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] FWC 6298

[2018] FWC 6298 [Note: An appeal pursuant to s.604 (C2018/6161) was lodged against this decision - refer to Full Bench decision dated 12 December 2018 [[2018] FWCFB 7561] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

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
(C2018/1477)

DEPUTY PRESIDENT BOOTH SYDNEY, 12 OCTOBER 2018

Alleged dispute about any matters arising under the enterprise agreement – whether a person delivering operational training must be covered by the enterprise agreement.

[1] This decision concerns a dispute about who can train operators at the Port Botany site of Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited (Hutchison).

[2] The Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division (MUA) contend that to train an employee covered by the Sydney International Container Terminals Pty Limited (SICTL) and Brisbane Container Terminals Pty Limited (BCT) and Maritime Union of Australia (MUA) Enterprise Agreement 2015 (the Agreement) it is necessary to be an employee who is covered by the Agreement. Hutchison disagrees.

[3] The MUA made an application to the Fair Work Commission (the Commission) to deal with the dispute in accordance with the dispute settlement procedure of the Agreement and s. 739 of the Fair Work Act (the Act). 1 Two conferences were conducted but the dispute was not resolved by conciliation.2

[4] The MUA sought an interim order to restrain Hutchison from conducting practical training at the Port Botany site using people other than those employees covered by the Agreement and who are qualified by experience on a day-to-day basis in the operation of the relevant equipment. 3

[5] Hutchison provided an undertaking to the Commission in the following terms:

“Unless otherwise agreed by the parties or further order of the FWC, SICTL will not, prior to the determination of the matter by arbitration, conduct or seek to conduct practical training on 3 high shuttles at the Port Botany Site using Non Operational Employees to deliver practical training.” 4

[6] I accepted the undertaking and declined the interim order in the form sought by the MUA. Instead I made an interim order, recorded on transcript, that required Hutchison to prepare a weekly training plan and consult with the Port Botany Employee Representative Committee (ERC) on a weekly basis.

[7] The substantive dispute is now before me for arbitration.

[8] The parties agree that the Commission has the power to arbitrate to resolve the dispute and I agree.

[9] I exercised my discretion under s.596 of the Act to allow the MUA and Hutchison permission to be legally represented and Mr Reitano represented the MUA and Mr Brown represented Hutchison. Evidence was given by Mr Mick Cross, Mr Paul McAleer and Mr Paul Keating (Mr Keating was not required for cross examination) for the MUA and by Mr Blair Moses, Ms Harriet Mihalopoulos, Mr Matthew Tenkate and Mr Steve Holland for Hutchison.

[10] The question put forward by the parties for me to answer is:   

“In the circumstances disclosed by the evidence before the Commission and on the proper construction of the Sydney International Container Terminals Pty Ltd (SICTL) and Brisbane International Container Terminals Pty Ltd (BCT) and Maritime Union of Australia Enterprise Agreement 2015 (EA) is it the case that training packages designed for employees covered by the (EA) so as to undertake work covered by the (EA) and the Stevedoring Industry Award 2010 must be carried out by qualified employees covered by the (EA)?” 5

[11] The MUA submit that the answer to the question should be “Yes”. The MUA say that the proper construction of the Agreement means that training for employees covered by the Agreement to enable them to undertake work covered by the Agreement must be carried out by qualified employees covered by the Agreement. Furthermore they say that the parties reached agreement on 16 June 2018 that this was to be the case and the Commission should give effect to this agreement. They also say it would not be safe to do otherwise. Additionally they say that the legislation applying to a Registered Training Organisation (RTO) requires that “a person with current experience in operating the machinery or the equipment or the items to do with the training must be involved in the training”. 6

[12] Hutchison say that the answer to the question should be “No”. They refute the MUA contention about the proper construction of the Agreement. They say to answer the question in the affirmative would require the Commission to make a decision that is inconsistent with a Fair Work Instrument in contravention of s.739(5) of the Act. 7 They do not accept the MUA’s version of the agreement said to have been reached on 16 June 2018, and say even if I find there was such an agreement it is not a Fair Work Instrument as defined by s.12 of the Act. In that circumstance a decision upholding the purported agreement would fall foul of s.739(5).

[13] For the reasons outlined below my answer to the question is “No”.

Background

[14] The evidence concerning training at Port Botany disclosed that there were a number of different types of training carried out by Hutchison.

[15] This training could be broadly divided into two types of training – policy related training and operational training.

[16] Policy-related training includes work, health and safety training, first aid training, email awareness, anti-bribery and corruption and bullying and harassment training. It is apparent that there is no dispute as to the trainers providing this training.

[17] Operational training could be subdivided into two types of training.

[18] The first type of training relates to the issuing of a High Risk Work Licence in accordance with the NSW Work Health and Safety Regulations 2017. The roles referred to in the Agreement that require a High Risk Work Licence (or require that the operator is a person progressing to obtain a High Risk Work Licence) are Heavy Forklift Operator, Crane Operator, Reach Stacker Operator, Team Leader – Ship, Maintenance Operator and Maintenance Tradesman. The cranes in operation at Hutchison Port Botany are either Quay Cranes or Automatic Stacking Cranes (ASC). The training for Quay Crane operator is conducted off-site by Australian Construction Training or IWP Training Pty Ltd. The ASC Operator does not require a High Risk Work Licence due to an exemption received from SafeWork NSW. 8

[19] The conduct of training for the roles requiring a High Risk Work Licence (except for the Quay Cranes) is carried out through an RTO, The Major Training Group.

[20] There is a legislative framework concerning training that includes the National Vocational Education and Training Regulator Act 2011 and the Standards for Registered Training Organisations 2015 (the Standards). This legislative framework governs the operation of RTOs.

[21] The evidence is that The Major Training Group has accredited Mr Steve Holland, who is employed by Hutchison as the Workforce Trainer at Port Botany, to conduct training in accordance with the legislative framework. He is, for this purpose, their agent. 9

[22] Hutchison and The Major Training Group have developed training packages that align with the Australian Quality Training Framework and are known in Hutchison as Licence to Operate a Bridge and Gantry Crane, License to Operate a Forklift, Licence to Operate an Elevated Work Platform (greater than 11 metres) and Licence to Operate a Reach Stacker. 10

[23] The Major Training Group carries out assessment of individuals who have participated in this training. 11

[24] The second type of training is the balance of operational training designed to equip a trainee to perform work that does not require the person to have a High Risk Work Licence.

[25] Industry Training Packages exist that offer nationally recognised qualifications under the Australian Qualifications Framework. These are Certificates II and III in Stevedoring and Certificate IV in Stevedoring Operations developed by the Training and Logistics Industry Skills Council (now called the Transport and Logistics Industry Reference Committee). 12

[26] There is no requirement arising from the legislative framework that an employer in the stevedoring industry must provide Certificates II, III and IV courses in Stevedoring Operations. 13

[27] However, when Certificates II, III and IV courses in Stevedoring Operations are provided by an employer, the training must be delivered by an RTO and the trainee must comply with the provisions of section 1.13 of the Standards, summarised by Mr Cross as follows:

“In accordance with sections 1.13 and 1.14 of the Standards, an RTOs training and assessment may only be delivered by trainers and assessors who have:

a. Certificate IV in Training and Assessment (section 1.14a);

b. The competencies at least to the level being delivered and assessed, for example, the competencies which make up Certificate II, III or IV Stevedoring (section 1.13a);

c. Stevedoring industry skills, for example, on the job experience (section 1.13b); and

d. Current knowledge and skills in vocational training and learning, for example experience as a trainer and educator (section 1.13c).”  14

[28] Evidence was given by Mr Blair Moses and Mr Steve Holland about the delivery of operational training at Port Botany. The evidence was not about training for Certificates II and III in Stevedoring or Certificate IV in Stevedoring Operations but about the delivery of on-the-job training.

[29] The on-the-job training is comprised of four stages: stage 1 – theoretical knowledge imparted by a trainer in an office or training room; stage 2 – familiarisation or introduction to the plant or machinery; stage 3 – physical simulation (both stages 2 and 3 are workplace-based practical skill instruction by a trainer in a controlled area on the site not using a “live” container) and stage 4 – training in a live setting using a “live” container (workplace based operation). 15

[30] The evidence is that employees covered by the Agreement and employees not covered by the Agreement are utilised as trainers at different stages in both types of training.

[31] Operational employees who train other operational employees for the roles requiring a High Risk Work Licence must be the holder of a High Risk Work Licence. 16

[32] Operational employees who train other operational employees are selected because of their subject matter expertise and demonstrated skills and experience in their respective roles with reference to the relevant plant and machinery and are described as Subject Matter Experts. 17

[33] In May 2017 Hutchison embarked upon a project calling for expressions of interest for individuals at the Port Botany site to be trained in four nominated key skills: crane operator, team leader, tower clerk and reachstacker. There were over 300 applications. Hutchison selected 34 individuals from amongst the 300. These roles do not require a High Risk Work Licence.

[34] The MUA disagreed with the process used for the selection. A meeting was held on 16 June 2017 that, amongst other things, addressed this disagreement. Ms Mihalopoulos and Mr McAleer were among the people attending this meeting. 18 At this meeting a new list of 34 individuals was arrived at.19

[35] At this meeting there was also discussion about a disagreement about who would conduct training, among other things.

[36] During this meeting Mr McAleer typed notes on his laptop computer. These notes included: 20

PM 1. All new training has no names placed against it

HM Agreed

2. No manager is to carry out training

HM Agreed

3. Operational employees to carry out training

HM Agreed

Will not be an issue with Tower Clerk

[37] On 21 June 2018 Mr McAleer emailed Ms Mihalopoulos. The subject line of the email was “Agreed matters in addition to the previous agreed matters”. The email read in part: 21

Harriet,

As indicated as a result of last weeks meeting Friday June 16, 2017 the MUA would write to you outlining the agreed outcomes of the meeting.

Can you please ensure that all matters are confirmed prior to any training going ahead.

TRAINING

1. No manager is to carry out training

a. Training manager to coordinate and manage trainers only

2. Only operational employees to carry out training

3. Tower Clerk training

a. will no longer be pass/fail

b. have a subject matter expert deliver training with assistance of trainer until such time as operational employee is qualified to do so

[38] Mr McAleer did not receive a response to this email and came to the conclusion that this meant that the contents of the email were agreed. 22 Mr McAleer believed that the agreement was that all training was to be conducted by “EA employees”.23

[39] Ms Mihalopoulos’ evidence was that she did not respond to Mr McAleer’s email. She said that she did not agree that the email faithfully recorded what was agreed at the meeting but did not respond to the email “because it leads to conflict”. 24

[40] Ms Mihalopoulos gave evidence that there was no agreement that no manager was to conduct any training in the future but that there was agreement that no manager was to conduct training in relation to the training of the crane operator, team leader and reachstacker (tower clerk excluded). That is, the skills that were the subject of the expression of interest (tower clerk excluded) in what she called “that particular training project” 25 and “for that round of training”.26

[41] I asked Ms Mihalopoulos:

“…is it your evidence in relation to the key skills that are referred to in paragraph 32 of your statement that it is correct that there was an agreement that no manager is to carry out training and operational employees are to carry out training?---Yes.” 27

[42] 10 to 14 days after this meeting, training of the 34 employees in the four nominated key skills commenced. 28

[43] The MUA and Hutchison are at odds over what was actually agreed on 16 June 2018 – that managers would not conduct training in the four key nominated skills the subject of the expression of interest in May 2017 or that managers would not conduct any training at all.

[44] The only objective evidence in relation to the agreement – the notes of the meeting taken by Mr McAleer and his follow up email – supports the MUA’s understanding.

[45] In October 2018 another meeting took place at which training was discussed. 29 Mr Keating’s evidence was that he recalled someone from Hutchison saying at the beginning of the meeting “the company would not be able to meet the agreement reached in June, and that Steve Holland, would need to carry out the training together with the other trainers.”30 Ms Mihalopoulos disagreed. In cross examination she said:

“In October, you had a meeting with Mr Keating at which training was discussed, correct?---Yes.

And one of the things that someone from the company said was they wanted to renegotiate the deal that had been done in June, correct?---No, incorrect.” 31

[46] Training of employees in three-high shuttles (straddle carriers) was planned to be carried out on 20 March by Mr Steve Holland, Workforce Trainer. A shuttle is not a piece of equipment that requires a High Risk Work Licence. 32 This training was opposed by the ERC and the MUA. The application that gives rise to this arbitration was then lodged by the MUA.

[47] Mr Holland has never worked as a stevedore. His experience in the stevedoring industry arises from his employment by Hutchison since May 2015. He has experience operating plant and equipment arising from his employment in the construction industry and the snow industry. He has experience operating equipment on the Port Botany site in the course of his role as Workforce Trainer. 33 His qualifications relevant to his role as Workforce Trainer are:34

(a) Certificate IV Training and Assessment;

(b) Safe Work NSW accredited assessor for C2 (slewing mobile crane) Reach stacker Dogging Forklift Elevated Work Platform;

(c) Work Safe QLD accredited assessor for C2 (slewing, mobile crane) Dogging Forklift EWP;

(d) Certificate IV OHS;

(e) Diploma OHS from TAFE NSW;

(f) High Risk Work Licences:

(i) Slewing mobile crane up to 20 tonne

(ii) Slewing mobile crane up to 60 tonne (also encompasses reach stacker)

(iii) Bridge & Gantry crane

(iv) Dogging

(v) Rigging basic

(vi) Rigging intermediate

(vii) Rigging advanced

(viii) Scaffold basic

(ix) Scaffold intermediate

(x) Hoist personnel (also encompasses hoist material)

(xi) Boom type Elevated work platform greater than 11 meter

(xii) Forklift

(g) Statement of attainments for:

(i) Non Slewing Mobile Crane;

(ii) Vehicle Loading Crane;

(iii) Excavator;

(iv) Front End Loader;

(v) Backhoe;

(vi) Skid Steer Loader; and

(vii) Work Safely at Heights.

(h) Elevated Work Platform (Elevated Work Platform Association of Australia) (issuer) for:

(i) vertical lift (VL);

(ii) scissor lift (SL);

(iii) boom type elevated work platform (BL);

(iv) Trailer mounted (TL);

(v) Truck mount (TM); and

(vi) Telescopic Handler,

(i) MR (Medium Rigid) truck licence;

(j) Rail Infrastructure Safety Induction & Pegasus card; and

(k) OHS general induction (WorkCover NSW).

[48] On 20 March 2018 a Provisional Improvement Notice (PIN) was issued by a Health and Safety Representative (HSR), Ben Kreger, in relation to training at Port Botany. The PIN was the subject of a response by SafeWork NSW. SafeWork correspondence dated 21 March 2018 included the following in relation to “alleged incompetence of the training assessor Steve Holland”:

“No evidence was identified which raised concerns in relation to Mr Holland’s ability to perform this task that amounted to an Inspectors reasonable belief of a contravention of the WHS Act 2011 or Regulation 2017”;

[original emphasis]

and the following in relation to “substandard training package which lacks adequate supervision”:

“Provisional Improvement Notice issued by Health and Safety Representative Ben Kreger on 20^th March 2017 (sic) is set aside and cancelled”. 35

What is the proper construction of the Agreement?

[49] In interpreting the meaning of the Agreement I have applied the principles recently summarised in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri). 36 The summary conveniently provided in Berri distils decades of jurisprudence derived from decisions of the High Court of Australia, the Federal Court, State courts and decisions of the Fair Work Commission itself.37

[50] First of all I must consider the language of the Agreement, having regard to its context and purpose, 38 to consider whether the Agreement has a plain meaning or is ambiguous or susceptible to more than one meaning. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.39

[51] Clause 11 of the Agreement reads as follows:

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 or maintain a license 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 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.

[52] The clause must be read as a whole, and in the context of the Agreement.

[53] Clause 11.1 sets out Hutchison’s obligation to train its employees and then qualifies this by limiting the obligation to training that is required to meet its operational/maintenance requirements and its WHS policies and procedures.

[54] Clause 11.3 permits Hutchison to use internal or external training providers, trainers and assessors to fulfil this obligation without the restriction submitted by the MUA. Clause 11.3 on its own does not support the meaning contended for by the MUA.

[55] Clause 11.6 qualifies clause 11.3 by requiring that employees who are trainers (as permitted in clause 11.3) are qualified and deals with what they are to be paid. Hutchison says that “employees” in this clause should not be read down to mean employees covered by the EA because of the definition of employee in the Agreement is not restricted to the employees covered by the EA. 40 I consider that clause 11.6 and 11.7 when read together refer to operational employees. I say this because of the reference in clause 11.6 to “Level 4 rate under this Agreement” and because clause 11.7 concludes with “as part of their normal work”.

[56] These clauses read together do not support the meaning contended for by the MUA. The words “Where employees are required to conduct training and assessment…” at the commencement of clause 11.6 and the words “Employees may also be required to assist with…” at the commencement of clause 11.7 clearly contemplate this as an option, not the only way training is to be conducted. When read with clause 11.3 it is clear that it is an option to be exercised at the discretion of Hutchison.

[57] The MUA say that a trainer sought to be used under clause 11.3 must be limited by applicable safety considerations pursuant to clause 8.2, 8.3 and 8.4 of the Agreement. I agree with that submission.

[58] Clause 8.2 reads as follows:

8.2 It is the intention of all parties to this Agreement to implement the best achievable level of health and safety within the Company’s operations.

[59] Clause 8.3 reads as follows:

8.3 Consistent with the general intention of this Agreement to facilitate and encourage the development of the world’s best practice in all facets of the Company’s operations, all parties are committed to continuous improvement in health, safety and environment standards in the workplace.

[60] Clause 8.4 reads as follows:

8.4 The Company has the primary responsibility to protect the health and safety of its employees, customers, contractors and visitors at all times.

[61] It does not follow from this that a person who is not covered by the EA would necessarily offend this obligation. Therefore this does not support the meaning contended for by the MUA.

[62] Clause 11.4 deals with the Certificate II, III and IV training described above. I consider that this clause means that if an employee successfully completes the Certificate II, II and IV training then Certificates and/or Statements of Attainment must be issued.

[63] The MUA say:

“Foundational to the CFMMEU case is the submission that under the Agreement people must be appropriately skilled or qualified to deliver training.” 41

[64] Although the only use of the term “qualified” in clause 11 is in clause 11.6, and I consider that this clause refers to employees covered by the Agreement, I agree with the MUA that “people must be appropriately skilled or qualified to deliver training.” However I do not accept that the legislative framework is “called up” into clause 11.4 to the effect submitted by the MUA. 42

[65] It is apparent from the evidence that the training in dispute is not training that invokes clause 11.4. The evidence of Mr Cross about the legislative framework was relevant to the conduct of training for Certificate II, III and IV not the training provided by Hutchison.

[66] Whether or not Certificate II, III and IV training is delivered seems to me to be at the discretion of Hutchison. However, if it is, then this clause requires Hutchison to provide for the issuing of Certificates and/or Statements of Attainment to successful trainees. I say this because of the use of the term “where applicable” at the conclusion of the clause. Clause 11.4 does not support the meaning contended for by the MUA.

[67] Clause 11.9 requires Hutchison to develop and maintain a training plan for Port Botany (and Brisbane) and review the training plan at the Monthly Terminal Meetings and 6 monthly site level Review Meetings.

[68] Clause 11.10 provides that there will be an agreed training provider engaged and that training delivery will be undertaken through a registered training organisation.

[69] Reading clauses 11.9 and 11.10 together reveals that the training that the agreed training provider will deliver is the training contained in the training plan. I say this because of the words in clause 11.10 as follows:

“The Training provider will be determined on the standard of services and cost to meet the agreed training plan.”

[my emphasis]

[70] There are two potential grey areas when clauses 11.9 and 11.10 are read together with clause 11.3.

[71] One is that clause 11.3 allows Hutchison to use internal or external training providers, trainers and assessors and clause 11.10 requires that training delivery will be undertaken through a registered training organisation. The evidence was that training delivery could be (and in some cases was) undertaken “through” a registered training organisation by the RTO accrediting employees of Hutchison who actually carried out the training. That clears up the first grey area because it means that an internal training provider could be used through an RTO and the two clauses could be complied with.

[72] The second grey area is that on one reading of clause 11.10 all training is required to be undertaken through an RTO. In cross examination about her understanding of the effect of clause 11.10 Ms Mihalopoulos said that the clause only dealt with training “relating to what is loosely referred to as High Risk Work Licences” 43 and that this meaning was apparent when clause 11.10 was read in conjunction with clause 11.4.44

[73] As addressed above, clause 11.4 says that Certificates and Statements of Attainment arising from the Transport & Logistics Training Package (Stevedoring) or other training packages will be issued where applicable.

[74] It is not obvious from a plain reading of clause 11 that clause 11.4 qualifies clause 11.10 in the manner suggested by Ms Mihalopoulos. The evidence suggests that the kind of training that was necessary to obtain a high risk work licence and the training that might lead to a Certificate or a Statement of Attainment are quite different. As already mentioned no evidence was given about the latter being delivered at Port Botany. Rather, aside from training to achieve a high risk work licence, training was on-the-job training, not the training that might lead to a Certificate or a Statement of Attainment.

[75] On another reading of clause 11.10 if the training plan designates selected training that is to be carried out through an RTO then not all training is required to be undertaken through an RTO.

[76] I consider that the clause is ambiguous in this respect but resolving the ambiguity is not relevant to the question I am required to answer.

[77] In closing submissions the MUA say:

“Clause 11.3 must be read as being facilitative such that people delivering training must be qualified to deliver training and must also fulfil the requirements of clause 11.10. Clause 11.10 requires that there must be an agreed training provider and training delivery must be conducted through a registered training organisation. It is clear on the evidence that the training being conducted by SICTL is not being conducted through an agreed training provider.

…

the inescapable fact for SICTL is that he is not an agreed training provider and therefore the training that he is delivering is not in conformity with the agreement. 45

[78] I note that the “he” in the above extract is referring to Mr Steve Holland.

[79] Even if this is the case it does not support the meaning of the Agreement contended for by the MUA.

[80] The MUA point to the Deed that was entered into between the parties at the time of making the Agreement as an aid to the construction of the Agreement. 46 As there is an ambiguity in the clause I agree with the MUA that the Deed is an objective source that can be used to aid the construction of the Agreement.

[81] The MUA points to clause 8.1 of the Deed which reads:

8.1 No manager will perform any task that falls within the classifications structure of Stevedoring Industry Modern Award 2010 at Schedule B – Grade 1-7 or its equivalent in the event that the Modern Award is varied in the future.

[82] The MUA contends that this bolsters the case for the answer to the question to be “Yes”.

[83] In closing submissions the MUA say:

“Clause 8.1 prohibits any manager performing any task that falls within the Stevedoring Industry Modern Award 2010 or its equivalent. This is important because it prevents a manager in any circumstance from performing such a task which would obviously include demonstrating how something was to be done during a training session. Mr Holland conceded in his evidence he was a manager (PN 327) and not covered by the Agreement. He also said at PN256 and 257:

No, and you haven’t obtained any experience other than as a trainer?---Yes I have.

All right, well pray tell how?---By hopping up in the machine and driving the machine and practising use of the machine, showing other – demonstrating to people how to operate the machinery.

That’s a trainer, sir?---If there’s someone there with me it’s training. If there’s no one there with me it’s me gaining experience and skills in the machine of how to operate it.

When Mr Holland is in the course of training performing tasks that are stevedoring tasks SICTL is in breach of the Agreement because managers are not permitted to perform those tasks.”

[original emphasis]

[84] It is clear from the evidence of Mr Holland that he does not operate machinery for the purpose of carrying out work covered by the Stevedoring Industry Modern Award or the Agreement but rather for the purpose of demonstrating the proper operation of machinery to a trainee. 47

[85] Hutchison submit that the conduct of training is not a task that falls within the classification structure of the Stevedoring Industry Modern Award and accordingly a manager conducting training does not fall foul of clause 8.1 of the Deed. I agree with that submission.

[86] I conclude that clause 8.1 of the Deed does not have the effect submitted by the MUA.

Did the parties reach agreement on 16 June and if so, should the agreement be effected by the Commission?

[87] The MUA says that the agreement reached on 16 June was reached pursuant to the application of clause 13 (Issue Resolution) of the Agreement and as such should be given effect to by the Commission.

[88] I conclude that there was an agreement reached on 16 June 2018. I accept that Ms Mihalopoulos believed that it was in relation to the key skills and Mr McAleer believed it was in relation to all training. As already indicated I consider that the objective evidence supports Mr McAleer’s belief. What is the effect of the agreement on my decision?

[89] The MUA says:

“Clauses 13.2 and 13.4 in particular, should also be seen as limitation on the operation of clause 11.3 – that is, where a dispute has been resolved about the application of that clause and the parties by agreement or the Commission by arbitration has resolved that dispute that resolution should be regarded as binding as to the operation of the clause.

….

The CFMMEU submits that the Commission should give full effect and be faithful to the issue resolution clause of the Agreement (clause 13) by holding SICTL to the agreement of 16 June 2017 which resolved the matters in dispute. The resolution of the matter achieved on 16 June 2017 ‘resolved the matter’ and that resolution should be given effect to. Any other course would undermine the efficacy of clause 13 and would be contrary to the intention of the clause. In short, the Commission should not permit SICTL to depart from the agreement achieved in settlement of the dispute.” 48

[90] I reject this submission. I have found that the proper construction of the Agreement means that training must be conducted by a person who is qualified to do so. I have found the Agreement does not require that to be qualified a person must be an employee covered by the Agreement. Accordingly to make a decision that bound the parties to the agreement of June 16 2018 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.

[91] The scheme of the Act is designed to allow variations to enterprise agreements in accordance with the Act. Section 208 pf the Act requires the employer to request employees to approve the variation. If representatives of employees could reach an agreement in settlement of a dispute that changed the meaning of an enterprise agreement and have the Commission sanction that agreement it would not be necessary to vary enterprise agreements, and that does not seem to me to sit comfortably with the scheme of the Act.

Would it be unsafe to answer “No”?

[92] The evidence on behalf of the MUA in relation to the contention that it would be unsafe to answer “No” largely relates to the experience of Mr Holland to conduct training. SafeWork NSW has found that it is not unsafe for Mr Holland to conduct training and there is nothing before me that would cause me to contradict this finding.

[93] In the circumstances revealed by the evidence before me I do not consider that the delivery of training so as to contribute to the safe operation of stevedoring plant and equipment must be carried out by a person who is covered by the Agreement. As stated, I do consider that a person delivering training must be qualified to do so. A person who is covered by the Agreement may or may not be qualified to do so. Equally a person not covered by the EA may or may not be qualified to do so.

Conclusion

[94] I consider that the proper construction of clause 11 means that a person conducting training must be qualified and this includes conducting training safely in accordance with the Agreement. I consider that a person who was not experienced in operating the plant and machinery being trained for would not meet the definition of “qualified” but the manner in which this experience is acquired and kept up to date does not have to be by being employed as an operator. That said I consider that current experience in operating the plant and machinery, acquired in the course of working as a stevedore, is a highly desirable attribute of a person involved in the training of stevedores. However I conclude that there is no support in the circumstances revealed by the evidence or on the proper construction of the Agreement for the proposition that the term “qualified” is restricted to a person who is covered by the Agreement.

[95] The involvement of employees who are covered by the Agreement in a training regime as described by Mr Holland appears very sensible to me. It seems to me that the more employees who are experienced operational employees, respected by their peers and trained in the delivery of training, are integrated into the whole training regime the better.

[96] It also seems to me that it is in the common interest of Hutchison, its employees and the MUA to build the operational capability of employees to contribute to a safe place of work and to provide employees with skills and knowledge that support their livelihoods and career paths.

[97] It is disappointing that a dispute that turns on a binary proposition has undermined the ability of Hutchison, the ERC and the MUA to work together to develop and resource a training regime designed to meet this interest.

[98] I urge the parties to focus on their common interest and work together to create a viable business that provides secure and rewarding employment.

[99] However, my decision is directed to answering the question posed and for the reasons outlined above my answer to the question is “No”.

[100] The interim order made on 3 April 2018 is revoked.

DEPUTY PRESIDENT

Appearances:

Mr R Reitano for the Applicant.

Mr P Brown and Ms M Cui for the Respondent.

Hearing details:

2018.

Sydney:

3 April.

8 June.

22 August.

Final written submissions:

For the Applicant, 8 October 2018.

For the Respondent, 27 September 2018.

Printed by authority of the Commonwealth Government Printer

<PR701214>

 1   Application lodged 20 March 2018.

 2   Conciliation held 22 and 28 March 2018.

 3   Transcript 3 April 2018 PN23.

 4   Transcript 3 April 2018 PN103.

 5   Email from Ms S Danalis of 13 April 2018.

 6   Transcript of 8 June 2018 PN250.

 7   Respondent’s Written Submissions of 27 September 2018.

 8 Statement of Blair Moses of 29 May 2018 at [11].

 9   Transcript of 8 June 2018 PN978 and PN991.

 10 Statement of Blair Moses of 29 May 2018 at [13].

 11 Ibid at [15].

 12 Statement of Michael Cross of 14 May 2018 at [5].

 13   Statement of Blair Moses of 29 May 2018 at [19] and [23].

 14 Statement of Michael Cross of 14 May 2018 at [8].

 15   Statement of Steve Holland of 19 June 2018 at [29]; Transcript of 8 June 2018 PN1025.

 16   Statement of Steve Holland of 19 June 2018 at [37-39].

 17   Transcript of 22 August 2018 PN 294.

 18   Statement of Harriet Mihalopoulos of 29 May 2018; Transcript of 8 June PN635-649.

 19   Transcript of 8 June 2018 PN757.

 20   Annexure PM4 to the Statement of Paul McAleer of 14 May 2018.

 21   Ibid.

 22   Transcript of 8 June 2018 PN815-816.

 23   Transcript of 8 June 2018 PN771-773.

 24   Transcript of 8 June 2018 PN1158 and PN1165.

 25   Transcript of 8 June 2018 PN1169-PN1170.

 26   Transcript of 8 June 2018 PN1193.

 27   Transcript of 8 June 2018 PN1262.

 28   Transcript of 8 June 2018 PN1281.

 29   Transcript of 8 June 2018 PN1301.

 30   Statement of Paul Keating of 6 June 2018.

 31   Transcript of 8 June 2018 PN1301-1302.

 32   Transcript of 22 August 2018 PN286.

 33   Transcript of 22 August 2018 PN167-179, 211-212, 228 and 255-257.

 34   Statement of Steve Holland of 19 June 2018.

 35   Annexure BM6 to the Statement of Blair Moses of 29 May 2018.

 36 “Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (2017) 268 IR 285.

 37 Ibid at [114].

 38   Ibid, Principle 7.

 39   Ibid, Principle 8.

 40   Respondent’s Written Submissions of 27 September 2018 at [9]-[10].

 41 Applicant’s Written Submissions of 12 September at [6].

 42   Ibid.

 43   Transcript of 8 June 2018 PN1204.

 44   Transcript of 8 June 2018 PN1209.

 45   Applicant’s Written Submissions in Reply of 8 October 2018.

 46   Annexure PM3 to the Statement of Paul McAleer of 3 April 2018.

 47   Statement of Steve Holland of 19 June 2018 at [35] and [36].

 48   Applicant’s Written Submissions of 12 September 2018 at [18] and [25].