Construction, Forestry and Maritime Employees Union v Victoria International Container Terminal Pty Ltd
[2025] FWC 520
•20 FEBRUARY 2025
| [2025] FWC 520 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry and Maritime Employees Union
v
Victoria International Container Terminal Pty Ltd
(C2025/501)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 20 FEBRUARY 2025 |
Dispute arising under enterprise agreement – merit arbitration of requirement to swap shifts – mental health concerns not substantiated – shift swap to proceed
The following is an edited version of a decision given ex tempore on transcript earlier today, to which I have added an introduction and a summary of an agreed statement of facts submitted by the parties.
The Construction, Forestry and Maritime Employees Union (CFMEU) has made an application under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in Schedule 2 of the Victoria International Container Terminal Operations Agreement 2021 (Agreement). The CFMEU lodged the dispute on behalf of its member, Mehedin Abbas, an automated equipment controller (AEC) who is covered by the Agreement. The dispute concerns a decision by Victoria International Container Terminal Pty Ltd (VICT) to require Mr Abbas to swap shifts. Mr Abbas does not wish to swap shifts. He has placed the matter in dispute, thereby activating the status quo provision in clause 2.1.1.7 of Schedule 2 of the Agreement.
Following the conference this morning, the parties requested that I proceed immediately to determine the dispute by arbitration, and I agreed to do so. It was common ground that the Commission was authorised by the Agreement to arbitrate the dispute, that the question for determination was whether or not Mr Abbas should have to swap shifts as required by VICT, and that the answer was to be determined by reference to the general merits of the matter.
The parties helpfully submitted an agreed statement of facts, which can be summarised as follows. VICT operates a shipping container terminal in Melbourne. To cover VICT’s continuous operations, operational employees work on a panel system, which involves four rotating groups of employees who are rostered to work together. These are known as ‘panels’. There are four panels, each of which comprises one shift manager, one ‘STS’ supervisor, three AECs, and various other workers, including general hands. Each panel is structured so that there are enough employees and skills to service vessels during a shift. When an employee commences working for VICT, they are allocated to a panel with a particular shift pattern.
Mr Abbas is an AEC in panel 2. The AEC role is critical to VICT’s operations. An AEC is responsible for monitoring automatic stacking cranes (ASCs) and automatic container carriers (ACCs) and rectifying any issues that arise, such as equipment malfunction.
Clause 7.4.5 of the Agreement provides as follows:
‘Changes to roster does not include the need to swap employees between roster panels where it is deemed necessary by the Company. In such instances, this can be done by agreement between the Company and affected employees or as required by the company by providing the notice as outlined in 7.3…’
Clause 7.3.1 provides:
‘It is agreed between the parties that after the above notification and discussion have taken place that the Company, after careful consideration of the views of Employees may implement the change with 28 days’ notice.’
The parties agree that under the Agreement, VICT is permitted to swap employees between panels where it is deemed necessary by VICT, and either: (a) the employee agrees; or (b) the employee is given 28 days’ notice. The parties also agree that VICT deems the panel swap to be necessary and has provided Mr Abbas with 28 days’ notice of the change.
In August 2024, VICT management received feedback from supervisors that panel 1 was underperforming, as it had a lower movement rate per ‘QC’ per hour than the other panels. As AECs are responsible for the ASCs, an AEC’s performance directly impacts the movement rate. VICT conducted a review of its panels and concluded that productivity would be improved if it moved some of its AECs between panels, so that strong performers were split across the four panels rather than concentrated in one or two panels. This involved Kayla Harris, chief human resources officer, and the operations management team reviewing and discussing the skills, training and experience level of employees across the panels to work out who would be best placed to achieve this. VICT identified Mr Abbas as a top-performing AEC whom it considered would improve the performance of panel 1. VICT considered that moving Mr Abbas into panel 1 was necessary to address serious concerns about the performance of panel 1. Mr Abbas was not the only employee to move panels as a result of the review.
On 25 September 2024, Matthew Jarkan, the control room manager who is responsible for all panels, wrote to Mr Abbas by email notifying him that VICT was moving him to panel 1 from 28 October 2024. This followed a discussion Mr Jarkan had with Mr Abbas about the move. On 11 October 2024, Mr Abbas replied and stated among other things, that the panel swap may affect his mental health.
On 16 October 2024, Ms Harris emailed Mr Abbas and asked for more information about his concerns, so that VICT could understand any psychosocial risks associated with the move and whether any appropriate measures could be put in place to manage those risks. Ms Harris’ email advised Mr Abbas that the panel swap would be put on hold until Mr Abbas provided further information.
Mr Abbas did not respond to this email. He did however raise a complaint with VICT about Mr Jarkan, to the effect that Mr Jarkan had made unspecified accusations and spread rumours about him. On 25 October 2024, Ms Harris emailed Mr Abbas following up on her 16 October email. Mr Abbas responded shortly afterwards, stating that he was still waiting for a response to the issues he had raised about Mr Jarkan. Ms Harris then emailed Mr Abbas reiterating that the reason for the panel swap was that panel 1 had lower productivity than other panels and that switching AECs was expected to improve productivity. Mr Abbas replied, stating that he felt the panel swap was being used to punish him. On 8 and 15 November 2024, Ms Harris emailed Mr Abbas confirming that the swap would proceed on 7 December 2024. On 22 November 2024, Mr Abbas emailed Ms Harris putting the matter into dispute. On 18 December 2024, Ms Harris met with Mr Abbas and his union representative, Aarin Moon. Mr Abbas said that he would not be swapping panels. Since then, Mr Abbas has been on annual leave. On 16 January 2025, Ms Harris again met with Mr Abbas and Mr Moon to discuss his return to work and the panel swap. However, Mr Abbas remained unwilling to swap panels and he considered the dispute unresolved. Mr Abbas continues to be on annual leave.
Consideration
I find that VICT’s reason for requiring the swap is to improve the productivity of panel 1, and that the swap will be conducive to this objective because Mr Abbas is a high performing AEC. I find that no element of VICT’s reason for the swap is punitive. I appreciate that Mr Abbas does not wish to swap shifts, however the Agreement gives VICT the right to require him to do so on 28 days’ notice, which it has provided to him, together with a good business reason for the requirement that he move to panel 1.
Mr Abbas says that a swap to panel 1 would adversely affect his mental health. This has not been demonstrated. It is very common in workplace disputes for the Commission to hear a general contention that a worker’s mental health is a factor that should be taken into account. Mental health problems are to be taken seriously. But one does not take a matter seriously by accepting a claim at face value. This is in fact the opposite of taking it seriously. The fact that a person is upset by something does not mean that there is a mental health problem. Concerns, grievances, dissatisfaction, frustration and negative emotions and states of mind might be manifestations of a mental health problem, but this cannot simply be assumed just because a person describes them as such. If a worker has a mental health problem, or faces a mental health risk, this must be substantiated, such as through medical evidence, before the Commission can rationally treat the matter as a mental health issue and properly take account of it in the determination of a dispute.
The Agreement confers many benefits on Mr Abbas and other employees. It gives the company certain rights. One is to require shift changes as contemplated by clause 7. These arrangements are subject to any decision that the Commission might make in arbitrating a dispute. In this case, there is a good business reason why the swap should occur. In my opinion it is fair and reasonable that it should proceed. The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
A. Moon for the CFMEU
K. Harris for Victoria International Container Terminal Pty Ltd
Hearing details:
2025
Melbourne
20 February
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