Construction, Forestry, Maritime, Mining and Energy Union the Maritime Union of Australia Division v Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited
[2018] FWCFB 7561
•12 DECEMBER 2018
| [2018] FWCFB 7561 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
v
Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited
(C2018/6161)
| JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT SAUNDERS | MELBOURNE, 12 DECEMBER 2018 |
Appeal against decision [2018] FWC 6298 of Deputy President Booth at Sydney on 12 October 2018 in matter number C2018/1477 – arbitration under dispute resolution procedure in an enterprise agreement – permission to appeal granted – appeal dismissed.
Introduction
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal from a decision of Deputy President Booth issued on 12 October 2018 (Decision)[1] concerning a dispute under the Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd t/a Hutchison Ports Australia and Maritime Union of Australia Enterprise Agreement 2015 (Agreement).
The dispute concerns who can train operators at the Port Botany site of Sydney International Container Terminals Pty Ltd t/a Hutchison Ports Australia Pty Ltd (Hutchison).[2] The CFMMEU contended before the Deputy President that to train an employee covered by the Agreement it is necessary to be a qualified employee who is covered by the Agreement. Hutchison disagreed with that contention.[3]
The particular question put forward by the parties for arbitration by the Deputy President was as follows (Question):
In the circumstances disclosed by the evidence before the Commission and on the proper construction of the Agreement is it the case that training packages designed for employees covered by the Agreement so as to undertake work covered by the Agreement and the Stevedoring Industry Award 2010 must be carried out by qualified employees covered by the Agreement?
The Deputy President answered the Question in the negative.[4]
The Deputy President found that an agreement was reached between the CFMMEU and Hutchison on 16 June 2017 to the effect that no manager was to carry out training and only operational employees were to carry out training (June 2017 Agreement).[5] However, the Deputy President concluded that to make a decision that bound the parties to the June 2017 Agreement would be to make a decision that is inconsistent with a Fair Work Instrument, thereby contravening s 739 of the Fair Work Act 2009 (Cth) (Act).[6] The Deputy President reached this conclusion in light of her earlier finding that, on the proper construction of the Agreement, training must be conducted by a qualified person but an employee does not have to be covered by the Agreement to be qualified to conduct training.[7]
Is permission to appeal required?
An enterprise agreement can confer on the parties to a dispute an independent right of appeal (for which permission to appeal is not required) against a decision made by the Commission in the exercise of its arbitral powers under a dispute resolution procedure in the enterprise agreement. Whether or not such a right is conferred depends on the proper construction of the dispute resolution clause in the enterprise agreement. The approach to be taken to this issue was stated in the following terms, with which we agree, by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd:[8]
“[27] Subject to the observations in paragraph [17] above, when a dispute resolution procedure in an enterprise agreement simply makes provision for an “appeal” this should generally be interpreted as an appeal in accordance with the appeal provisions in the FW Act. Such an appeal is an appeal by way of rehearing. Where, as here, the parties have conferred a “right” of appeal, this language suggests an intention that the appeal be as of right (that is, without the need for permission to appeal) but otherwise in accordance with the appeal processes in the FW Act. However, the question remains one of interpreting the agreement to ascertain the intention of the parties, objectively determined, and the use of the word “right” may not be determinative.”
Clause 13 of the Agreement sets out the dispute resolution procedure. The role of the Commission in that procedure is governed by “Step 3”, which provides:
“Step 3 Fair Work Commission (FWC)
13.4 If 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:
a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then arbitrate the dispute;
c) Any 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.
13.4 If the FWC arbitrates the dispute:
a) It may also use the powers that are available to it under the Act; and
b) An appeal may be made against the decision.
13.5 Either 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…”
We note there are two clauses 13.4 in the Agreement. This appears to be a numbering error. Neither party submitted otherwise.
Clause 13.4 of the Agreement does not expressly state that the parties to a dispute have a “right” of appeal, but the use or absence of the word “right” is not determinative.
Clause 13.4(c) of the Agreement provides that a determination by the Commission is binding, subject to the parties’ “rights under the Act”. The fact that clause 13.4(c) concerns the finality of an arbitrated decision by the Commission suggests that the reference in the proviso to “rights under the Act” at the end of clause 13.4(c) is concerned with rights of appeal under the Act. Section 604 of the Act provides for an appeal by an aggrieved person to the Full Bench of the Commission, but only with the permission of the Full Bench. Accordingly, the Act does not confer on a party a right to appeal a decision of the Commission.[9] An appeal under the Act is conditional on permission to appeal being granted. We also consider it is implicit from s 604(1) of the Act that a respondent to an appeal has a right for the appeal not to succeed unless permission to appeal is granted.
In our view, the second clause 13.4 of the Agreement is an informative provision, as distinct from a provision which confers rights or imposes obligations on parties to a dispute. The second clause 13.4(a) states that, if the Commission arbitrates a dispute, it “may also use the powers that are available to it under the Act”. However, absent such a provision in the Agreement, the Commission would in any event be entitled to exercise such powers in a private arbitration. That is because, absent express words to the contrary, where parties to an enterprise agreement elect to refer a dispute to the Commission, they take the Commission as they find it, including the exercise of statutory powers in the course of a private arbitration.[10] The same analysis applies to the second clause 13.4(b), namely, absent express words in an enterprise agreement to the contrary, where parties to an enterprise agreement elect to refer a dispute to the Commission, they take the Commission as they find it, including the ability of a party to a dispute to appeal an arbitrated decision with permission from the Full Bench.[11]
Further, the reference in the second clause 13.4(b) of the Agreement to “an appeal may be made against the decision” must be read and construed in context with clause 13.4(c), including the requirement in that provision that arbitrated decisions “shall be binding … [on] the Parties, subject to their rights under the Act”. A reasonable person reading those two provisions together would, in our view, conclude that the Agreement does not confer an independent right of appeal against an arbitrated decision of the Commission; any such appeal requires permission from the Full Bench of the Commission in accordance with s 604(1) of the Act.
Should be permission to appeal be granted?
Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[13]
Other than granting permission to appeal on a public interest basis, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if refused.[14]
We are satisfied that it is in the public interest to grant permission to appeal in this case, for two reasons. First, the appeal raises important issues concerning the purported resolution of a dispute by the parties and the impact of that purported resolution on a subsequent arbitration by the Commission. Secondly, the appeal raises an issue of general importance concerning the proper application of s 739(5) of the Act and the circumstances in which a decision made by the Commission in private arbitration may be inconsistent with a fair work instrument that applies to the parties.
Proper construction of the Agreement
There is no dispute between the parties about the principles applicable to the task of properly construing the Agreement. Those principles were summarised by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd.[15]
Clause 11 of the Agreement deals with training and is of central importance to the resolution of the dispute. It provides:
“11. TRAINING
11.1 The Company will conduct training of employees to meet its operational/maintenance requirements and its WHS policies and procedures.
11.2 Where such training requires an employee to obtain on maintain a licence or other qualification, the Company will pay the costs associated with obtaining and maintaining such licence or qualification as long as the licence or qualification remains a requirement of the employee’s job role.
11.3 The Company may utilise internal or external training providers, trainers and assessors so as to best meet its training requirements.
11.4 Certificates and/or Statements of Attainment consistent with relevant Qualifications or Units of Competency drawn from the Transport & Logistics Training Package (Stevedoring) or other training packages will be issued where applicable.
11.5 The selection of employees for training shall be based on merit based on criteria as set out in Schedule 7 and designed to meet operational needs, HSEQMS requirements and in accordance with objectives identified through the Company’s performance management systems and career development processes and, where appropriate, risk based training needs analysis.
11.6 Where employees are required to conduct training and assessment, they must be qualified to do so. Payment for any shifts in which an employee is deployed as a trainer or assessor shall be at the Level 4 rate under this Agreement, unless the trainer/assessor is appointed on a higher Level ordinary rate, in which case the higher rate will apply.
11.7 Employees may also be required to assist with guidance, coaching and mentoring of employees who are undergoing on-the-job training, as part of their normal work.
11.8 Employees attending training will be paid in accordance with this Agreement. Where receiving on the job training, an employee will receive their Level ordinary rate of pay until assessed as competent in the higher skill and will then be paid at the higher Level rate when performing in the higher paid role.
11.9 The Company will develop and maintain a training plan for each site, which will be reviewed by the Parties in accordance with the arrangements in sub-clauses 6.12 and 6.14.
11.10 It is agreed between the Parties that there will be an agreed training provider engaged. The Training provider will be determined on the standard of services and cost to meet the agreed training plan. Training delivery will be undertaken through a registered training organisation.”
Schedule 9 to the Agreement defines “Employee” to mean an employee of Hutchison.
Clause 11.3 of the Agreement gives Hutchison the option to “utilise internal or external training providers, trainers and assessors so as to best meet its training requirements”. It is significant that clause 11.3 distinguishes between training providers, trainers and assessors. Trainers “conduct training” and assessors “conduct … assessment” of training. So much is clear from clause 11.6 of the Agreement.
Clause 11.10 governs the engagement of a training provider by Hutchison. In particular, clause 11.10 records an agreement between “the Parties that there will be an agreed training provider engaged. The Training Provider will be determined on the standard of services and cost to meet the agreed training plan”. It is plain from clause 2.1 of the Agreement that the CFMMEU is one of the “Parties” referred to in clause 11.10 of the Agreement. The obligation on the “Parties” to agree on the engagement of a training provider under clause 11.10 constrains the otherwise unfettered right Hutchison has under clause 11.3 to utilise “internal or external training providers”. Once the “Parties” have reached agreement on the engagement of a training provider, Hutchison would be precluded from using a different training provider. It may also be that clause 11.10 precludes Hutchison from using any training provider until an agreed training provider is engaged, but we do not need to resolve that issue in this appeal.
Unlike the obligation under clause 11.10 to agree on the engagement of a training provider, there is no requirement in the Agreement for any person who Hutchison selects to undertake training or assessment, whether an internal employee or an external party, to be agreed by the CFMMEU or any other person. The only requirement or limitation on the use by Hutchison of employees to conduct training and/or assessment is that they be qualified to do so (clause 11.6). The CFMMEU accepts, correctly in our view, that the Deputy President found that Mr Steve Holland, a managerial employee of Hutchison engaged in the position of Workforce Trainer, who Hutchison wished to undertake the training of operational employees, was qualified to conduct such training.[16] There is no appeal against that finding.
The Agreement does not limit the employees who can undertake training and/or assessment to employees who are covered by the Agreement. So much is clear from the opening sentence of clause 11.6, read together with the broad definition of “employee” in Schedule 9 of the Agreement.
The dispute before the Deputy President concerned who would conduct the training of operational employees, not whether an agreed training provider had been engaged. In fact, there was no live issue before the Deputy President as to whether an agreed training provider had been engaged by Hutchison. Accordingly, the Deputy President did not make any finding about that question.
For the reasons we have given, the Deputy President was correct to conclude that in the circumstances disclosed by the evidence before the Commission and on the proper construction of the Agreement, Hutchison is not obliged to only use qualified employees covered by the Agreement to deliver training to employees covered by the Agreement. Instead, Hutchison can either utilise external trainers or qualified employees of Hutchison, whether or not the employees are covered by the Agreement, to conduct such training.
June 2017 Agreement and s 739(5) of the Act
The starting point for the involvement of the Commission in this dispute is evident from the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Form F10). In completing that form, in answer to the question, “What is the dispute about?” the following answer was given:
1. On 16 June 2017 representatives of the MUA met with representatives of SICTL to discuss training at Port Botany. At the meeting the parties agreed that, inter alia, SICTL Managers would not conduct training and that only Operational Employees would conduct training (except for Tower Clerk training).
2. On 19 March 2018 a representative from SICTL indicated that Managers were to conduct training for 3-high shuttles on 20 March 2018 instead of Operational Employees. This is contrary to the agreement between the MUA and SICTL and would create safety issues.
3. Also on 19 March 2018 the Employee Representative Committee notified SICTL that the issue of training was in dispute.
4. SICTL have breached the agreement with the MUA and the enterprise agreement.[17]
In answer to the question, “What clause of the industrial instrument….does the dispute relate to?” the answer given was Clause 13, which is the dispute settlement procedure in the agreement. There was no apparent reference in the Form F10 to clause 11 of the Agreement.
The content of the Form F10 cited above aligns with the submissions made by the CFMMEU that they believed that they had an agreement on 16 June which they say Hutchison subsequently walked away from and as a result they invoked the provisions of the Agreement to resolve that dispute.[18]
However, while Hutchison’s conduct in allegedly “welching on” or “walking away from” the June 2017 Agreement was the apparent catalyst for the dispute, the parties ultimately agreed that the task of the Deputy President in arbitrating the dispute was to answer the Question set out in paragraph [3] above. Answering that Question plainly requires, amongst other things, that the relevant terms of the Agreement be properly construed. That is what the parties made submissions on and what the Deputy President turned her mind to. It is her Decision to construe the Agreement in the way that she has that is at the heart of this appeal. It is also apparent from the foregoing consideration that we do not agree that the Deputy President was in error in construing the Agreement in the way that she did.
Of course the starting point to the agreed Question to be determined is “In the circumstances disclosed by the evidence before the Commission and on the proper construction of the Agreement..,” (emphasis added) which is consistent with the CFMMEU’s submissions that there were two bases upon which the CFMMEU put that the question should be resolved in the affirmative, the second being the fact that the parties themselves had resolved the dispute sometime earlier.[19]
We note that it is apparent that the Deputy President found that there was an agreement reached on 16 June 2017 that only employees covered by the Agreement were to deliver training.[20] It is apparent that in doing so the Deputy President has had regard to the CFMMEU contentions as well as the evidence in regard to the alleged agreement and found in favour of the CFMMEU on that point. This raises the question as to what the relevance of this finding of fact was on the ultimate determination.
On that point, the CFMMEU submits that: “The second aspect of the case really serves only to confirm the first: namely, the parties had by their own agreement of 16 June 2017 resolved their own dispute about training in a manner that was consistent with clause 11.3…”.[21] The obvious problem with this submission is that the June 2017 Agreement is not consistent with the proper construction of the Agreement. Put another way, the June 2017 Agreement does not confirm the proper construction of the Agreement, instead it is inconsistent with it, because the Agreement permits the use of external trainers and qualified internal trainers, whether covered by the Agreement or not, whereas the June 2017 Agreement purports by its terms to prevent Hutchison from using an external trainer of its choice or an internal trainer who is not covered by the Agreement.
The June 2017 Agreement does not operate so as to limit or constrain what the Commission can determine in answering the Question posed. Indeed, the CFMMEU concedes that the Commission is not constrained or bound by the June 2017 Agreement.[22] This leads to a consideration of the operation of section 739(5) of the Act in the circumstances of this case.
Section 739(5) is in the following terms:
“(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.”
Having determined the proper construction of the terms of the Agreement and it being apparent that the Agreement was not consistent with that construction, the Deputy President found that “to make a decision that bound the parties to the agreement of June 16 2018 [sic] would be to make a decision that is inconsistent with a Fair Work Instrument. To do this would contravene s.739(5) of the Act”.[23] The CFMMEU’s submissions as to what the error of the Deputy President is on this point have a certain circularity to them. The CFMMEU’s submission is to the effect that there is nothing inconsistent with what the Agreement means and the June 2017 Agreement.[24] However, as already stated, that is not the situation, they are inconsistent. Having correctly determined that the Agreement did not have the construction contended for by the CFMMEU, it was not open to the Commission to make a finding that as a result of the June 2017 Agreement the Question should be answered in the affirmative. To do so would contravene section 739(5) of the Act. The Deputy President was not in error to so find.
We have considered the decision Lloyd v Australia Western Railroad Pty Ltd[25] (Lloyd) referred to by the CFMMEU. In Lloyd the Full Bench found that the Commissioner had incorrectly determined that there was a jurisdictional limit imposed by the particular terms of the enterprise agreement that operated to prevent the Commission from dealing with the particular dispute in that matter. We agree with Hutchison that Lloyd is to be understood in its particular context.[26] This matter did not involve the Deputy President determining she could not deal with the dispute at all as a result of section 739(5) and the decision in Lloyd does not alter our view that the approach the Deputy President took was the correct one.
Conclusion
For the reasons we have given, permission to appeal is granted and the appeal is dismissed.
PRESIDENT
Appearances:
R. Reitano of Counsel for the Construction, Forestry, Maritime, Mining and Energy Union
J. Fernon of Senior Counsel for Sydney International Container Terminals Pty Ltd t/a Hutchison Ports Australia Pty Ltd
Hearing details:
2018.
4 December.
Sydney.
Final written submissions:
Appellant – 19 November 2018
Respondent – 28 November 2018
[1] [2018] FWC 6298
[2] Decision at [1]
[3] Decision at [2]
[4] Decision at [13] & [99]
[5] Decision at [36]-[44] & [88]
[6] Decision at [90]-[91]
[7] Decision at [90]
[8] [2011] FWAFB 2555
[9] DP World Brisbane Pty Ltd v Maritime Union of Australia (2013) 237 IR 180; [2013] FWCFB 8557 at [42]
[10] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [49]-[57] & [85]
[11] Ibid
[12] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others(2011) 192 FCR 78 at [44] -[46] .
[13] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[14] Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
[15] (2007) 268 IR 285 at [114]
[16] Decision at [46]-[48] & [92]-[93]
[17] Appeal Book pp.27
[18] Transcript at [88]
[19] Appellant’s Outline of Submissions 19 November 2018 at [5]
[20] [2018] FWC 6298 at [88]
[21] Appellant’s Outline of Submissions 19 November 2018 at [15]
[22] Transcript at [60]
[23] [2018] FWC 6298 at [90]
[24] Transcript at [222]
[25] Lloyd v Australia Western Railroad Pty Ltd [2017] FWCFB 143
[26] Transcript at [352]
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