst the Commission is conferred jurisdiction to make a determination on a dispute under clause 14 of the Agreement, it does not have declaratory power or power to enforce the orders that it makes.[20] The Applicant stated further that when seeking a determination by the Commission, parties are not required to identify individual employees and each of their personal circumstances giving rise to a dispute in order for the Commission to make its determination.[21]
Dispute under clause 29 of the Agreement
The Applicant made further submission in relation to clause 29 of the Agreement. These submissions addressed the public holiday benefit in weeks 2 and 6 of the PFR (Permanent Fixed Roster).
The Applicant stated that under clause 29.15 of the Agreement, employees that are rostered to work a public holiday and are not required to work the public holiday (or make themselves unavailable and is not compelled) are paid their normal salary and the shift is counted as a shift worked.[22] Further, under Part B schedule 6, clause 3.2, the five N/IRR shifts between Monday to Friday in weeks 2 and 6 of the PFR are considered as rostered shifts.[23] The Applicant submitted that in the alternative, by Part B: Schedule 6 subclause 3.2, the N/IRR shifts between Monday to Friday in weeks 2 and 6 of the PFR are rostered shifts until the employee has worked their three required shifts.[24]
The Applicant contends that the words “rostered to work” in clause 29.15 and “rostered shifts” in Part B Schedule 6 clause 3.2 of the Agreement are clear, unambiguous, and not susceptible to more than one meaning.[25] As per the Agreement, a permanent full time rostered employee is rostered to work all five N/IRR shifts in weeks 2 and 6 of the PFR. If an employee is not required to work a public holiday (or makes themselves unavailable and is not compelled) which falls on any shift Monday to Friday in weeks 2 and 6 of the PFR, the employee ought to be paid their normal salary and the shift counted as a shift work.[26]
The Applicant submitted that in the alternative, a permanent full time rostered employee is rostered to work the N/IRR shifts between Monday to Friday in weeks 2 and 6 of the PFR, until the employee has worked their three required shifts. If an employee is not required to work a public holiday (or makes themselves unavailable and is not compelled) which falls on any shift Monday to Friday in weeks 2 and 6 of the PFR prior to the employee working their three required shifts, the employee ought to be paid their normal salary and the shift counted as a shift work.
Having regard to the allocation of shifts under the PFR, the Applicant submitted that each eight-week roster cycle is to be viewed as a whole, in the context of the wording contained in Part B: Schedule 6 sub -clause 3.1 of the Agreement.[27] The Applicant contended that it is clear that the five N/IRR shifts in weeks 2 and 6 of the PFR are rostered shifts for the purposes of it’s intended meaning under clause 29.15 of the Agreement.[28] The Applicant asserted that the employees must remain ready, willing and able to be allocated wok day, evening or night shifts, often on short notice.[29]
The Applicant submitted that it is common practice that the Respondent pay a full time permanent employee their normal salary and the shift is counted as a shift worked, even where they are not required to work on a public holiday (or to make themselves unavailable and is not compelled) in either of the Day shifts in weeks (1 and 5), or the night shifts (weeks 3 and 7) of the PRF.[30] The Applicant therefore contended that it supports the construction of the Agreement contended for above by the Applicant, as employees must remain ready, willing and able to be allocated work in the weeks 2 and 6 of the PFR in the same manner as stipulate above relating to weeks 1,3,5 and 7 of the Agreement.[31]
Payment for Public Holidays – Evidence of Surrounding Circumstances
The Applicant contended that if the Commission forms the view that the clauses regarding the public holiday benefit in weeks 2 and 6 of the PFR are too ambiguous for the purpose of it’s application to the nominated employees, and all other employees, regard should be given to the negotiations to the Agreement.[32]
The Applicant made reference to the original roster claimed by the MUA considered in the negotiations for the Agreements, whereby Monday to Friday in weeks 2 and 6 of the original roster consisted of three fixed night shifts.[33] The Applicant contended that in the negotiations for the Agreement, the parties moved away from the three-night fixed shifts to the N/IRR.[34] The Applicant alleged that this was done to assist the Respondent with the flexibility it claimed it required to adjust to changing shipping schedules when necessary.[35]
The Applicant contended that in the negotiations for the Agreement it was not considered or discussed further that the public holiday benefit in clause 29.15 of the Agreement would be applied differently to the N/IRR rostered shift weeks, compared with whether it applied on either the Day or Night shift rostered weeks.[36] The Applicant asserted that its comments regarding the negotiations are open to the shared knowledge of the relevant parties and that as such, support the construction contended for by the Applicant.[37]
Witness Statement of Aaron Johnston
The Applicant provided a witness statement by Aaron Johnston. Mr Johnston is the Divisional Deputy Queensland Branch Secretary of the Maritime Union of Australia Division (MUA) of the Union.[38]
Mr Johnston provided submissions as to the dispute resolution procedure under the Agreement as well as the rostering practises of the Respondent, specifically in relation to public holidays and entitlements under the Agreement.
Mr Johnston asserted that the elected representative committee (ERC) within the Respondent meet regularly and host six monthly review meetings to discuss disputes that may arise under the application of the relevant Agreement.[39] Mr Johnston submitted that the ERC has raised the dispute concerning the public holiday benefit in weeks 2 and 6 of the PFR on numerous occasions.[40] In the meeting on 24 March 2022 and as evidenced by the minutes dates 24 March 2022, which were provided to the Commission, that it was discussed that “public holidays should be paid during night irregular weeks as all shifts Mon-fi are rostered shifts.”[41]
Mr Johnston stated that further to the discussions in the ERC meeting on 24 March 2022, he sent an email to the Operations Manager with Respondent, enquiring as to whether a decision to not count a public holiday that falls in weeks 2 and 6 of the PFR roster as a shift worked where they are not required to work had been made.[42] The Operations Manager replied on 1 August 2023, inviting him to escalate the matter further.[43] This email was submitted as evidence to the Commission in these proceedings.
Mr Johnston submitted that on 21 June 2023, the MUA Divisional Deputy National Secretary, Mr Warren Smith and Mr Oliver discussed the dispute at the Federal Court of Australia in Brisbane in the context of a separate dispute between the parties.[44] Mr Johnston did not submit anything further in relation to the outcome of these discussions.
In regard to the PFR as allocated by the Respondent, Mr Johnston submitted that it is well known to the MUA and the Respondent that where a permanent full time rostered employee is not required to work a public holiday (or makes themselves unavailable) which falls in either of the Day or Evening shift rostered weeks, BCT pays the employee their normal salary and that the shift is considered as worked.[45]
Mr Johnston contended that the Respondent takes a different approach to the allocation of rostered N/IRR shifts during the weeks on 2 and 6 in the PFR rotation.[46] Mr Johnston submitted that the Respondent does not count the shift as worked where the N/IRR shift falls within weeks 2 and 6 of the PFR.[47]
Witness Statement of Diego Flaksbard
The Applicant provided a witness statement by Mr Diego Flaksbard. Mr Flaksbard is employed by the Respondent as a stevedore as a permanent full time rostered employee.[48]
Mr Flaksbard provided submissions regarding the PFR under the 2021 Agreement. Relevantly, Mr Flaksbard was a bargaining representative in negotiations for the 2021 Agreement.[49]
Mr Flaksbard contended in his statement that negotiations for the 2021 Agreement continued over the course of three years, beginning on 26 September 2018. Mr Flaksbard submitted that ‘ the Applicant’s original preference was that the public holiday clause under at 29.15 of the Agreement would have been applied to the fixed night shifts in week 2 and 6 of the roster the same way that it applied to a rostered Day shift or Night shift.[50] Mr Flaksbard submitted that the Respondent contested this position as they claimed it required more flexibility with regard to the continuously changing vessel schedule that occurred each week.[51]
Mr Flaksbard submitted that after concern was expressed by both parties regarding this point of contention relation to clause 29.15 of the Agreement, the change, amended to satisfy the position of the Respondent, in practise resulted in adding a requirement for employees to be available for allocation 24 hours per day Monday to Friday in weeks 2 and 6 of the roster instead of the original three fixed night shifts.[52]
Mr Flaksbard asserts that it was never discussed during the negotiations for the Agreement, that the public holiday benefit in clause 29.15 would be applied differently, irrespective of whether the shift was a N/IFF shift in either of the Day or Evening shifts.[53]
Respondent’s Submissions
The Respondent made submissions on both issues raised, jurisdiction and construction of the Agreement under clause 14 and the application of clause 29 in the given circumstances.
In response to the Application, the Responded contends that the Application has been framed by the Applicant to seek the interpretation and enforcement of the Agreement beyond the two employees. The Respondent asserts that the Commission does not hold jurisdiction to determine the matter beyond the circumstances of the two employees.[54]
The Respondent submits in the alternative, that the Applicant has misconceived the correct interpretation of the Agreement in this matter.[55]
The Respondent contends that:
a)Clause 3.2 of Part B: Schedule 6 – BCT Operations Rosters provides (inter alia) that “Employees must work three (3) of the five (5) N/IRR [Night/Irregular Shift] rostered shifts between Monday to Friday in weeks 2 and 6 of the roster cycle.”;
b)The BCT Permanent Roster (Clause 1.2 of Part B: Schedule 6 – BCT Operations Rosters) is an indicative roster only. Clause 3.4 provides (inter alia) that “Employees will be allocated to the indicative shifts on the roster where work is available on those shifts.”;
c)Employees are allocated to work no more than three of the five possible N/IRR shifts during weeks 2 and 6 of the BCT Permanent Roster; and
d)Only the (up to) three shifts that employees are allocated to work during weeks 2 and 6 of the BCT Permanent Roster are regarded as “rostered shifts” (including for the purposes of clause 29.15 of the Industrial Instrument regarding Public Holidays). [56]
The Respondent submitted, that in the context of the submission above in [33], the two nominated employees were not allocated to work on the public holidays as alleged in the Application and therefore were not entitled to the compensation a per clause 29 of the Agreement.[57]
Jurisdiction
The Respondent submitted that the questions bought forward by the Applicant, and subsequently agreed upon by both parties in the conciliation conferences were to be framed in the alternative, with reference to whether the Commission has jurisdiction, in the given circumstances, to determine the questions beyond the two named employees.[58]
The Respondent contended that the Commission does not have jurisdiction as set out in Question 1 of the Agreed Questions, and therefore should instead of answering Question 2, should answer Question 3. The Respondent submitted that the basis for this is that the proper characterisation of the dispute relates only to the circumstances of the two named employees.[59] The Respondent submitted further that the only facts and circumstances that have progressed within the steps set out at clauses 14.2 and 14.3 of the Agreement relate only to the nominated employees and that the three allegations made in this Application are directly associated with these employees only.[60]
The Respondent asserted that the personal circumstances of the two nominated employees on the three occasions, requires consideration.[61] The Respondent submitted that, as a matter of jurisdiction, the Applicant is not permitted to move beyond the dispute, as framed in the application, in circumstances where the requisite steps provided for under the Agreement were applied to the nominated employees ‘circumstances’.[62] Rather, the Respondent contended that the correct approach to arbitration should be contrasted with attempts to have arbitrated broader contentions as to the meaning of nominated clauses of the Agreement as advocated by the Applicant.[63]
The Respondent submitted that the personal circumstances of the nominated employees were considered by the parties and were what framed the scope of the dispute and relevantly, the Agreed Questions. The Respondent cited Quantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 (Qantas No 2) as authority to support its position that the scope of the dispute is fixed by the personal circumstances as addressed by the parties in applying the two-step process as set out under the Agreement.[64] The Respondent contends that whilst a degree of flexibility can be applied, as per Justice Flick in Qantas No 2, flexibility should not and would not permit the subject matter of arbitration to involve the seeking of a declaration regarding the rights prescribed under the Agreement.[65]
The Respondent contended that Question 2 of the questions set out in [8] above are an application for a declaration in disguise by the Applicant.[66] The Respondent submitted that the correct characterisation of the dispute, including its scope and the relief sought, are appropriately addressed in the comments made by President Ross in Kara Le v Virgin Australia Airlines Pty Ltd[2002] FWC 269.
Construction of the Agreement
The Respondent contended that the Commission is required to consider the ordinary meaning of the relevant clauses in the Agreement, being clauses 29.15 and 26.5, when addressing the questions above in [2]. The Respondent asserted that the Commission in the first instance, ought to analyse the various provisions of the Agreement which deal with payment for public holidays.[67]
The Respondent asserted that for an employee of the Respondent at the Port of Brisbane Terminal to be entitled to payment of their “normal salary” on the day of a public holiday and the shift to be counted as a shift worked, in accordance with clause 29.15, the requirement is that they were rostered to work by the Respondent on that particular day.[68] The Respondent submitted that in each case and each day as claimed by the Nominated Employees, that the Nominated Employees were “not rostered to work” on the public holidays identified in the Application.[69] These dates are mentioned above in [8] and [9]. It is on this basis that the Respondent contended that the nominated employees had no entitlement to benefit from clause 29.15 under the Agreement.
The Respondent made further submissions addressing the determination of the questions in [2], particularly when considered in the context of Part B Schedule 6 of the Agreement which relates to “BCT Operations Rosters”. The Respondent drew comparison between Clause 26 of the Agreement as set out above in [5] and subclause 1.1 of Part B Schedule 6, which reads:
1.1The rostering and allocation requirements detailed in this Schedule will apply in addition to the provisions of Clause 26 (Allocation and Working Arrangements), subject to skills.
The Respondent submitted that the rostering and allocation of employees at the Port of Brisbane Terminal to work is encompassed under clause 26.5 of the Agreement and the permanent fixed roster (PFR) applicable to the Port of Brisbane Terminal appears at subclause 1.2 Part B Schedule 6 of the Agreement.
The Respondent explained that the rules associated with the PFR operative at the Port of Brisbane Terminal contain various acronyms as evidenced in the table above. Relevantly, weeks 2 and 6, in the PFR make reference to the acronym “N/IRR”, which is defined as:
“Night/Irregular Shift (N/IRR) are shifts that the Company may allocate the Employee to Day , Evening or Night shift.”[70]
The Respondent submitted that weeks two and six are referred to within the company as the “irregular weeks.”[71]
The Respondent submitted further that the dispute focuses on the nominated employees who refer to the entitlements on weeks two and six of their fixed Roster. The Respondent states that these “irregular weeks” in the rosters are unique.[72] As per Part B Schedule 6 subclause 3.2, any employee of the Respondent operating within the two irregular weeks are only required to work a maximum of three of the five weekdays.[73]
The Respondent stated that specifically Part B Schedule 6 – BCT Operations Roster, clearly states that “employees will be required to work in accordance with their rosters” in circumstances where clause 26.1 permits the Respondent to do so.[74] Thus, the Agreement addresses any in discrepancy relating to the roster cycle, specifically having regard to the fact that within the irregular weeks “two” and “six” of the roster cycle, employees may not be rostered and allocated on two out of the five day working week.
The Respondent contends that it is apparent from the ordinary meaning of the Agreement, in particular reference to weeks 2 and 6 of the PFR that;
a)Weeks 2 and 6 of the PFR are only weeks in the PFR that make reference to “night / irregular shifts”;
b)These night / irregular shifts are shifts that BCT may allocate the employee to work including day, evening or night shift;
c)To the extend that BCT wishes to roster and allocate the employee to work in weeks two and six, the EA states that the employee must work three of the five days (Monday to Friday); and
d)There will be two weekdays within weeks “two” and “six” where the employee is not rostered ad not allocated by BCT to work.[75]
Rostering Practices of BCT at Port of Brisbane Terminal
The Respondent submitted that the Permanent Fixed Roster for the company does contain a level of flexibility as necessary to account for the actual or anticipate demand of stevedoring services. The Respondent contends that this level of flexibility is consistent with subclause 3.4 of Part B Schedule 6 which states: [76]
“Employees will be required to work in accordance with their roster. Employees will be allocated to the indicative shifts on the roster where work is available on those shifts”.
The Respondent asserted that the quantity of work fluctuates with reference to the anticipated arrival and departure of vessels from the Port of Brisbane Terminal.[77] The Respondent alleges that these dates and times can change without notice in weeks 2 and 6 in line with berthing schedules such that employees are only allocated (and rostered) on days when vessels are arriving or departing from the Port of Brisbane Terminal.[78]
The Respondent asserted that it is the practice of Brisbane Container Terminals Pty Ltd on the irregular weeks 2 and 6 of the PFR to roster and to allocate the three days within the week Monday to Friday to work shifts in advance.[79] Thus, consistent with Rule 3.2 under Part B Schedule 6 of the Agreement, there are two days of the week (Monday to Friday) within the irregular weeks 2 and 6 where the stevedore is not allocated and not rostered to work (unallocated weekdays).[80] Therefore, Respondent submitted that where the unallocated weekdays coincide with a public holiday in the state of Queensland, the stevedore is not:
a)Rostered to work on the public holiday; and
b)Required to work on the public holiday.
and therefore, accordingly, on the weekdays which employees are unallocated during weeks 2 and 6, “the shift not counted as a shift worked[81] as prescribed by subclause 29.15 of the Agreement.[82]
The Respondent contended that was their position that each nominated employee for each public holiday claimed was not rostered and allocated to work on the shift that was the public holiday in each instance.[83]
Witness Statement of Anthony Oliver
The Respondent provided a witness statement from Mr Anthony Oliver who is employed by the Respondent in the role of National Manager – Human Resources & Industrial Relations, based at the Port of Brisbane.[84]
Mr Oliver provided submissions in response to Mr Flaksbard and Mr Johnstons statements as provided by the Applicant.
In response to Mr Flaksbard’s statement, Mr Oliver submitted, substantively, that contrary to Mr Flaksbard’s comments, there was no agreement of the parties to the effect that a “change was to add a requirement for employees to be available for allocation24 hours per day Monday to Friday in weeks 2 and 6 of the roster instead of the original 3 fixed night shifts.”[85]
In response to Mr Johnston’s statement, Mr Oliver submitted that he is familiar with practices of the Respondent with respect to the rostering of employees at the Port of Brisbane Terminal in accordance with the PFR as set out in Part B Schedule 6 of the Agreement, Mr Oliver submitted the further observations addressing the points put forward by Mr Johnston.[86]
Mr Oliver submitted that the Respondent does not roster employed stevedores in weeks 2 and 6 of their fixed roster more than three of the five days of the week.[87] Mr Oliver stated that when rostering a member for three days only during the irregular work weeks, there are two days that are not considered as “rostered shifts”.[88] Mr Oliver submitted further that of the two days of the week that the member is not rostered, there is a possibility that one of the un rostered days may be a public holiday and that to obtain the benefit under clause 29.15 of the Agreement, the employee must be rostered to work on a public holiday.[89]
Mr Oliver submitted that on 2 May 2022 and 7 April 2023, Mr Wallin was not rostered and allocated to work on either of the public holidays. Mr Oliver submitted further that Mr Martin was not rostered and allocated to work on the public holiday that occurred in Brisbane on 16 August 2023.[90] Mr Oliver concluded that in each case, neither of the nominated employees are entitled for the public holiday benefit as contained under clause 29.15 of the Agreement.[91]
Agreed Facts for the purposes of these proceedings.
The parties filed the following Agreed Statement of Facts:
“The Applicant Union is a party to an industrial instrument by the name of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (the EA).
1. The Respondent employs persons under the terms and conditions of the EA at the Port of Brisbane Terminal (the Terminal).
2. Mr Trevor Wallin is employed by BCT at the Terminal as a Stevedore under the terms and conditions of the EA.
3. Mr Adsett Martin is employed by BCT at the Terminal as a Stevedore under the terms and conditions of the EA.
4. Monday, 2 May 2022 was a public holiday in the state of Queensland (Labour Day).
5. Friday, 7 April 2023 was a public holiday (Good Friday).
6. Wednesday, 16 August 2023 was a public holiday in the state of Queensland (Royal Queensland Show).
7. Both Mr Martin and Mr Wallin performed work as a Stevedore pursuant to a fixed roster which appears at Part B: Schedule 6 BCT Operations Rosters, Subclause 1.2 of the EA (Permanent Fixed Roster).
8. With respect to each of the above public holidays, each public holiday fell within either week 2 or week 6 of the Permanent Fixed Roster.
9. Under the EA, a permanent full time rostered employee that is not required to work a public holiday (or makes themselves unavailable) which falls in either of the Day (weeks 1 & 5) or Evening (weeks 3 & 7) shift weeks of the Permanent Fixed Roster is paid their normal salary and the shift is counted as a shift worked.”
10. The Applicant contends that:
(a)Mr Wallin was rostered to work on the 2 May 2022 public holiday in Brisbane.
(b)Mr Wallin was rostered to work on the 7 April 2023 public holiday.
(c)Mr Martin was rostered to work on the 16 August 2023 Public Holiday in Brisbane.
11. The Respondent contends that:
(a)Mr Wallin was not rostered and allocated to work on the 2 May 2022 public holiday in Brisbane.
(b)Mr Wallin was not rostered and allocated to work on the 7 April 2023 public holiday.
(c)Mr Martin was not rostered and allocated to work on the 16 August 2023 public holiday in Brisbane.[92]
Issue Resolution Process
It is uncontested that the Issue Resolution[93] procedure has been followed in respect of the specific incidents raised in the agreed questions 2 and 3, in the circumstances outlined for Mr Wallin and Mr Martin and that the Commission’s private arbitral power has been enlivened in accordance with that procedure.[94]
Principles Relevant to the Interpretation of an Enterprise Agreement
The principles were conveniently summarised in the Full Bench decision of Berri[95] which I will set out here for completeness:
“1.The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i)the text of the agreement viewed as a whole;
(ii)the disputed provision’s place and arrangement in the agreement;
(iii)the legislative context under which the agreement was made and in which it operates.
The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10.If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
11.The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12.Evidence of objective background facts will include:
(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii)notorious facts of which knowledge is to be presumed; and
(iii)evidence of matters in common contemplation and constituting a common assumption.
13.The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14.Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15.In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”[96]
Consideration
Question 1 In the circumstances of the case, does the Fair Work Commission have jurisdiction to answer the question beyond the two employees that met the pre-condition elements of the dispute?
The Full Bench provided a helpful summary of the Commission’s arbitral functions in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Rio Tinto Aluminium Limited T/A Rio Tinto.[97] In respect of the case law in Kara Le v Virgin Australia Airlines Pty Ltd (Virgin)[98] it is distinguishable from the present matter. The Virgin matter related to several s.365 applications being dealt with by the Commission. What is relevant is that the specific circumstances of the dispute need to be considered in forming a view as to whether the Commission can answer a question beyond the employees that meet the pre-condition elements of a dispute. In the present case, as the Respondent noted, the Applicant’s F10, includes considerable detail about the particular circumstances of the dispute as they pertain to Mr Wallin and Mr Martin.[99]
Given the preconditions have been met specifically in respect of the circumstances of Mr Wallin and Mr Martin and having regard for the authorities referenced, the Commission cannot answer the question beyond those two employees because the circumstances of another employee may differ such that the Commission may self-evidently conclude the questions differently. However, I note that given the manner in which the Agreed Questions have been set out, the answers to Question 3 might provide some guidance to the parties.
Question 3(a) “Were the nominated employees of BCT rostered to work the five (5) N/IRR shifts between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster?
I reject the proposition that “rostered” and “allocated” are synonymous terms. For clarity Clause 3.4[100] says:
“Employees will be required to work in accordance with their roster. Employees will
be allocated to the indicative shifts on the roster where work is available on those
shifts. When an Employee is rostered to work and no work is available the Employee
will be debited with the cancelled shift at the equivalent ordinary time hours as
outlined in Clause 5.2 of this Schedule. The Company will notify the Employee of the
cancelled shift in accordance with normal allocation process detailed in Clause 26(Allocation and Working Arrangements).”[101] Emphasis added
The first and second sentences of clause 3.4[102] demonstrate the difference between being rostered and having a shift allocated. Clauses 26.4 and 26.5[103] sets out in more detail how the notification of the allocation occurs. The plain meaning of those sentences is that there is a roster of when employees are required to be available to work and then there is a point in time in which they are allocated up to 3 shifts, where work is available, in that roster.
Further the relevant schedule in its heading plainly says “BCT Operations Rosters” and the table demonstrating the 8-week cycle is also headed plainly “BCT Permanent Fixed Roster (PFR)”[104] and it sets out Monday to Friday as part of that Roster for weeks 2 and 6. Therefore, an employee is rostered for those 5 shifts.
Question 3(b) Were the nominated employees of BCT rostered to work until they have worked three (3) N/IRR shifts between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster?
Employees are rostered to work until the point in time that they are allocated a shift, at which point they receive confirmation as to when they are required to attend for work. The allocation occurs as set out in clauses 26.4 and 26.5[105] of the Agreement.
In the case of Mr Wallins making himself unavailable to work on 2 May 2022 (Labour day), if he made himself unavailable before he was allocated to work on 2 May 2022, clause 29.15 would apply and he would be paid his normal salary AND the shift shall be counted as a shift worked. If Mr Wallins had made himself unavailable after he was allocated to work on 2 May 2022, then clause 29.15 would not apply, he would not be paid his normal salary and he would not be counted as having worked. The same applies to Mr Wallin in respect of 7 April 2023 and Mr Martin in respect of 16 August 2023. Each circumstance would turn on at what point the employee made themselves unavailable in relation to when the shift was allocated. If they are unavailable before it is allocated clause 29.15 applies and if it is after, then clause 29.15 does not apply.
The clause is constructed in a particular order. I will repeat Clause 29.15 for clarity:
Where Mr Wallins is rostered to work a Public Holiday and is not required, or makes himself unavailable, he shall be paid normal salary and the shift counted as a shift worked
The converse of that is:
Where Mr Wallins is rostered to work a Public Holiday and IS required to work on a public holiday (in other words, he is allocated to work his shift on the Public Holiday), and he makes himself unavailable, then he is NOT paid his normal salary nor is he counted as having worked.
Question 3(c)(i) Where an employee at BCT is rostered to work a public holiday between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster and is not required to work on a public holiday or makes themselves unavailable, is normal salary payable?
The answer to this is self-evidently yes as this is how clause 29.15 is constructed as set out in my preceding paragraphs.
Question 3(c)(ii) Where an employee at BCT is rostered to work a public holiday between Monday to Friday in weeks two and six of the BCT Permanent Fixed Roster and is not required to work on a public holiday or makes themselves unavailable, and is the shift to be counted as a shift worked?
Again, the answer to this is also self-evidently yes as this is how clause 29.15 is constructed as set out in my preceding paragraphs.
Conclusion
The Answers to the Agreed Questions in summary are:
Question 1: No
Question 3(a): Yes.
Question 3(b): Yes.
Question 3(c)(i) Yes
Question 3(c)(ii): Yes
The dispute is determined accordingly.
DEPUTY PRESIDENT
[1] Warrell v Fair Work Australia [2013] FCA 291.
[2] Ibid.
[3] Digital Court Book (DCB) p 9 [8].
[4] DCB p 10 [15].
[5] DCB p 9 [9].
[6] DCB p 9 [11].
[7] Ibid.
[8] DCB p 9 [11].
[9] DCB p 10 [13].
[10] DCB p 10 [13].
[11] DCB p 205 [2].
[12]Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2)
[2020] FCA 1694 [140] (Colvin J) (‘Maersk’) as cited in DCB p205 [2].
[13] Ibid [143].
[14] DCB p210 [14].
[15] DCB p210 [14].
[16] DCB p210 [15].
[17] DCB p210 [16].
[18] DCB p210 [17].
[19] DCB p210 [18].
[20] DCB P 211 [19].
[21] DCB P 211 [20].
[22] DCB P 218 [10].
[23] DCB P 218 [11].
[24] DCB P 218 [12].
[25] DCB P 218 [13].
[26] DCB P218 [13]
[27] DCB p 219 [18].
[28] DCB P 219 [18].
[29] DCB p 219 [18].
[30]DCB p 219 [19].
[31] DCB p 219 [20].
[32]DCB p 219 [21].
[33] DCB 220 [22].
[34] DCB 220 [23].
[35] Ibid.
[36] DCB p 220 [24].
[37] DCB p 220 [25].
[38] DCB p 220 [1].
[39] DCB p 221 [6].
[40] DCB P 222 [7].
[41] DCB p 222 [8].
[42] DCB p 222 [9].
[43] DCB p 222 [9].
[44] DCB p 222 [13].
[45] DCB p 224 [22].
[46] DCB p 223 [24].
[47] Ibid.
[48] DCB p 336 [3].
[49] DCB p336 [5].
[50] DCB 338 [15].
[51] DCB p 338 [16].
[52] DCB p 339 [20].
[53] DCB p 339 [21].
[54] DCB p 362 [1].
[55] DCB p 362 [2].
[56] DCB p362 – 363 [3].
[57] DCB p 362 [4].
[58] DCB p365 [4].
[59] DCB p 365 [5].
[60]Ibid.
[61] DCB p 365 [6].
[62] DCB p 365 [6].
[63] DCB p 365 [6].
[64] DCB p 366 [8].
[65] DCB p 366 [8].
[66] DCB p 366 [9].
[67] DCB p 366 [11].
[68] DCB p 366 [13].
[69] DCB p 367 [14].
[70] DCB P 368 [19].
[71] DCB P 368 [19].
[72] DCB P 368 [19].
[73] DCB P 368 [20].
[74] DCB P 368 [21].
[75] DCB P 369 [23].
[76] DCB p 369 [24].
[77] DCB p 369 [24].
[78] DCB p 369 [24].
[79] DCB p 370 [27].
[80] DCB P 370 [27].
[81] DCB P 370 [28].
[82] DCB P 370 [28].
[83] DCB p 370 [29].
[84] DCB p 373 [1].
[85] DCB p 376 [15].
[86] DCB p 377 [19].
[87] DCB p 377 [19a].
[88] DCB p 377 [19b].
[89] DCB p 377 [19b] & [19c].
[90] DCB p 377 [19e] – [19g].
[91] DCB p 377 [20].
[92] DCB pp 399-400.
[93] Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 [2021] FWCA 4855 Cl. 14.
[94] Ibid cl. 14.4-14.9.
[95] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).
[96] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005, [114] (Berri).
[97] [2023] FWCFB 220 [29]-[31].
[98] [2022] FWC 269.
[99] Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, Form F10, Q2.1, [9]-[12].
[100]Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 [2021] FWCA 4855 Part B: Schedule 6 [3.4].
[101] Ibid.
[102] Ibid.
[103] DCB p 139 [26.4]-[26.5].
[104] DCB p 308 [1.2].
[105] DCB p 139.
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