Construction, Forestry, Maritime, Mining and Energy Union v Brisbane Container Terminals Ltd (BCT) T/A Hutchison Ports Australia

[2023] FWC 1253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v

Brisbane Container Terminals Ltd (BCT) T/A Hutchison Ports Australia

(C2022/2229)

VICE PRESIDENT ASBURY

BRISBANE, 29 MAY 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]

This Decision concerns an application made by the Maritime Union of Australia Division (MUA) of the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s. 739 of the Fair Work Act 2009 for the Fair Work Commission (the Commission) to deal with a dispute under the dispute resolution procedure in Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (the Agreement). The dispute is notified by the MUA on behalf of its member, Mr Trevor Wallin. The Respondent is Brisbane Container Terminals Ltd (BCT) T/A Hutchison Ports Australia, Mr Wallin’s employer.

The agreed question for determination and my answer to that question are as follows:

Question:
“In the circumstances of this Application, in issuing the letter to Mr Trevor Wallin, dated 16 May 2022 (and described as a “Letter of Warning”), did Brisbane Container Terminals Limited act “unfairly” (in whole or in part) towards Mr Trevor Wallin as referred to in subclause 22.1 of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021?”
Answer:
Yes.

Reasons for Decision will be issued separately.

VICE PRESIDENT

Appearances:

Mr K Bond of the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union, the Applicant.
Mr P Brown of Baker & McKenzie, for the Respondent.

Hearing details:

2022.
Brisbane.
13, 14 September.

Final written submissions:

Applicant, 1 November 2022.
Respondent, 15 November 2022.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Maritime Union of Australia Division (MUA) of the Construction, Forestry, Maritime, Mining and Energy Union, on behalf of its member Mr Trevor Wallin, against his employer, Brisbane Container Terminals Ltd (BCT) T/A Hutchison Ports Australia. The matter was referred to the Commission by the MUA for resolution of a dispute arising under the enterprise agreement and the National Employment Standards. Specifically, the question for determination was whether BCT acted unfairly towards Mr Wallin when issuing a letter of warning on 16 May 2022. The Commission found that BCT did indeed act unfairly towards Mr Wallin in issuing the letter of warning, and reasons for this decision will be issued separately.

The legal issue at the heart of this case was whether BCT acted unfairly towards Mr Wallin in issuing the letter of warning. The MUA argued that BCT's conduct in issuing the letter amounted to an unfair act under subclause 22.1 of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021. BCT, on the other hand, contended that the letter was issued in accordance with the terms of the enterprise agreement and that there was no unfairness on its part. The Commission had to determine whether the letter of warning was issued unfairly, and if so, to what extent.

In reaching its decision, the Commission considered the terms of the enterprise agreement, the context in which the letter of warning was issued, and the nature of the conduct complained of. The Commission found that BCT did act unfairly towards Mr Wallin in issuing the letter of warning. The reasons for this decision will be provided in a separate document.

No final orders were made in this decision as the matter was referred back to the Commission for further consideration of the appropriate remedy. The Commission will issue a further decision on the appropriate remedy in due course.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established