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

Case [2023] FWC 1254


[2023] FWC 1254

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

(C2022/2230)

VICE PRESIDENT ASBURY

BRISBANE, 29 MAY 2023

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

  1. 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 Diego Flaksbard. The Respondent is Brisbane Container Terminals Ltd (BCT) T/A Hutchison Ports Australia, Mr Flaksbard’s employer.

  1. 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 Diego Flaksbard, 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 Diego Flaksbard as referred to in subclause 22.1 of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021?”

Answer:

Yes.

  1. 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

<PR762585>

Details
AGLC
Construction, Forestry, Maritime, Mining and Energy Union v Brisbane Container Terminals Ltd (BCT) T/A Hutchison Ports Australia [2023] FWC 1254
Case
[2023] FWC 1254
Decision Date

CaseChat Overview and Summary

The Fair Work Commission (FWC) heard a dispute between the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) and Brisbane Container Terminals Ltd T/A Hutchison Ports Australia (BCT). The MUA, on behalf of its member Mr Diego Flaksbard, applied to the FWC for resolution of a dispute under the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021. BCT had issued a "Letter of Warning" to Mr Flaksbard on 16 May 2022, and the MUA claimed that BCT acted unfairly in doing so, in breach of subclause 22.1 of the Enterprise Agreement.

The central legal issue was whether BCT acted unfairly in issuing the Letter of Warning to Mr Flaksbard. This was assessed against the backdrop of subclause 22.1 of the Enterprise Agreement, which requires that disciplinary action be fair. The FWC had to determine if BCT's actions met the standard of fairness as required by the Agreement. This involved a careful review of the circumstances leading to the issuance of the Letter of Warning, the content of the letter itself, and the application of the relevant provisions of the Enterprise Agreement.

In its decision, the FWC found that BCT did act unfairly towards Mr Flaksbard in issuing the Letter of Warning. The reasoning was based on the specific circumstances of the case, the content of the letter, and the application of subclause 22.1 of the Enterprise Agreement. The FWC concluded that BCT's actions did not meet the standard of fairness required by the Enterprise Agreement. As a result, the FWC ruled in favour of the MUA, finding that BCT had indeed acted unfairly in whole or in part.

The final orders of the FWC will be issued separately, detailing the specific remedies and any further actions required by BCT to address the unfair conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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