Construction, Forestry, Maritime, Mining and Energy Union the Maritime Union of Australia Division v Svitzer Australia Pty Ltd
[2023] FWC 154
•20 JANUARY 2023
| [2023] FWC 154 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
v
Svitzer Australia Pty Ltd
(C2022/8414)
| COMMISSIONER RIORDAN | SYDNEY, 20 JANUARY 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 22 December 2022, I issued an Order (PR749188) continuing Mr Campbell’s employment until 20 January 2023.
A further Conference was convened on 12 January 2023 in an attempt to resolve the dispute.
Following the MUA receiving instructions from Mr Campbell, the matter was relisted for further Conference on 19 January 2023.
At this Conference, the MUA was represented by its Legal Officer, Ms Carr, whilst Svitzer was represented by Mr Izzo from ABL Lawyers.
Once again, the matter could not be resolved by conciliation. The MUA asked for Directions to be issued and for the Interim Order to be extended. Svitzer opposed the extension of the Order. This Decision does not repeat the background facts of the Dispute and deals with the extension of the Interim Order only.
Submissions on Extension of Order
The MUA submitted that Mr Campbell would be prejudiced if the Order was not continued and he was actually terminated on 20 January 2023. The MUA posited that the jurisdiction of the Commission would simply “fall away” if Mr Campbell was terminated.
Further, the MUA submitted that Mr Campbell’s position is currently vacant and that Mr Campbell is “ready, willing and able” to return to work to perform his job.
As a result, the MUA argued that the Balance of Convenience favours the extension of the Order.
Svitzer submitted that there were 3 reasons why the Order should not be extended, namely:-
a)Prima Facie Case
b)Balance of Convenience
c)Lack of Jurisdiction of the Commission
Svitzer submitted that “prima facie” their case is very strong on the basis that their actions are highly consistent with the Sydney Port Operating Procedures (POPs):
“Port Operating Procedure - Sydney Ports (Botany and Sydney Harbour)
FINAL VERSION as of 10 September 2021
…
Clause 1: Current Crewing Compliment
15 x full time crew and a suitable pool of casual employees will be maintained as required. A Full-time position through a job-sharing arrangement can be split into two 50% part time positions.
As from the date of hiring to meet the operational requirement of the POPs; an additional 2 x 100% LIR crew (for a fixed term period of 6 months). Svitzer has the discretion as to whether it will extend the fixed term contracts beyond the 6-month period and the discretion to appoint any fixed term employees from time to time similar to casual employment.
(a) One month prior to the end of the term of the Fixed Term Contracts, Svitzer will conduct a review of its operational requirements to assess whether, based on those requirements, it needs to extend those contracts (including whether they would be extended on similar percentage or lower percentage) and the period of extension; or
(b) bring the Fixed Term Contracts to an end.
If there are any changes required to these POPs or the roster as a result of the changes to the Fixed Term Contracts, the amendments will be limited to Clause 1: Current Crewing Complement and Clause, Clause 4.1: Advised Steam Times, Clause 4. 7 - LIR 100% and Clause 5- Relief Arrangements), Svitzer will consult with the employees and the Unions in accordance with the terms of the Enterprise Agreement.
Primary Crews: 5 Crews to be comprised of:
• 2 Early Primary Crews (Botany)
• 2 Late Primary Crews (Botany)
• 1 Primary Crew (Sydney)
• 3 Flexible Crews (F1, F2, F3)
• Leave in running; 2 x 100% LIR (Fixed Term Contract based on the terms
outlined above).”
(My emphasis)
Svitzer claimed that the required review occurred in February 2022 which resulted in new fixed term contracts being issued to all 6 employees, therefore, paragraph (a) has been satisfied and that paragraph (b) has been applied as the contracts were brought to an end.
Svitzer further submitted that, whilst there was no need for a review, a review did occur on 8 December 2022 at a meeting between the Chief Operating Officer and the Sydney Port Manager. The outcome of this review was advised to the MUA on 20 December 2022. Svitzer emphasised that the decision to review, terminate or create fixed term contracts is at their discretion as per the POPs.
Svitzer posited that the “Balance of Convenience” consideration should be determined in their favour on the basis that they have been paying Mr Campbell since 1 January 2023 without using his services. Svitzer advised that they have been using casual employees to replace Mr Campbell in the roster.
Svitzer also argued that the dispute is alive and can be arbitrated whether or not Mr Campbell is still employed.
Svitzer further submitted that the Commission does not have the jurisdiction to issue or extend any Order. Svitzer referred to section 739(5) of the Fair Work Act 2009 (the Act), which states:-
“739 Disputes dealt with by the FWC
…
(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.”
(My emphasis)
Svitzer submitted that the Dispute Settling Procedure under the Agreement contains a status quo provision:
“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.”
Svitzer argued that the status quo of this dispute was that Mr Campbell’s employment automatically came to an end on 31 December 2022. Svitzer highlighted the stay decision of Easton DP in this matter, where Svitzer unsuccessfully applied for a stay of my Order of 22 December 2022:
“[50] By the terms of Mr Campbell’s written contract of employment signed in March 2022, Mr Campbell’s employment would automatically cease on 31 December 2022. The MUA’s complaint in the present dispute is that Svitzer has failed to, or declined to, take action to avoid the operation of those relevant terms of the contract of employment. In these circumstances it is arguable that the relevant “status quo” is that Mr Campbell’s employment would end on 31 December 2022 by operation of his contract of employment.”[1]
Svitzer submitted that if the Commission were to extend the Interim Order, then this would be inconsistent with the provisions of the Agreement and a breach of s.739(5) of the Act.
In response, the MUA submitted that the POPs are clear, that there is an operational requirement for 2 crews which are to be manned by fixed term employees – not casuals (see paragraph [10] above).
Further, that the prejudice allegedly being suffered by Svitzer due to the increased costs associated with the operation of these 2 crews, is due to their own conscious decision to refuse to utilize the services of Mr Campbell.
Finally, in relation to the jurisdiction of the Commission, the MUA referred me to the wording of the Dispute Settling Procedure and highlighted the phrase “pending the completion of the procedure…”. The MUA submitted that the procedure has not yet been completed.
The MUA sought an extension of the Orders in accordance with section 589 of the Act.
Consideration
I have taken into account all of the submissions of the parties. I have also read the submissions in the “stay application” before Easton DP which were mentioned by Svitzer in the proceeding and provided to Chambers after the proceeding. I have also taken these submissions into account.
I have taken into account the “stay” decision of Easton DP where he said:
“[31] For present purposes I do not need to form a conclude[d] view on each of Mr Campbell’s possible legal options. I am satisfied that there is a potential prejudice to Mr Campbell that if the stay order is granted he could be without an avenue to dispute Svitzer’s decision not to extend his contract.
[32] To be clear, ultimately Mr Campbell might not have any practical legal recourse to challenge the cessation of his employment, and it is not the role of the Commission to manufacture a new legal cause of action for him. The dispute proceedings commenced, and the Commissioner made his interim order, while Mr Campbell was still employed. There is a distinct possibility that if Mr Campbell’s employment was to end then he would suffer prejudice because legal avenues that are currently open to him will be closed.
[33] The timeframes within which the matter was listed, the interim order was made, the appeal was lodged and the stay application was determined were dramatically condensed because of Svitzer’s decision to break the news to Mr Campbell so close to the Christmas period. It does not really matter whether Svitzer was strategic, capricious or just slow in deciding not to extend Mr Campbell’s employment, the key consideration is the potential prejudice to Mr Campbell’s legal position if his employment ceases on 31 December 2022 compared to his legal position if his employment continues until the appeal and/or the dispute proceedings are resolved.
[34] In weighing up the relative interests and risks of the parties the balance of convenience does not favour the granting of a stay order and therefore Svitzer’s application must fail.”
(My emphasis)
In response to a question from me, Svitzer provided a written response after the conference confirming their commitment not to raise any jurisdictional issue on appeal if I were to order that Mr Campbell be offered a new fixed term contract. However, Svitzer reserved its rights to appeal any findings of the Decision. In response, the MUA submitted that this scenario would severely prejudice Mr Campbell’s position if the Interim Order is not continued. Based on the litigious propensity of the parties, the commitment given by Svitzer may lead to further prejudice for Mr Campbell. For example, whoever is successful in the arbitration on 16 February 2023, based on recent history, the unsuccessful party will more than likely appeal this decision. This appeal would likely to be heard in May with a decision of the Full Bench likely to be issued in June. It would be clearly prejudicial to Mr Campbell for him to be in this state of flux for this period of time without remuneration whilst the Dispute Settling Procedure reaches its conclusion (subject to any further appeal rights to the Court).
I share the same concerns as Deputy President Easton in relation to the future prejudice of Mr Campbell. Whilst I acknowledge the commitment given by Svitzer in relation to not appealing any possible future decision on this particular point, such a commitment cannot bind any Full Bench or Court.
I have taken into account the decision in Krcho v University of NSW & ors [2019] FWCFB 8269 at [21] where the Full Bench said:
“[21] The Deputy President next sets out the principles which he intended to apply in determining whether to grant the interim relief sought. After setting out the source of power to make an interim decision in s.589 of the Act, the Deputy President said:
“As s 589(2) does not limit the Commission’s powers to make an interim decision to particular species of applications or exclude others, it may be safely assumed that the making of interim orders in a stop bullying application is a power available to the Commission. Put another way, there is no express or inferred statutory provision which would exclude the Commission from exercising such a power in s 789FC applications...
The Commission is frequently called upon, in all of its areas of jurisdiction under the Act, to make interim decisions and/or orders.: The principles to be applied in such circumstances are well established and are often referred to as the tests of whether prima facie firstly, there is a serious question to be tried, and secondly, whether the balance of convenience favours the order for interim relief. In Quinn v Overland [2010] FCA 799, Bromberg J set out at [45] and [46] the two main considerations as follows:
‘[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65], [19].
[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].’”
(My emphasis)
I have taken into account the decision in Wills v Grant, NSW Government and Sydney Trains[2020] FWCFB 4514 where the Full Bench held that the Commission has no power to provide interlocutory relief to prevent a dismissal.
However, I note that the MUA is not attempting to circumvent the unfair dismissal provisions of the Act by bringing this application. This dispute is not about a pending unfair dismissal, but the application and enforceability of the POPs and their effect on Mr Campbell’s contract.
I have taken into account the decision referred to by Svitzer in their written “stay submissions” in CEPU v Tasmanian Water Sewerage Corp [2015] FCCA 2382 (Tasmanian Water):
“26. A similar point was examined in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Tasmanian Water Sewerage Corporation Pty Ltd [2015] FCCA 2382 AB 112. In that case, the question was whether a status quo provision prevented the dismissal of an employee for serious and wilful misconduct. The Court noted at [54], [55] AB 127 that:
The phrase in subclause 52(f), in this instance, was “while the dispute resolution procedure is being conducted, the ‘status quo’ will prevail”.
In the particular circumstances of this case, that must mean that the situation, as it was when the dispute first arose, must be preserved.
27. The Court held at [60]-[61] AB 128 that:
… The status quo, as at the date of the creation of the dispute, was that Mr Cottee’s employment would be terminated unless the mercy option was accepted. It was not accepted and his employment was terminated. This was the status quo.
Given the employer retains the right pursuant to the Agreement to summarily dismiss, the apparent freezing of such a decision by the dispute settlement procedure is, in any event, counterintuitive. It is easy to contemplate circumstances where the employer might seek to terminate the employment of an employee for serious misconduct, such as an assault. In my opinion, it would be contrary to common sense and good industrial practice that an employee whom another employer intended to dismiss, for example, for assault upon a supervisor, could have that process brought to a standstill for a protracted period of time by the dispute settlement procedure and its sequelae in the Fair Work Commission. In my view, the summary dismissal power would remain outside this process.”
(My emphasis)
Determination
The Dispute Settling Procedure allows the Commission to arbitrate a dispute. The parties have acknowledged that the Commission has the power to arbitrate this dispute and Directions have been issued. The Hearing is listed for 16 February 2023.
I am of the view that in order to deal with the Interim Order application, it is necessary to determine the meaning of the phrase “status quo” in the Dispute Settling Procedure.
In reaching my decision, I have taken into account the principles enunciated by the Full Bench in AMWU v Berri.[2]
The Collins English Dictionary defines the term “status quo” to mean:- “the existing state of affairs”. This definition fits with the plain and ordinary meaning of the term and in accordance with a plethora of decisions of any number of Tribunals and Courts in Australia.
In Tomvald v Toll Transport Pty Ltd [2017] FCA 1208, Flick J held: -
“282...both parties to any dispute need to be aware that there exists a dispute which falls within the ambit of the Enterprise Agreement and a dispute which attracts mutual obligations to try to resolve.
283The protection afforded by cl 15(g) is, accordingly, a protection which attracts reciprocal obligations: on the one hand, an employer may be bound to maintain the status quo pending the resolution of a dispute; on the other hand, an employee only gains that protection by following the steps set forth in cl 15 and providing an opportunity for the dispute to be resolved. Although there need not be unnecessary formalism in the process of resolving the dispute and each of the steps undertaken, the protection afforded by cl 15(g) is only afforded in those circumstances where the “procedure” envisaged by cl 15 is being followed. The protection is not attracted (or does not persist) where that “procedure” is not invoked or where it is invoked but later abandoned.”
The Dispute Settling Procedure can be broken down into 3 sections:-
a)“Need to complete the procedure whilst work continues without interruption”. In my opinion, Svitzer appears to have interrupted Mr Campbell’s work by refusing to allow him to work. I note that the work previously performed by Mr Campbell and his colleagues is ongoing and is continuing without interruption.
b)“Pending the resolution of the dispute the status quo shall apply”. I am satisfied that the specificity of the wording in this provision ties the final resolution of the dispute to the status quo.
c)“No prejudice to either party by allowing work to continue normally and without interruption”. I am satisfied that Mr Campbell will be prejudiced if the traditional and universal understanding of the phrase ‘status quo’ is not applied because Svitzer intend to terminate Mr Campbell today (see paragraph [22] above).
I do not accept the submission that the status quo of this Dispute would result in Mr Campbell being terminated on 31 December 2022. Such an outcome is not only illogical and contrary to the plain and ordinary meaning of the provision, it does not result in Mr Campbell being placed back into the same position that he was in on 20 December 2022. As a result, I find that the Commission has jurisdiction to extend its Interim Order and is not in breach of s.739(5) of the Act.
The representatives of both parties are experienced, highly competent and compelling advocates. Both believe that, prima facie, they have very strong cases. Evidence is required to test the assertions of the parties. Adopting the comments of Bromberg J in Quinn, I am satisfied that the MUA has identified a number of concerns in relation to a lack of compliance with the POPs to justify the “prima facie case” test.
I am satisfied that Tasmanian Water can be distinguished on the facts. The present case does not involve any issues of serious misconduct or possible criminal behaviour. I agree with the learned Judge that it would be absurd to invoke the status quo where an employee has allegedly assaulted their supervisor. In that case, the applicant had deliberately run over some ducks of a neighbour to the employer’s premises. The employee a week or so later then verbally abused the customer with highly inappropriate, offensive and unprovoked language. Following an investigation, the applicant was advised that he would be summarily dismissed for serious misconduct or he could take alternative disciplinary action. At that point, the Union raised the issue of status quo. This case provides no precedent value for the present matter for a variety of reasons including no suggestion of serious or wilful misconduct, or any suggested breach of Svitzer’s Code of Conduct. I note that the learned Judge basically created an exemption to the normal status quo interpretation for situations of serious and wilful misconduct.
I am also satisfied that the MUA is not simply attempting to delay Mr Campbell’s termination by a few weeks by making this application. The MUA has argued strongly that the POPs have not been complied with by Svitzer and that Mr Campbell, as a model employee, is entitled to the same treatment as his 5 other colleagues who were each granted a new 12-month fixed term contract from 1 January 2023. The MUA also submitted that the POPs refer to crews as a whole and not to individuals. I am satisfied that the MUA believes that Mr Campbell has been treated inappropriately and unfairly.
I am satisfied that any prejudice suffered by Svitzer in relation to an increase in costs is a result of their own actions. Svitzer has not identified, on the record, any concerns of the work performance, attitude or competence, of Mr Campbell. There is no identifiable reason why Svitzer could not utilise the services of Mr Campbell whilst the matter is finalised through the Dispute Settling Procedure.
As stated earlier, I agree with my colleague, Easton DP, that Mr Campbell may suffer prejudice if his contract expires before the Dispute Settling Procedure process is complete. Following the obiter and reasoning of Bromberg J in Quinn, I am satisfied and find that the balance of convenience favours an extension of the Order. The MUA has an arguable case that a review should have taken place before 1 December 2022. Svitzer agrees that this did not happen. Svitzer claims that a review occurred on 8 December 2022 but there is no evidence before me of any such review. In analysing the potential “injury” to both parties, Mr Campbell’s legal options may be severely reduced or extinguished compared to the increased wages bill that Svitzer has voluntarily imposed upon itself if an extension of the Order is not granted.
Conclusion
I am satisfied and find that Mr Campbell will suffer significant prejudice in relation to his possible legal remedies if he is terminated before the dispute is finalised through the Dispute Settling Procedure.
Using the arbitration power bestowed upon the Commission in the Agreement, I am satisfied and find that the phrase ‘status quo’ has a plain, ordinary and universally accepted meaning which prevents Svitzer from concluding Mr Campbell’s employment contract until the Dispute Settling Procedure process has been completed.
As a result of the above findings, I am satisfied that the Balance of Convenience and the Dispute Settling Procedure necessitate an extension of my previous Order.
I hereby Order that Mr Campbell continue to be employed until 27 February 2023. This timeframe will allow for the Hearing of the dispute and the publishing of a decision.
I so Order.
COMMISSIONER
[1] Svitzer Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2023] FWC 13 at [50].
[2] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian
M Printed by authority of the Commonwealth Government Printer
<PR749802>
anufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005.
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