Construction, Forestry, Maritime, Mining and Energy Union v Brisbane Container Terminals Pty Ltd
[2021] FWC 6233
•17 DECEMBER 2021
| [2021] FWC 6233 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union
v
Brisbane Container Terminals Pty Ltd
(C2021/4968)
DEPUTY PRESIDENT BULL | SYDNEY, 17 DECEMBER 2021 |
S.739 application to deal with a dispute - whether enterprise agreement reflects agreement reached – whether employer complied with obligations under enterprise agreement.
[1] In this matter, the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) has made an application pursuant to s.739 of the Fair Work Act 2009 (the Act) in respect of a dispute with Brisbane Container Terminals Pty Ltd.
[2] The F10 Application named Sydney International Container Terminals Pty Limited (SICTL) and Brisbane Container Terminals Ltd (BCT) as the respondents, however this was later amended pursuant to s.586 of the Act 1 to name only Brisbane Container Terminals Pty Ltd as the respondent.
[3] The application seeks to have the Fair Work Commission (the Commission) resolve a dispute relating to the conversion of a group of casual employees who are employed at the Port of Brisbane Facility by Brisbane Container Terminals Pty Ltd, in accordance with clause 14 – Issue Resolution of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (the Agreement). 2
[4] On 9 August 2021, the Commission approved the Agreement, and the Agreement came into operation from 16 August 2021. 3
[5] The Agreement names two companies; Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd [jointly known as Hutchinson Ports Australia (HPA)] as parties to the Agreement, together with the MUA and employees of HPA engaged at Port Botany and the Port of Brisbane in the stevedoring classifications set out in the Agreement.
[6] This dispute concerns application of the Agreement by BCT only.
[7] The matter was subject to telephone conferences before the Commission on 1, 9 and 22 September 2021 and a hearing via Microsoft Teams on 27 October 2021. Both parties were granted permission to be legally represented pursuant to s.596(2)(a) of the Act.
Questions for arbitration
[8] On 14 September 2021, the MUA provided three questions that it wanted arbitrated by the Commission: 4
1. At the commencement of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (Agreement), is the respondent required to first appoint all primary pool or pool A supplementary employees employed at the Port of Brisbane to permanent part – time employment, and subsequently to permanent full – time employment, before it may appoint secondary pool or pool B supplementary employees employed at the Port of Brisbane to permanent part – time employment, and subsequently to permanent full – time employment?
2. At the commencement of the Agreement, is the respondent required to apply, and comply with, the Selection Criteria Processes in clauses 10.6 to 10.9 of the Agreement to the higher level appointment of primary pool or pool A and/or secondary pool or pool B supplementary employees employed at the Port of Brisbane to permanent part – time employment, and subsequently to permanent full – time employment?
3. If the answer to question 2 is yes in relation to primary pool or pool A and/or secondary pool or pool B supplementary employees, did the respondent apply, and comply with, the Selection Criteria Processes in clauses 10.6 to 10.9 of the Agreement to the higher level appointment of primary pool or pool A and/or secondary pool or pool B supplementary employees employed at the Port of Brisbane to permanent part – time employment, and subsequently to permanent full – time employment, in August and September 2021?
Background
[9] The dispute between the parties concerns BCT’s restructuring of its casual workforce at its Brisbane Container Terminal (Terminal) and its call for Expressions of Interest (EOI) from two different pools of employees (Pool A and Pool B) for appointment to Permanent Part-Time (PPT) and Permanent Full-Time (PFT) positions on 2 August 2021. 5
[10] It is contended by the MUA that there was an agreement reached between the MUA and BCT during the negotiations for the Agreement that at the commencement of the Agreement, BCT was required to first convert or appoint all Pool A employees employed at the Terminal to 48 PPT positions and four PFT positions, before it could then appoint any Pool B employees employed at the Terminal to any of the 48 PPT positions through an EOI and in accordance with the selection processes in clause 10 of the Agreement. 6
[11] BCT on the other hand submits that it was never agreed, nor is it reflected in the Agreement that upon creation of the PPT and PFT positions, the positions would be guaranteed to Pool A casual employees to the exclusion of Pool B casual employees at the Terminal. 7
[12] On 3 September 2021, based on its understanding, BCT offered some Pool B employees employed at the Terminal PPT positions without first appointing all Pool A employees employed at the Terminal to PPT or PFT positions.
MUA’s evidence
[13] The MUA relied on the witness evidence of:
• Warren Smith, MUA Deputy National Secretary;
• Kerryn Loose Jones, MUA Delegate; and
• Paul Petersen, MUA Assistant Queensland Branch Secretary.
[14] Only Mr Smith and Ms Loose Jones were required for cross-examination.
Evidence of Warren Smith
[15] Mr Warren Smith provided two witness statements and was subject to cross-examination.
[16] Mr Smith as the Deputy National Secretary of the MUA is responsible for the industrial interests of members at a national level, including representing the industrial interests of members employed by BCT. 8
[17] Mr Smith stated that SICTL and BCT respectively employ employees at the Port Botany Terminal and the Brisbane Terminal to perform stevedoring and maintenance duties under the terms of the Agreement. The MUA is covered by the Agreement. 9
[18] Mr Smith stated that the MUA, SICTL and BCT were parties to an earlier enterprise agreement known as the Sydney International Container Terminals Pty Limited (SICTL) and Brisbane Container Terminals Pty Limited (BCT) and Maritime Union of Australia (MUA) Enterprise Agreement 2013 (2013 Agreement). Sub-clauses 6.4 to 6.5 of the 2013 Agreement provided as follows:
“Recruitment
6.4 The Company will select and recruit employees to fill the internal workforce requirements at each Terminal at the commencement of operations.
6.5 Subsequent vacancies, including promotional opportunities, as they arise will be filled by trained and suitable people within the business, where available. However, where trained and suitable personnel are not available, a vacancy may be filled by merit-based recruitment from outside the existing workforce, at the Company's discretion.” 10
[19] Mr Smith’s evidence was that in August 2015, 56 stevedores employed at the Port Botany Terminal and 41 stevedores employed at the Brisbane Terminal were advised by text message that their positions would not be retained. Prior to the terminations, Mr Smith’s evidence was that the MUA filed a dispute in the Commission and following several conciliation conferences the MUA, SICTL and BCT all agreed to enter into negotiations for a new Agreement which he participated in. 11
[20] On 18 November 2015, the Sydney International Container Terminals Pty Limited (SICTL) and Brisbane Container Terminals Pty Limited (BCT) and Maritime Union of Australia (MUA) Enterprise Agreement 2015 (2015 Agreement) was approved. 12
[21] Clause 6 of the 2015 Agreement provided:
“Recruitment
6.3 Vacancies, including promotional and permanent Level 4 appointment opportunities as they arise, will be filled by trained and suitable people within the business, where available.
6.4 The Company will apply appropriate merit based promotion and selection criteria to its recruitment and selection processes and procedures. The selection criteria to apply in relation to permanent appointment and promotion are set out in Schedule 7.
6.5 Applicants in the process as detailed above will be appointed in the following order:
1. Permanent Full Time Employee
2. EVRA Casual - (available)
3. EVRA Casual - (deferred)
6.6 If the casual labour pool is required to be replenished the Parties will reach agreement on the recruitment process. Within that context, the Parties to this Agreement will use their best endeavours to ensure that interviews for future employment will have candidates of both genders and indigenous persons.” 13
[22] Mr Smith states that, whilst negotiating for the 2015 Agreement, the MUA, SICTL and BCT negotiated and finalised a Deed of Agreement dated 17 November 2015 (2015 Deed). 14
[23] Mr Smith referred to clause 7 of the Deed which states:
“ADDITIONAL LABOUR/DISPLACED WORKERS COVERED BY THE NEW ENTERPRISE AGREEMENT
7.1 Where a vacancy cannot be filled from within the existing workforce, it will be filled by merit-based recruitment from within the other agreed labour pools, at the company's discretion.
7.2 Applicants in the process as detailed above will be appointed in the following order;
1. Permanent Full Time Employee
2. EVRA Casual- (available)
3. EVRA Casual - (deferred)
4. Other Agreed Labour Pools
7.3 For the avoidance of doubt, the following arrangements will apply to other Agreed Labour Pools.
7.4 When the Company requires to recruit additional labour, the Company will notify the relevant MUA National Official along with the Branch Secretary in the affected Port of the requirement.
7.5 The Parties will discuss and agree on the number of people required and the MUA will provide resumes for the Company to choose from. The MUA recognise that it cannot disagree with the numbers to be recruited unless it can be demonstrated that the proposed recruitment numbers will undermine the job security of Hutchison employees to the extent that Phase 1 or Phase 2 hours per week cannot be met.
7.6 The Company recognise that by successfully attracting business within the industry, experienced, trained and qualified stevedoring workers will be displaced. On this basis, the Company will recruit from these displaced workers through a merit based selection process.
7.7 Hutchison also recognise that maritime workers displaced in other sectors such as but not limited to seafarers, linesman and port workers are also qualified and experienced in working on or with vessels and will also be considered for employment.
7.8 Where the MUA is unable to provide the appropriate number of suitable personnel, the Company may with the agreement of the MUA recruit externally.
7.9 The Parties will also consider through the life of the Agreement the possibility of agreed short term arrangements for casuals to supply labour for short term peak labour demands. The Parties will only implement these arrangements where there is agreement between the Parties.” 15
[24] As well as prioritising the re-employment of former employees who had accepted voluntary redundancies, Mr Smith’s evidence was that subclauses 6.3 to 6.6 of the 2015 Agreement and clause 7 of the 2015 Deed ensured that the MUA’s agreement would be required if the casual labour pool was required to be replenished. Accordingly, Mr Smith stated that agreement would need to be reached on the numbers of external casual employees recruited and the recruitment process for that future casual labour pool. 16
[25] Mr Smith stated that on 26 February 2020, SICTL and BCT lodged a dispute with the Commission pursuant to the dispute settling procedure of the Agreement. The dispute concerned the alleged need for SICTL and BCT to replenish the casual labour pool to meet anticipated business needs at Port Botany and the Brisbane Terminal and the alleged failure by the MUA to make genuine attempts to reach an agreement regarding this dispute. Mr Smith said that following two conciliation conferences, SICTL and BCT discontinued the matter and the dispute remained unresolved. 17
[26] Mr Smith stated that in or around June 2018, an issue around casual or ‘supplementary’ labour was identified by the Employee Representative Committee (ERC), the MUA and BCT. At the Brisbane Terminal the parties agreed to create two ‘pools’ of casual labour, Pool A and Pool B, to address casual labour availability issues. Mr Smith said he did not attend the meetings where this approach was agreed, but was informed by reports from Mr Paul Petersen, the Queensland Divisional Assistant Branch Secretary.
[27] Mr Smith said Pool A consisted of casual employees whose main form of employment was with BCT and Pool B consisted of casual employees who had other forms of employment and relied on BCT for supplementary income only. 18
[28] Mr Smith said that he understood from Mr Petersen that the ERC, BCT management and the Queensland Divisional Branch officials developed an agreed approach where Pool A employees were to be allocated to shifts first, followed by Pool B employees, to ensure casual labour allocation could be more reliably organised. 19
[29] Mr Smith stated that bargaining for an agreement to replace the 2015 Agreement began on 26 September 2018. Mr Smith participated in the bargaining however the bargaining was impacted by the Covid-19 pandemic in 2020. 20
[30] On 9 June 2021, Mr Smith said he emailed and hand delivered Ms Harriet Mihalopoulos, the General Manager - Human Resources & Industrial Relations at HPA, a letter outlining the MUA’s summary of the bargaining position that had been reached at the end of the bargaining meeting on 8 June 2021. 21
[31] Mr Smith submitted that the letter under the heading PPT Upgrades reflected the agreed position throughout bargaining meetings to take effect from the commencement of the 2021 Agreement. The agreed position was that four PFT positions would be filled from the current ‘Pool A’ casual employees at BCT through an EOI process using the selection criteria in the 2021 Agreement, and 48 PPT positions would be filled automatically from the current ‘Pool A’ casual employees at BCT and any remaining part-time positions would be filled from the current ‘Pool B’ casuals at BCT through an EOI process using the selection criteria outlined in the 2021 Agreement. 22
[32] Mr Smith added that discussions regarding the selection of the Pool A supplementary employees to the four PFT roles and the conversion of Pool A supplementary employees to 48 PPT positions was discussed regularly throughout the three years of negotiations. Mr Smith stated that he did not recall any occasion where HPA changed its position or suggested a different approach to the agreed conversion of the 48 supplementary employees in Pool A to PPT roles at the commencement of the new Agreement. 23
[33] On 9 June 2021, Ms Mihalopoulos replied to Mr Smith’s letter of the same day and upon reading her reply, which included the word ‘Agreed’ (under the heading PPT Conversion), Mr Smith’s evidence was that the phrase Permanent Part Time Upgrades that he had used and PPT Conversion were used interchangeably throughout the negotiations. Where the word ‘Agreed’ had been used in Ms Mihalopoulos’s response, he concluded that these matters were resolved. Ms Mihalopoulos’s correspondence outlined five remaining issues to be discussed between herself and Mr John Willy, Chief Executive Officer of HPA. These were:
• Technological Change;
• Maintenance Upgrades;
• Maintenance Salaries;
• Recruitment; and
• Brisbane Level 5. 24
[34] On 10 June 2021, Mr Smith replied to Ms Mihalopoulos’ response based on his understanding that everything else was agreed to by HPA. Mr Smith submitted that in his response he was addressing the five outstanding issues and his email to Ms Mihalopoulos on 10 June, was not a withdrawal of his email on 9 June 2021. 25
[35] Mr Smith said that from around 24 June 2021 to around 30 June 2021, he met with Mr Willy (via Zoom) on several occasions and exchanged numerous phone calls and email correspondence in an attempt to resolve outstanding matters. Mr Smith submitted that at no stage during his conversations with Mr Willy was a change to the agreed PPT conversion discussed. Mr Smith said Mr Willy did not challenge the agreed outcomes and sought only to discuss the outstanding issues. According to Mr Smith, the discussions he had with Mr Willy concerned the exact wording of clauses that the parties has not reached agreement on.
[36] Following the discussions, a final agreement was reached between the parties, which resulted in the making of the new Agreement. 26
[37] Mr Smith stated that from approximately 26 July 2021 to the time of approval of the Agreement, he spoke to Ms Mihalopoulos on several occasions over the phone and there was never any mention that BCT had altered its position with respect to converting PPT positions from the Pool A casuals at BCT. 27
[38] Mr Smith stated that the selection criteria used by BCT changed from the 2015 Agreement to what is in clause 10.6 to 10.9 of the Agreement. Mr Smith submitted that at the time the PPT conversion came into effect, all Pool A casual employees at BCT would be converted to PPT employees by default and by agreement. 28
[39] Mr Smith stated that, shortly prior to the approval of the Agreement, he was informed by Mr Paul Petersen that BCT was outlining a contrary position than what had been agreed regarding the PPT conversion. Mr Smith was informed by Mr Petersen that at a meeting on 9 August 2021 (the Agreement was approved on 9 August 2021) BCT requested to start the roster and other conditions of the Agreement a week later than agreed. During this meeting, the MUA suggested that if BCT converted the Pool A supplementary employees as agreed, they could allow the delayed commencement. However, BCT refused to agree, resulting in Mr Petersen putting this matter into dispute on 11 August 2021. 29
[40] Mr Smith submitted that he subsequently spoke with Ms Mihalopoulos regarding the casual conversion to the following effect:
Mihalopoulos: The company are going to use the selection criteria to determine the outcome of who will get PPT positions.
Smith: No, that’s not the agreement we had. We agreed that the 48 Pool A supps would convert to the 48 PPT positions. That’s why we agreed on the number 48.
Mihalopoulos: We are going to use your objective selection criteria and many of the Pool A casuals will then be ineligible. 30
[41] Mr Smith said that the MUA attempted to resolve this dispute through discussions with the local ERC, the Queensland Branch, National Officials, and representatives of BCT. As this was unsuccessful, the MUA lodged its dispute application with the Commission. Mr Smith states that during discussions over this issue BCT asserted that it had told the MUA and its workforce via company memos that it had altered its position regarding PPT conversion. Mr Smith stated that he was not aware of any correspondence where this change of position was referenced. 31
[42] Mr Smith submitted BCT never communicated its alleged change of position regarding PPT conversion from what had been the accepted and agreed during bargaining. 32
[43] In response to the witness statement of Ms Mihalopoulos, Mr Smith stated that three items agreed to between the parties in previous bargaining meetings were Grading/Levels; HSR numbers; and Contractor Clause. It was stated that these matters resulted in amendments to the Agreement as they were all agreed. 33
[44] Mr Smith rejected Ms Mihalopoulos’ claim that there was no agreement reached at the meeting on 8 June 2021 to the effect that 48 new PPT positions would be filled in such a way where “Pool A to be given priority for conversion over employees from Pool B.” Mr Smith stated that the topic of expressions of interest was not discussed at this meeting because it had been previously agreed that no Pool A employees would have to apply for PPT conversion by way of an expression of interest. 34
[45] It was Mr Smith’s evidence that whatever the status of other matters the subject of bargaining, the conversion of Pool A casual employees to PPT employment at the commencement of the Agreement was agreed on 8 June 2021. The conversion issue was not discussed again in bargaining and until the ballot for and making of the Agreement in July 2021. 35
Evidence of Kerryn Loose Jones
[46] Ms Loose Jones who provided two witness statements is an elected MUA delegate for MUA members at the Terminal. 36 Ms Loose Jones is also a member of the MUA Queensland Divisional Branch Committee.
[47] Ms Loose Jones stated that she began working as a casual stevedore for BCT in about January 2017, and in mid-September 2021 she was converted to a PPT-G16 stevedore, following the commencement of the Agreement on 16 August 2021. 37
[48] Ms Loose Jones stated that a casual stevedore is assumed to be available to work shifts unless they have notified BCT that they are unavailable for certain shifts. Casuals are sent a text message before 3pm every day informing them if they have been allocated to a shift the next day or if they are not required. 38
[49] Ms Loose Jones was first employed under the 2015 Agreement, which was replaced by the current Agreement. It was Ms Loose Jones’ evidence that casual employees are described as Supplementary Employees under the Agreement, and the category of G16 refers to a guarantee of 16 hours of work per week under Schedule 6 of Part B of the Agreement. 39
[50] Ms Loose Jones states she was a member of the ERC at BCT from about September 2018 until September 2020. The ERC arranges monthly meetings with BCT management to discuss concerns raised by members and issues that management raise. Ms Loose Jones said that she usually took notes at the ERC meetings for future reference. 40
[51] Regarding the establishment of casual labour Pools A and B, Ms Loose Jones stated that she attended an ERC meeting on 7 June 2018 with Paul Petersen, MUA Organiser (at the time), Terry Rosengarten, BCT Terminal Manager, Rajan Samidurai, BCT Terminal Manager, Trevor Wallin, ERC Delegate and Anthony Crookall, ERC Delegate. At the meeting, the proposal of Pool A and Pool B order of pick for casuals was discussed.
[52] Ms Loose Jones stated that BCT was wanting to increase the number of casuals in the labour pool as there were some casuals that were not available to work shifts as they had other employment, and that BCT argued that by increasing the casual labour pool they would have enough employees when needed. 41
[53] Ms Loose Jones also stated that at this meeting, the ERC argued that having a Pool A of casual labour whose primary employment was with BCT would ensure that they receive priority in the order of pick when labour was allocated to shifts. It was proposed that Pool B employees would consist of casual employees who are less frequently available due to other employment. 42
[54] Ms Loose Jones stated that the purpose of the division of labour pools was to ensure stability in employment and a guarantee of hours for the Pool A casuals who dedicated most of their availability to BCT and to provide certainty of labour supply to BCT. It was Ms Loose Jones’ evidence that it was agreed with BCT management that casuals who were less frequently available and any new casuals employed by BCT would be allocated to Pool B. 43
[55] Ms Loose Jones stated that when management was asked about whether the proposal was acceptable at the 7 June 2018 meeting, Mr Samidurai said words to the effect of: “As long as it works for the company.” Ms Loose Jones took this as meaning that the proposal was agreed. 44
[56] During this meeting, Ms Loose Jones stated that the possibility of Pool A employees converting to PPT employment was discussed, and the BCT position was that it would only consider such a proposal when enterprise agreement negotiations commenced. 45
[57] Ms Loose Jones said that negotiations to replace the 2015 Agreement commenced in or around late 2018 and she was on the MUA Agreement negotiations team representing casual labour pools and female employees. 46
[58] Following the 7 June 2018 meeting, Ms Loose Jones attended a meeting where a proposed points system to govern the allocation of casual labour to Pool A or Pool B was presented to the membership for a vote. The proposal was endorsed by a show of hands and was subsequently implemented. Ms Loose Jones said that BCT management were at all times aware of the points system and the method of allocation from Pool A and Pool B. 47
[59] Ms Loose Jones said that the purpose of the points system was to equalise earnings amongst the casual labour pool to guarantee hours of work. Ms Loose Jones’ evidence was that under the system, points would be given against a casual’s name for hours worked and allocated shifts not worked to see who was more available. Those who were more frequently available to work allocated shifts were put into Pool A and new casuals and those less frequently available were put into Pool B. 48
[60] On 12 June 2018, Ms Loose Jones stated that the ERC met and, towards the end of the meeting, the Pool B casuals were discussed. Mr Samidurai stated that BCT wanted to employ 15 new casual employees externally to be allocated to Pool B as more employees needed to be available to the work larger vessels. 49
[61] Ms Loose Jones stated that the ERC also met on 22 August 2018 and the points system was discussed to see if there were any concerns from BCT. Ms Loose Jones stated that BCT management did not raise any concerns with the system.
[62] Ms Loose Jones stated that the points system was of benefit to BCT as it incentivised the casual labour pool to make themselves available for work. 50
[63] When asked if BCT had any concerns regarding the points system or the Pool A and Pool B casual labour pools, Ms Loose Jones stated Mr Samidurai said words to the effect of: “I will leave it to the [shift] allocator”. 51
[64] According to Ms Loose Jones, between this meeting and the commencement of enterprise bargaining in late 2018, BCT did not raise any significant issues about the points system or the Pool A and Pool B casual labour pools. 52
[65] Ms Loose Jones stated that the points system was administered by the shift allocators daily and the data was also sent to payroll. Ms Loose Jones was the administrator of a private Facebook group for MUA members at BCT and the points data and list of Pool A and Pool B casual employees was posted on the Facebook group daily. 53
[66] Ms Loose Jones stated that in about April 2020, BCT stopped allocators from moving employees between Pool A and Pool B. 54
[67] On 27 May 2020, Ms Loose Jones posted on the Facebook group updating the rules on the points system for Pool A and Pool B casual labour. This post was said to clarify the availability conditions that attached to allocation to the casual labour Pool A and restricted Pool A to a maximum of 50 employees at any one time. 55
[68] On 23 June 2020, Ms Loose Jones stated that she sent a post and a poll to MUA members employed as casuals at BCT via the Facebook group updating them on the rules of the points system for ‘Pool A’ and ‘Pool B’ and asked them to vote on the arrangement. The majority endorsed the rules and they were voted up and prepared to present to the next ERC meeting. 56
[69] On 20 October 2020, Ms Loose Jones stated that the ERC met and the issue of Pool A and Pool B was raised and the priorities for training Pool A casuals over new Pool B casuals was discussed. A copy of the updated rules on Pool A and Pool B casuals was presented to BCT. 57
[70] Ms Loose Jones outlined that the 2015 Agreement and the 2021 Agreement consist of Part A and Part B. According to Ms Loose Jones, Part A consists of matters that cover both SICTL in Sydney and BCT in Brisbane, whereas Part B negotiations cover local terminal based issues, including roster arrangements and categories of employments. Ms Loose Jones states she attended every Part A and Part B (BCT) negotiation meeting. 58
[71] Ms Loose Jones said that the issue of PFT and PPT conversion was first raised at enterprise agreement negotiation meetings held in Sydney on 21, 22 and 23 November 2018. Mr Petersen asked when BCT casual employees could have a guarantee of hours.
[72] At Part A negotiation meetings held on 23 and 24 January 2019, the BCT roster, casuals and guaranteed hours for casuals was briefly discussed. At a meeting on 7 February 2019, casual conversion to PPT was discussed, including the comparison of costs of having about 70 casuals compared with adding more PPT positions. At a Part B negotiation meeting for BCT held on 30 April 2019, Ms Loose Jones states that Ms Mihalopoulos said that HPA was not opposed to having a percentage of casuals put onto a guarantee of hours. 59
[73] On 31 May 2021, Mr Smith forwarded Ms Loose Jones an email sent to him by Ms Mihalopoulos responding to a proposal on how casuals from Pool A and B at BCT would be converted to the permanent roles. In this email, Ms Mihalopoulos said:
“We can discuss your proposal regarding the selection of Brisbane PPT employees further when we speak. Generally speaking your proposals can be worked with, subject to some exclusions for A Pool casuals who periodically take time off to go to sea or those that are on PMD’s.” 60
[74] Ms Loose Jones stated that in response to this email, she sent an email to Mr Smith and the Part A Committee on 31 May 2021 to assure him that there were no seafarers and return to work employees in Pool A. Ms Loose Jones said that it had previously been agreed at the ERC meeting on 27 August 2020 that employees who left HPA to work elsewhere for a period, including seafarers, would not be allocated to Pool A, and priority would be given to those employees who were always available to work. Ms Loose Jones said that HPA management had agreed to this proposal at an ERC meeting on 20 October 2020. 61
[75] In June 2021, negotiations for the new Agreement were concluding as many outstanding issues had been settled between the parties. Ms Loose Jones said that on 9 June 2021, Mr Smith sent an email to Ms Mihalopoulos, with the Part A Committee copied in, attaching a final offer letter in an attempt to reach agreement on outstanding clauses. Ms Loose Jones stated that the final offer included the following which she drafted for Mr Smith:
“The parties agree that the 4 PFR and 48 PPT roles will be filled by the current 'A Pool' casuals in BCT. Any remaining PPT positions will be filled by 'B Pool' casuals through an EOI using the promotion criteria in the new agreement. PPT panels should be negotiated through the local Brisbane ERC taking into account skills.” 62
[76] Ms Loose Jones stated that on 9 June 2021, Mr Smith forwarded Ms Mihalopoulos’ response to the final offer letter, which said “agreed” to the PPT conversion proposal. 63
[77] Ms Loose Jones submitted that it was agreed between the parties in meetings, that the new categories of employment positions/numbers at BCT would include four PFT and 48 PPT employees. These positions were to be filled at the commencement of the Agreement from the Pool A and Pool B casual employees with employees from Pool A to be given priority for conversion over employees from Pool B. According to Ms Loose Jones, under this agreement, no Pool A casuals would have to apply for PPT conversion through an EOI and this position was confirmed in Ms Mihalopoulos’ email response to Mr Smith on 9 June 2021. 64
[78] Ms Loose Jones said that on 4 July 2021, she received an email from HPA’s HR generic email address attaching a final memorandum from John Willy, the Chief Executive Officer. Ms Loose Jones outlined that the memorandum did not indicate that HPA had reneged on the agreement regarding conversion of Pool A Supplementary employees to PPT positions. 65
[79] Ms Loose Jones stated that she attended a Part A meeting with Ms Mihalopoulos, Mr Willy, Mr Smith and Mr Keating on 15 July 2020 where it was stressed by Mr Smith to Mr Willy that the MUA needed to be informed if there were issues that HPA had changed its position on. Ms Loose Jones said Mr Willy agreed to this and listed a range of issues that he wished to clarify, the issue of casual conversion was not clarified. 66
[80] Ms Loose Jones said that the final draft agreement voted up on 17 July 2021. 67
[81] According to Ms Loose Jones, she received an email from Anthony Oliver, Human Resources, BCT, which attached an EOI form for applications for the new PFT and PPT positions. Ms Loose Jones said that she was informed by members through the Facebook group and at work that Mr Oliver had sent this EOI email to both Pool A and Pool B supplementary employees. 68
[82] Ms Loose Jones states she forwarded the email with the EOI to Mr Petersen and posted on the Facebook group asking if anyone knew why the EOI was sent. 69
[83] Ms Loose Jones attended a meeting on 9 August 2021 to address grievances about the EOI at which Mr Samidurai stated that he would check with Ms Mihalopoulos and get back. 70
[84] On 10 August 2021, she received an email from Mr Oliver saying that her concerns could not be brought up under the Agreement and that the matter was at a close. 71
[85] Ms Loose Jones added that she was required to submit an EOI to be offered a PPT position. On 3 September 2021, she received an offer to convert her position from a supplementary employee to a PPT position which she accepted. 72
[86] Ms Loose Jones stated that she became aware from her discussions with other members in Pool A and Pool B at BCT that about 11 supplementary employees from Pool B had been offered and accepted PPT (G16) positions, over the Pool A supplementary employees, from the EOI. 73
[87] Ms Loose Jones believed that, had the BCT workforce known about BCT withdrawing their agreement on the method of conversion to the PFT and PPT roles, the Agreement would not have been voted up. 74
[88] Ms Loose Jones disputed the statement of Ms Mihalopoulos that the number of 48 casual employees was determined on the basis that it complimented the full–time roster at BCT with 8 panels and that it reflected operational requirements. Ms Loose Jones’ evidence was that the proposal to convert 48 casual employees to PPT time employment was based on the original number of employees first placed in Pool A and this would equate to six PPT employees being rostered to a panel, with eight panels being rostered in total per 8-week cycle. Each panel would start work at the beginning of each week of an 8-week roster. Ms Loose Jones states that six employees per panel was the closest divisible number into the 8-week roster to the number of casuals in Pool A, and that there was an 8-week roster for the PPT panels to match the 8-week roster of the PFT roster. 75
[89] Ms Loose Jones rejected Ms Mihalopoulos’ statement that it was the intention of HPA “to create mini sister panels that would follow the rostering tumble of the full-time roster”. Ms Loose Jones said that when such a proposal was requested by the Part A and Part B bargaining committees in drafting meetings in about May and June 2021, it was rejected by Ms Mihalopoulos and Mr Samidurai. 76
Evidence of Paul Petersen
[90] Mr Petersen is the Assistant Queensland Branch Secretary of the MUA and was part of the bargaining committee for negotiation of the Agreement. 77 Mr Petersen provided a witness statement but was not cross-examined on his evidence.
[91] Mr Petersen stated that a casual pool of labour was established at both Brisbane and Port Botany to supplement the permanent workforce. This was provided for in the 2015 Agreement and a Deed of Agreement between the parties dated 17 November 2015 (2015 Deed).
[92] Mr Petersen states that at Brisbane there was one labour pool which was largely sourced from CV’s provided to BCT by the MUA. 78
[93] As BCT did not want casual employees relying on employment with BCT as their sole source of income, Mr Petersen states that when sourcing casual labour, BCT insisted that employees be either students, seafarers or semi-retired stevedores. Mr Petersen states this resulted in a continuous rotation of casual employees as they had no certainty of shifts, and when they were offered shifts, they were often limited to one to two shifts per week. 79
[94] Mr Petersen stated that in or around 2018, there were discussions between BCT and the MUA around the need for more reliable access to labour and skills. This resulted in negotiations, through the ERC, which led to the establishment of a Pool A and Pool B of casual employees. Mr Petersen said the agreement was that Pool A employees would only work for BCT and be available when required, with Pool B employees being able to work for other employers. 80
[95] Mr Petersen said that if there was a need to replenish the labour pool, there was a requirement for the parties under the 2015 Agreement and 2015 Deed to reach agreement on the numbers of external casuals recruited and the recruitment process. This requirement was outlined in sub clause 6.6 of the 2015 Agreement:
“If the casual labour pool is required to be replenished the Parties will reach agreement on the recruitment process. Within that context, the Parties to this Agreement will use their best endeavours to ensure that interviews for future employment will have candidates of both genders and indigenous persons.” 81
[96] Mr Petersen states that in early 2020, HPA approached the respective branches of the MUA and indicated that it wished to increase its casual workforce because of an assertion that there was an expected upturn in business. Mr Petersen said that the Sydney Branch of the MUA took the position that there was no need to replenish the casual labour pool. The MUA did not support BCT’s position to recruit an additional 30 casual employees as it would result in casuals only being offered one to two days’ work per fortnight, diminishing the earnings of existing casual employees and the MUA was of the view that BCT would struggle to retain casual employees on such terms. 82
[97] Mr Petersen stated that agreement was reached between BCT and the MUA for the conversion of the 48 Pool A Supplementary Employees to PPT employment. Mr Petersen said the agreement was that the conversion would be a one-off, occurring ‘automatically’ at the commencement of the 2021 Agreement. Mr Petersen believed that the employees voted up the 2021 Agreement because of the agreement that Pool A Supplementary Employees would be converted to PPT positions. 83
[98] Mr Petersen stated that on 2 August 2021, the MUA and delegates became aware that BCT had sent out EOI to both Pool A and Pool B casual employees for PPT employment without notifying the MUA that it had reneged on the agreement to convert Pool A Supplementary Employees to PPT. 84
[99] Mr Petersen said that he met with Mr Oliver and Mr Samidurai, on 9 August 2021 and management stated they did not agree there was an agreement for PPT conversion and they believed they were complying with the Agreement. 85
[100] Mr Petersen said that BCT refused to consult with the MUA in relation to the recruitment process and the selection criteria regarding the EOI. On 3 September 2021, Mr Petersen said he emailed Mr Samidurai to notify him that the MUA disputed BCT’s refusal to provide the ERC with the scoring data used for selection and oversight of the process. On the same day, Mr Petersen said he had become aware that PPT positions had been offered to Supplementary Employees from Pool B. 86
[101] Mr Petersen submitted that he was aware that at the same time, the Port Botany operations had undergone a recruitment of supplementary employees to permanent employment and a subcommittee with two delegates and one MUA official were involved. They received data and had oversight in the recruitment process pursuant to clause 10.7 of the Agreement. 87
[102] Mr Petersen said he was aware of 12 employees from Pool B at BCT who were converted to PPT positions. According to Mr Petersen, three of these employees did not have the required shuttle driving skills and required training to perform the PPT positions they were appointed to. 88
BCT’s evidence
[103] BCT relied on the witness evidence of:
• Anthony Oliver, Manager – HR Operations BCT; and
• Harriet Mihalopoulos, General Manager – Human Resources and Industrial Relations SICTL.
[104] Both witnesses were required for cross-examination.
Evidence of Anthony Oliver
[105] Mr Oliver has been employed by BCT since 24 May 2021, 89 but was not involved in the negotiation of the Agreement. Mr Oliver is employed in the position of Manager – HR Operations BCT.90
[106] Mr Oliver stated that after the Agreement was approved, he was tasked with the responsibility of filling up to 48 PPT positions at BCT. The 48 positions were the maximum number permitted under the Agreement as set out in Part B Schedule 1 BCT at clause 2 of the Agreement 91:
“2. Permanent Part Time Employee
2.1 A Permanent Part Time Employee will be employed on the following rosters:
2.1.1 BCT Part Time Operations Roster in accordance with Schedule 6.
2.1.2 The maximum number of Part Time Employees shall consist of no more than 48 Employees.
2.1.3 At the commencement of this agreement, the Parties agree that 8 Part Time Employees may be promoted to the BCT Operations Roster in accordance with Schedule 6 subject to confirmation of available hours on the roster arising out of the agreed review process. If the 8 Part Time Employees are promoted to the roster as the result of the review process the maximum number of Part Time Employees shall consist of no more than 40 Employees.”
[107] Mr Oliver drafted EOIs for the 48 PPT and four PFT positions at the Terminal, and on 2 August 2021, sent an email to all casual employees at the Terminal regarding these EOIs. The email requested that employees notify BCT of their intention to apply for the positions by 20 August 2021. Mr Oliver stated that he also posted the EOIs on all terminal notice boards. 92
[108] All applicants for the positions were to be assessed in accordance with the selection criteria at clause 10.8 of the Agreement. Mr Oliver stated it was his role to assess each applicant against the selection criteria. 93
[109] Mr Oliver stated that of the 62 applications received all came from existing casual employees at the Terminal and included applications from all Pool A casuals as well as Pool B casuals. Mr Oliver created a spreadsheet that listed each applicant’s name and contained columns for scoring against the selection criteria. 94
[110] It was Mr Oliver’s evidence that pursuant to the first item in the selection criteria, he assessed each candidate’s physical ability and skills to undertake the inherent requirements of the role. 95
[111] Mr Oliver stated that five applicants were deemed ineligible on the basis that they were assessed as lacking the physical ability to carry out lashing duties safely, which is a core requirement of any stevedoring role and one of the most basic of stevedoring duties. 96
[112] Mr Oliver stated that two applicants were deemed ineligible because of lack of physical ability and necessary skill to drive shuttles, with one applicant stating that he did not have the confidence and skill to drive shuttles safely and did not think he ever would. The other applicant had been denied shuttle certification by BCT trainers after numerous attempts. Mr Oliver stated that driving shuttles is a core requirement of any stevedoring role. 97
[113] In response to the statement of Mr Petersen, Mr Oliver stated that the named individuals referred to at [32] of Mr Petersen’s witness statement had the physical capability to drive shuttles and, upon completion of the Shuttle Training course (which takes between two and 10 days), would have the skill to drive shuttles. Given this imminent ability to meet the criteria, the named individuals were deemed eligible in accordance with the selection criteria. 98
[114] Mr Oliver stated that he also assessed the remaining applicants pursuant to the second and third items in the selection criteria, namely the length of service of each applicant, and the disciplinary criteria, which looked at whether there were any formal warnings on their HR file in the last 12 months. No applicants were deemed ineligible on this basis. 99
[115] Regarding the absence criteria, which is the fourth item in the selection criteria, Mr Oliver stated that he checked each applicant’s HR file and payroll attendance report to assess any absences over 13 days that lacked supporting documentation, and 18 candidates were ruled out on this basis. 100 Mr Oliver stated that he also checked each applicant’s HR file to assess whether there had been two FTRs (Failure to Report) within the last 12 months, and four applicants were ruled out on this basis.101
[116] It was Mr Oliver’s evidence that in total, 21 applicants were deemed ineligible by BCT with reference to the selection criteria (some were ineligible on multiple bases 102), leaving a pool of 41 who could be offered either PFT or PPT positions. The highest four graded applicants received PFT offers, which all accepted, and 37 applicants received PPT offers, of which 35 applicants accepted the offer.103
[117] Mr Oliver stated that all positions were due to commence on Monday 13 September 2021, however not every employee was able to start on 13 September 2021, but every employee had their first shift during that week. 104
[118] With regard to the grievances with the EOI process, Mr Oliver stated that he was aware that there was a prior rostering system in place at the Terminal that involved different allocation procedures for Pool A and Pool B casuals. 105 From 2 August 2021, Mr Oliver received essentially the same grievance from approximately 30 casual employees, alleging that only Pool A casuals should have been offered the EOI, rather than all casuals at the terminal.106
[119] Around 10 August 2021, Mr Oliver responded to each of the individual grievances, stating that BCT did not believe the concerns involved the Issue Resolution provisions in the Agreement and that the matter was regarded as closed. 107
[120] From 7 September 2021, Mr Oliver again received about 30 emails from casual employees, based on an MUA template raising a grievance that the EOIs had been made open to and communicated to all casuals, rather than just Pool A casuals. 108
[121] On 13 September 2021, Mr Oliver provided a response to each person who had raised a grievance, which stated:
“The company remains of the view that the decision to not select you for a PPT role was made in accordance with the new EBA, and in particular clause 10 (Recruitment and Promotion) and has not acted unfairly towards you.
Your grievance appears to be based on an incorrect assumption or mistaken belief as to both the matters discussed in the context of the bargaining and the actual content of the new EBA. As you are aware, you continue to be part of our casual workforce and we trust that this response addresses your concerns.” 109
[122] Regarding the ERC oversight, Mr Oliver stated that on 29 August 2021, he was copied into an email from Mr Petersen that raised a grievance that the EOI process was not compliant with clause 10.7 of the Agreement. Clause 10.7 provides:
“The ERC Committee will have an oversight role in the verification of scoring and provision of data. The following Selection Criteria will apply to all promotions and training.” 110
[123] On 31 August 2021, Mr Oliver responded to this and other emails, stating that BCT would comply with the Agreement. 111
[124] On 6 September 2021, Mr Oliver received an email from Mr Petersen, requesting the ERC receive data and oversight for the EOI process. 112
Evidence of Harriet Mihalopoulos
[125] Ms Harriet Mihalopoulos is employed by SICTL in the position of General Manager – Human Resources and Industrial Relations based at the Port Botany Site. 113
[126] Ms Mihalopoulos stated that the stevedore business of Hutchison Ports in Australia involves two separate but related corporate entities that employ persons at two separate sites, being SICTL at Port Botany in Sydney, and BCT at the Terminal in Brisbane, which is the respondent in these proceedings. 114
[127] In Ms Mihalopoulos’ role, which she has held since 2014, she has responsibility for industrial relations matters across both stevedoring facilities. 115
[128] Ms Mihalopoulos provided that since her employment in 2014, the following industrial instruments have had application to the Port of Brisbane site:
(a) Sydney International Container Terminals Pty Ltd (SICTL) and Brisbane Container Terminals Pty Ltd (BCT) and Maritime Union of Australia (MUA) Enterprise Award 2013 (the 2013 EA);
(b) Sydney International Container Terminals Pty Ltd (SICTL) and Brisbane Container Terminals Pty Ltd (BCT) and Maritime Union of Australia (MUA) Enterprise Award 2015 (the 2015 EA); and
(c) Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (the Agreement). 116
[129] Ms Mihalopoulos states she was involved in the negotiation, making and submission for approval to the Commission of both the 2015 EA and the Agreement. 117
[130] Prior to the Agreement’s approval Ms Mihalopoulos stated that she attended numerous bargaining meetings from the commencement of bargaining in September 2018, with MUA officials and delegates in both Sydney and Brisbane. Ms Mihalopoulos stated that the bargaining spanned over two years and 10 months and involved periods of protected industrial action at both facilities. 118
[131] With the exception of one or two occasions where she may have been absent from work, Ms Mihalopoulos believed that she attended all bargaining meetings for the making of the Agreement, which were conducted in person in Sydney and Brisbane, and by Webex and Zoom calls during the COVID-19 period. 119
[132] In regard to the current dispute, Ms Mihalopoulos stated that the expressions ‘Pool A’ and ‘Pool B’ casuals at the Port of Brisbane is a local distinction between different pools of casuals used for rostering and allocation purposes, which did not feature in the 2015 enterprise agreement.
[133] Ms Mihalopoulos stated that in approximately 2018, the management of the Port of Brisbane Facility introduced two separate and distinct pools of casual employees and applied different criteria to how and when Pool A and Pool B casuals were offered casual engagements. 120
[134] Ms Mihalopoulos’s evidence was that with the introduction of the Agreement, a new provision was included which made reference to “Supplementary Employees”.
[135] Part B, Schedule 1 – Category of Employees – of the 2021 Agreement at Categories of Employment – BCT – 4 Supplementary Employees provides:
"4. Supplementary Employees
4.1 The engagement of Supplementary Employees will be governed by the terms in this Clause and relevant local Schedules of this Agreement.
4.2 A Supplementary Employee is one engaged and paid as such. A Supplementary Employee will be paid an hourly rate of pay in accordance with this Agreement. The minimum engagement and payment for a Supplementary Employees will be for eight (8) Hours.
4.3 A 25% loading is paid in accordance with the Award in lieu of Annual Leave, Personal Leave, Jury Service, Public Holidays not worked and Leave for Attendance at Repatriation Centres.
4.4 Once allocated in the event of a walk up start, a four (4) minimum payment at the Ordinary Rate of Pay shall apply.
4.5 Supplementary Employees may work up to six (6) consecutive shifts, with the option of volunteering up to ten (10) consecutive shifts.
4.6 In the event of Redundancies the employment of Supplementary Employees will not continue except by agreement between the Parties." 121
[136] Ms Mihalopoulos noted that the expression “Supplementary Employee” is also found in the Agreement in clause 9 Categories of Employment at sub clause 9.1.3 which refers to Part B of the Agreement:
"9. CATEGORIES OF EMPLOYMENT
9.1 An Employee covered by this Agreement will be employed as:
9.1.1 Permanent Full Time Rostered Employee engaged in accordance with Part B Schedules of this Agreement; or
9.1.2 Permanent Part Time Rostered Employee engaged in accordance with Part B Schedules of this Agreement; or
9.1.3 Supplementary Employee engaged in accordance with Part B Schedules of this Agreement and paid the hourly rate of pay outlined in Clause 16.7.
9.2 The Categories of Employment for each Terminal are outlined in Schedule 1
Part B of this Agreement." 122
(underline added)
[137] Ms Mihalopoulos stated that where the Agreement makes reference to Supplementary Employees at the Port of Brisbane, a cap was agreed and included at Part B, Schedule 1 – Categories of Employees – BCT under the heading of “Other Agreed Category of Employees”:
“At the commencement of this Agreement, the maximum number of Supplementary Employees will be capped to a maximum of 40 Supplementary Employees in a primary pool and 10 in a secondary pool.” 123
[138] Ms Mihalopoulos states that the only other part of the Agreement that deals with Supplementary Employees is at the re-negotiated clause 10 Recruitment and Promotion at 10.6.3:
“10.6 Applicants in the Selection Criteria Processes will be appointed in the following order:
10.6.1 Permanent Rostered Employee (top roster first where applicable)
10.6.2 Permanent Part Time Employee
10.6.3 Supplementary Employee” 124
[139] As stated by Ms Mihalopoulos, the Agreement at Part B includes a provision for PPT employees which sets the maximum number of part-time employees at the Port of Brisbane Facility in the following terms:
"2.1 A Permanent Part Time Employee will be employed on the following rosters:
2.1.1 BCT Part Time Operations Roster in accordance with Schedule 6.
2.1.2 The maximum number of Part Time Employees shall consist of no more than 48 Employees.
2.1.3 At the commencement of this agreement, the Parties agree that 8 Part Time Employees may be promoted to the BCT Operations Roster in accordance with Schedule 6 subject to confirmation of available hours on the roster arising out of the agreed review process. If the 8 Part Time Employees are promoted to the roster as the result of the review process the maximum number of Part Time Employees shall consist of no more than 40 Employees." 125
[140] Ms Mihalopoulos stated that as part of the negotiations for the Agreement, there was the inclusion of a provision dealing with the criteria to be applied in circumstances of any internal promotion and permanent appointment. Ms Mihalopoulos states she was involved in the drafting and negotiating of this selection criteria. The selection criteria had a number of features including various threshold requirements and a point system for assessing and considering potential applicants. 126
[141] Ms Mihalopoulos said that the discussion with respect to the selection criteria was at all times referrable to all permanent positions and training opportunities, and that there was no suggestion that any class of employees would be exempted from the selection criteria or that someone could or would be automatically promoted. 127
[142] It was Mihalopoulos’ evidence that the bargaining for the Agreement was robust and included a range of claims, counterclaims, revisions and disputation over a range of issues over a period of 2 years and 10 months, with the content not approved by the parties and the document not considered the ‘final version’ until 30 June 2021. 128
[143] Ms Mihalopoulos stated that she regarded the “without prejudice” letter dated 9 June 2021 from Mr Smith as a reformulation of a number of matters that had been previously raised in discussions ‘with additional and some new items’. This letter followed a bargaining meeting the previous day that Ms Mihalopoulos states she attended, the MUA letter from Mr Smith included the following comments:
“Yesterday (Tuesday, June 8), the company put a position that would be an acceptable outcome to the Union that would finalise negotiations. The MUA is in a position to agree to the outcome that you identified as a full and final settlement of the current EBA negotiations.
The MUA Part A Committee can agree to that position and, accordingly, we put the following back to you as the basis for a finalisation of the Agreement." 129
[144] Ms Mihalopoulos responded to this “without prejudice” letter by email including the following:
"Today, I was in a position to outline a number of outcomes which I believe were capable of bringing the negotiations to a close. It seems that after having considered these matters, you have chosen to respond in a hand delivered letter today. We would like to respond on a without prejudice basis in the hope of continuing the negotiations." 130
(My underline)
[145] Ms Mihalopoulos states that in working through the correspondence headings in Mr Smith’s 9 June 2021 correspondence, that under the heading of “PPT Upgrades”, she made reference to what she described as “PPT Conversion” as being “agreed” and concluded her correspondence by saying:
“Warren, we hope to continue discussions with you and Employee Representatives in a constructive and cooperative manner.” 131
[146] Ms Mihalopoulos stated that the email of 9 June 2021 reflected HPA’s position in the negotiations on a without prejudice basis. 132 Ms Mihalopoulos stated that the parties were not close in terms of the matters that were agreed which would then permit the matters agreed to be contained in an enterprise agreement. As at 9 June 2021, there were a number of outstanding issues and escalating notification of protected industrial action.133
[147] During cross-examination, Ms Mihalopoulos accepted that when she said 'agreed' in her correspondence to Mr Smith on 9 June 2021, she was agreeing to the proposal as put by Mr Smith in his correspondence under the heading “PPT Upgrades,” however she also stated that this was on a without prejudice basis. 134
[148] On 10 June 2021, Mr Smith responded to Ms Mihalopoulos by email. The email commenced with:
“Harriet,
The members have had enough. It is impossible for the Part A Committee to go back with more compromise on these new issues.”
[149] The email continued:
"The final offer position we put yesterday outlined further concessions by the Union, yet the company continues to reject an outcome. The Part A Committee have made it clear to officials that there is nothing left to be put as they don't trust the way the company negotiates and backtracks and have to deal with the concessions requested by the Company in negotiations… Our position remains as identified in our final offer sent to you yesterday." 135
[150] Ms Mihalopoulos stated in cross-examination that following the 9 June 2021 correspondence, further protected industrial action was taken by employees so “all bets were off”, and no agreement had been reached. Ms Mihalopoulos stated that no further discussions with Mr Smith or any other members of the MUA regarding the proposal for the conversion of all Pool A casuals to the PPT positions after 9 June 2021 occurred. 136
[151] Ms Mihalopoulos stated that the “final offer” of the MUA, as described by Mr Smith, was not accepted by BCT and SICTL, and protected industrial action at the Port Botany Facility was notified on 10 June 2021 and commenced at 6:00am on 18 June 2021, and protected industrial action at the Port of Brisbane Facility was notified on 14 June 2021 and commenced at 7:00am on 22 June 2021. 137
[152] On 10 June 2021, a memorandum was sent to employees signed by the CEO Mr Willy as a response to the further protected industrial action being notified. Ms Mihalopoulos states she drafted the memorandum with the intention of encouraging employees to agree to the offer and cease threats of protected industrial action. Ms Mihalopoulos stated that the memorandum set out in detail the “offer” of Mr Willy to employees, and with respect to casual employees at the Port of Brisbane Facility, the “offer to employees” was expressed in the following terms:
“Forty-eight (48) operational Casual Employees in Brisbane to be converted to Permanent Part Time employment with a minimum guarantee of 16 hours per week." 138
[153] Ms Mihalopoulos stated protected industrial action continued at both facilities and further discussions took place on 12, 14 and 15 June 2021, however these discussions did not result in agreement with the MUA on the content of the proposed enterprise agreement. 139
[154] On 16 June 2021, Mr Willy issued another memorandum to all employees with the subject “EBA Update – 52 Final Offer” (Final Offer Memorandum). This Memorandum specified that this was a final offer valid until 5:00pm on 17 June 2021. Under the heading of “Brisbane – Supplementary Employees (Casuals)”, the Memorandum stated:
"The Company has addressed union concerns related to Supplementary Employees (Casuals) through commitments relating to maximum numbers following the part time conversions. Specifically, the Company has agreed to 40 Supplementary Employees with a smaller pool of 10 Supplementary Employees who have other employment commitments. This is fair and reasonable." 140
[155] The Final Offer Memorandum then set out a number of dot points expressed as the “FINAL offer to Employees”, and with respect to casual employees in Brisbane, the Final Offer was expressed in the following terms:
“- 48 operational Casual Employees in Brisbane to be converted to permanent part time employment with a minimum guarantee of 16 hours per week." 141
[156] Ms Mihalopoulos stated that this “Final Offer” was not accepted, and further discussions and intense negotiation between the MUA and HPA continued. There were numerous emails and discussions between the bargaining parties including numerous edits to the document during this period, further notifications of protected industrial action occurred at both Port Botany and at Brisbane. 142
[157] Ms Mihalopoulos stated that on 17 June 2021, Mr Willy had a telephone conversation with Mr Paddy Crumlin, National Secretary of the MUA, and following this discussion, Mr Willy sent an email to Mr Crumlin, titled “Clarification on the Final Offer – HPA”.
[158] The email made reference to a number of matters discussed between Mr Willy and Mr Crumlin which related to the various negotiating positions, offers and counter offers. Mr Willy’s email also set out the features of the proposed enterprise agreement as offered, and included the following content with respect to casual employees in Brisbane (which was also included in the 10 June 2021 Memorandum):
“Forty-eight (48) operational casual employees in Brisbane to be converted to Permanent Part Time, with a minimum guarantee of 16 hours per week.” 143
[159] Ms Mihalopoulos said that negotiations continued over the weekend of 26 and 27 June 2021, and a final drafting meeting occurred on 28 June 2021, between Mr Smith and Ms Mihalopoulos. During this meeting, Ms Mihalopoulos recalled that they exchanged various drafts reflecting the changing positions. 144
[160] Later on 28 June 2021, following the final drafting meeting, Ms Mihalopoulos sent Mr Smith an email attaching a “clean version” of the proposed agreement with the watermark “Final Draft”. Ms Mihalopoulos sent a further email to Mr Smith on 29 June 2021, alerting Mr Smith to a number of typographical errors, corrections to grammar and incorrect references. 145
[161] On 30 June 2021, Ms Mihalopoulos received an email response from Mr Smith, which included the content:
"Harriet,
Comments below on email - changes are agreed. The document can go out for an access period from today. If that can be done, which would start the count from tomorrow as being day 1. We will be in touch locally with regard to the voting procedures within the terminal." 146
[162] Ms Mihalopoulos stated that the email from Mr Smith set out what she understood to be the final amendments of the MUA to the proposed agreement, and that they had an agreed document. Later on 30 June 2021, at 12:12pm, Ms Mihalopoulos responded to Mr Smith’s email requesting a call back regarding the details of the ballot in order to open the access period. 147
[163] Mr Mihalopoulos stated that she regarded 12:12pm on 30 June 2021, as the time at which a final agreement was reached with respect to the content of the Agreement, which would then be put to the employees at both facilities for ballot. The version of the Agreement, as agreed with Mr Smith on behalf of the MUA, was attached to the 2 July 2021 Memo to employees. Ms Mihalopoulos stated that this version of the Agreement was:
(a) The final version agreed on 30 June 2021;
(b) The subject of the ballot commencing 10 July 2021 and concluding on 17 July 2021; and
(c) The document approved by the Commission with undertakings on 9 August 2021. 148
[164] Ms Mihalopoulos stated that the Agreement, as approved by Mr Smith on 30 June 2021 and subsequently voted on by the employees:
(a) Makes no reference to the concept of Pool A and Pool B casuals in Brisbane;
(b) Makes no reference to Pool A casuals in Brisbane being appointed to permanent part time positions ahead of Pool B casuals; and
(c) Makes reference to Permanent Part Time positions at the Port of Brisbane Facility being created. 149
[165] Ms Mihalopoulos stated that to the extent that BCT, during the access period, attempted to explain the terms and conditions of the Agreement, this information was set out in the employee memorandum dated 4 July 2021, subject “EBA Ballot – Key Terms of New Agreement”. This document made a single reference to “BCT casual conversions” 150 in the following terms:
[166] Ms Mihalopoulos stated that the 4 July 2021 memorandum listed herself and Mr Oliver as the contact persons for any help understanding the Agreement, and Ms Mihalopoulos did not receive any enquiries. Ms Mihalopoulos also advised that Mr Oliver was not contacted by any BCT employee regarding the content of the Agreement. 151
[167] Ms Mihalopoulos said that in all communications between BCT, the MUA and employees in the period 10 June 2021 to 4 July 2021, the “offer” of BCT in relation to casual employees at the Port of Brisbane Facility was in the following terms:
"Forty-eight (48) operational casual employees in Brisbane to be converted to permanent part time employment, with a minimum guarantee of 16 hours per week." 152
[168] Ms Mihalopoulos stated that the 48 casual employees to be considered for the PPT positions at the Port of Brisbane, was determined on the basis that it complemented the full-time roster, which operates at BCT with 8 panels. Ms Mihalopoulos stated that this would provide at least some certainty around the likely shifts that the new part time employees would be allocated to. 153
[169] Ms Mihalopoulos stated that the reference to existing operational casual employees in Brisbane in the 4 July 2021 memorandum was a reference to any casual operational employee at the Port of Brisbane. The Agreement did not distinguish between the rostering differential of Pool A and Pool B that had operated at the Port of Brisbane. 154
[170] It was Ms Mihalopoulos’ evidence that it was never envisaged by BCT, nor would have been possible for BCT to unilaterally convert or direct existing casual employees to accept a PPT position at BCT. 155
[171] Ms Mihalopoulos stated that the selection criteria applies to all permanent appointments and promotion, and that for BCT to offer any casual (supplementary) employee a PPT employment opportunity, the selection criteria must be applied. 156
[172] Ms Mihalopoulos stated that at all relevant times, BCT and SICTL proceeded on the basis that the matters that were included in the 2 July 2021 and 4 July 2021 memorandum to employees (and the attached enterprise agreement) reflected the final agreement between BCT and the MUA. 157
[173] Regarding the statement of Mr Petersen, Ms Mihalopoulos disputed that any agreement was reached to the effect that “Pool A supplementary employees (would) convert to G16 permanent part time positions.” Ms Mihalopoulos stated that there was no agreement to the effect that upon the commencement of the new Agreement there would be ‘a one off conversion occurring automatically’, and at no stage during any of the negotiations for the Agreement was there any reference to any ‘conversion’ occurring ‘automatically’. It was stated that BCT did not have the power to deem a person to cease being a casual employee and become a PPT employee without their consent.
[174] In response to the evidence of Ms Loose Jones, Ms Mihalopoulos stated that there was no agreement reached at the meeting on 8 June 2021 to the effect that the 48 new PPT positions would be filled in such a way where ‘Pool A to be given priority for conversion over employees from Pool B’. Differential treatment of casual employees was not discussed in her presence at the meeting on 8 June 2021.
[175] Ms Mihalopoulos stated that at the meeting on 8 June 2021, there was no discussion about expressions of interest or discussion that ‘no Pool A casual would have to apply for PPT conversion through an expression of interest’. The reference to a document described as an ‘expression of interest’ is a reference to how BCT ultimately implemented its commitment after the ballot for the making of the Agreement. 158
[176] Ms Mihalopoulos disputed that any agreement was either discussed or agreed that ‘Upon the commencement date of the new agreement that all pool A casuals would be offered PPT positions before any expression of interest was sent out to Pool B casuals for any remaining positions.’Ms Mihalopoulos stated that no agreement was reached in any way to the effect that the Pool A employees would first be offered PPT positions. 159
[177] Ms Mihalopoulos stated that SICTL and BCT entered into a Deed of Agreement on 17 November 2015 with the MUA, but this document was not part of the 2015 EA and was not an agreement with the employees of BCT and SICTL. The Deed ceased to have operation with the making of the Agreement and HPA has not entered into any subsequent deed with the MUA. 160
[178] Ms Mihalopoulos stated that throughout discussions with the MUA, BCT had not agreed on any occasion that 48 PPT positions would be filled ‘automatically’ or ‘filled automatically from current Pool A casual employees’. Ms Mihalopoulos stated that to the extent that any employees were offered a permanent position, that recruitment or promotion would be subject to the agreed selection criteria. 161
[179] With reference to the term ‘converting’, Ms Mihalopoulos stated that to the extent that BCT advised the workforce and advised the MUA that it would ‘convert’ casual employees at the Port of Brisbane, the only commitment that was put to employees and the MUA in a manner that was acceptable to the MUA for the making of the 2021 Agreement was:
"Forty-eight (48) operational Casual Employees in Brisbane to be converted to Permanent Part Time employment with a minimum guarantee of 16 hours per week." 162
[180] Ms Mihalopoulos further stated that irrespective of Mr Smith's understanding, no agreement emerged out of the correspondence on 9 June 2021 and 10 June 2021 and the final position of regarding casual employees in Brisbane was conveyed by the CEO to the MUA National Secretary on 17 June 2021. Final agreement on the terms and conditions of the Agreement was not reached until Ms Mihalopoulos received Mr Smith's email of 30 June 2021. 163
[181] Ms Mihalopoulos stated to the extent that the MUA agreed with BCT with respect to casual conversion at the Port of Brisbane, this process was to occur after the commencement of the Agreement. The terms of the Agreement state that BCT will apply the selection criteria to training, permanent appointment and promotion.
[182] Ms Mihalopoulos concluded her written evidence by stating that the deeming of 48 casual employees at BCT as PPT employees was never contemplated by BCT, 164 and accordingly, BCT did not renege on this ‘agreement’.165
Consideration
[183] Clause 14 Issue Resolution of the Agreement provides that any matter pertaining to the employment relationship is to be dealt with in accordance with the procedure set out in the clause. Where a matter is not resolved, a party may refer the matter to the Commission for resolution which includes the Commission arbitrating the dispute. 166
[184] The Issue Resolution clause must be read in conjunction with the relevant provisions of the Actincluding s.739 - Disputes dealt with by the Fair Work Commission, which states at sub s.739(1):
“This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute.”
[185] Further, sub-s.739(4) states:
“If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so.”
[186] The Issue Resolution clause of the Agreement empowers the Commission to deal with any matter pertaining to the employment relationship, which may or may not relate to the terms of the Agreement. 167 At the same time the Commission is restricted in arbitrating any matter by sub-s.739(5) which states:
“Despite subsection (4), FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.”
[187] In respect of a matter pertaining to the ‘employment relationship’, this can only concern the employment relationship between either employer party to the Agreement and an employee/s covered by the Agreement. As the dispute concerns BCT’s restructuring of the workforce and appointment of Supplementary Employees to permanent employment, the MUA submit that the dispute pertains to the employment relationship.
[188] The Commission is satisfied that the dispute for arbitration is properly before it.
Interpretation of enterprise agreements
[189] The approach to interpreting industrial instruments is well-established in decisions of this Commission and courts.
[190] The 2014 Full Bench decision of Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited168 (Golden Cockerel) sets out the approach to be taken in interpreting enterprise agreements. The Full Benchstated at [19] of their decision that the general approach to the construction of enterprise agreements was as explained in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union 169:
“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998)80 IR 345 (Marshall J).”
[191] Although dealing with the construction of an award, the Full Bench expressed the view that ‘the same principles are apt to apply to the interpretation of enterprise agreements’. 170
[192] In 2017, a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd171 (Berri) made the following observations in relation to interpreting enterprise agreements:
“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,172 (Amcor) Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.173 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’.174
[193] The Full Bench in Berri went on to set out a number of principles relevant to the task of construing an enterprise agreement by modifying those set out in the Full Bench decision of Golden Cockerel.
[194] In 2018, the Federal Court in WorkPac Pty Ltd v Skene 175 provided the following summary of the approach to the interpretation of an enterprise agreement:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”
(citations omitted)
[195] Neither party disputed the process of how an enterprise agreement should be interpreted, and as such, the Commission will apply the ratio from the above authorities in answering the questions posed by the MUA.
[196] Much of the argument put forward by the MUA in relation to the three questions to be determined by the Commission relates to the conduct of the parties prior to the making and approval of the Agreement, including an alleged agreement reached with HPA in respect to the Port of Brisbane. The history as traversed by the MUA is said to support the outcomes it seeks in relation to the questions posed.
[197] The Agreement provides for different categories of employment to that contained in the previous 2015 enterprise agreement, which only provided for full-time and casual employees.
[198] The Agreement provides for an additional category of employment under clause 9 Categories of Employment, that of a Permanent Part Time Rostered Employee, and casual employees are now referred to as Supplementary Employees.
[199] Employees covered by the Agreement are engaged at the Port of Botany by SICTL and the Port of Brisbane by BCT. The workforce at the Port of Brisbane consists of approximately 45% of Permanent Full Time Rostered Employees (around 52) and 55% of casual employees (around 60).176
[200] Part B Schedule 1 of the Agreement sets out categories of employment for the Port of Brisbane and the composition of the workforce, which caps the number of both Part Time Employees and Supplementary employees.
[201] Under the Agreement, Supplementary employees are to be capped to a maximum of 40 in a primary pool, or what is referred to as Pool “A”, and 10 in a secondary pool, or what is referred to as Pool “B”.
[202] The MUA submit that the use of a Pool “A” and Pool “B” was agreed to by HPA and the ERC in response to having certainty of labour for BCT. Employees in Pool “A” are dedicated to working for BCT whereas it is anticipated that employees in Pool “B” will work more irregularly.
[203] The evidence of Ms Loose Jones was that in June 2018, it was agreed at an ERC meeting that casual employees in Pool A would primarily work for BCT and be available on a regular basis and casual employees in Pool B would be available on an irregular basis. 177
[204] It was also said to be agreed that casual employees would be allocated to either the Pool A or Pool B in accordance with a points system based on their availability to work allocated shifts. Primacy of allocation and training was to be given to those casual employees in Pool A who made themselves available for work more regularly, over casuals in Pool B. 178 This system was said to have operated until around April 2020 when HPA stopped the allocators from moving Supplementary Employees between Pool A and Pool B.179
[205] The MUA submit that during negotiations for the 2021 Agreement, the parties agreed that in relation to the Port of Brisbane that four full-time positions and 48 part-time positions would be filled from the then current Pool “A” Supplementary Employees and that any remaining part-time positions would be filled from the then current Pool “B” through an expression of interest (EOI) process using the Selection Criteria in the new Agreement.
[206] It was also stated by the MUA that it was agreed that at the commencement of the Agreement the four Full Time positions would be filled by an EOI process from Pool A employees with a selection process to be conducted in accordance with clause 10 of the Agreement. 180
[207] On 3 September 2021, BCT offered some Pool B Supplementary Employees employed at the Brisbane Terminal PPT positions without first appointing all Pool A Supplementary Employees employed at the Brisbane Terminal to PPT or PFT positions. The offers of PPT employment to Primary Pool A and Secondary Pool B Supplementary Employees took effect on Monday 13 September 2021. 181
[208] The MUA contend that on commencement of the Agreement, BCT was first required to implement the ‘agreement’ reached during negotiations and carry out the necessary conversions of all Pool A employees.
[209] By BCT not confining the EOI to Pool A employees in the first instance, the MUA submit that it results in a diminution of job and promotion opportunities and employment tenure for Pool A employees.
Question One
At the commencement of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (Agreement), is the respondent required to first appoint all primary pool or pool A supplementary employees employed at the Port of Brisbane to permanent part – time employment, and subsequently to permanent full – time employment, before it may appoint secondary pool or pool B supplementary employees employed at the Port of Brisbane to permanent part – time employment, and subsequently to permanent full – time employment?
[210] In answering this question it is necessary to determine what support for the respective arguments exists in the relevant provisions of the Agreement. For this purpose Part B Schedule 1 Categories of Employment of the Agreement and in particular where it specifies provisions relating to the Brisbane Container Terminal is relevant.
[211] Under the heading 2 - Permanent Part Time Employee, at 2.1.2 it states that the maximum number of part time employees shall consist of no more than 48 employees. At 2.1.3 it refers to what is to happen “At the commencement” of the Agreement in relation to the potential promotion of 8 Part Time employees to the BCT Operations Roster, and should this occur the maximum number of Part Time employees will then not exceed 40 employees.
[212] Under 3 - Other Agreed Category of Employee it states that “At the commencement” of the Agreement the number of Supplementary Employees will be capped to a maximum of 40 in a primary pool and 10 in a secondary pool.
[213] As can be seen there are a number of scenarios that refer to what is to happen at the ‘commencement of the Agreement’, these scenarios do not however reflect the position put by the MUA in what they contend was agreed during negotiations for the final Agreement.
[214] There is no term that requires HPA on commencement of the Agreement to first appoint all Pool A supplementary employees at the Port of Brisbane to PPT employment, or PFT employment, before appointing Pool B supplementary employees to PPT employment or PFT employment.
[215] Clause 10 - Recruitment and Selection of the Agreement provides at 10.2 the employer will apply the ‘Selection Criteria’ to ‘training, permanent appointment and promotion’. The Selection Criteria for higher level appointment is as set out at 10.8.
[216] The MUA submit that clause 35 – Redundancy and Right of Return at sub clause 35.7 is consistent with the agreement reached regarding conversion and selection of Pool A Supplementary Employees. 182 The clause makes reference to 52 Supplementary Employees at the Brisbane Port converting to Permanent Full Time Employment or Permanent Part Time employment after the commencement of the Agreement.
[217] The agreement reached in the bargaining negotiations between the parties has now self-evidently been reduced to writing in the form of the Agreement approved by the Commission. It is this Agreement and not the understanding of the parties that the Commission must apply where the meaning of the disputed terms of the Agreement are plain and unambiguous.
[218] This is despite the MUA’s evidence that its understanding of what was agreed has failed to be implemented by BCT.
[219] The understanding of the MUA is that reflected in the 9 June 2021 email of Mr Smith to Ms Mihalopoulos titled MUA Final Settlement of EBA, where Mr Smith sets out what:
“would be an acceptable outcome to the Union that would finalise negotiations”
and under the bolded heading PPT upgrades the following is stated:
“The parties agree that the 4 PFR and 48 PPT roles will be filled by the current 'A Pool' casuals in BCT. Any remaining PPT positions will be filled by 'B Pool' casuals through an EOI using the promotion criteria in the new agreement. PPT panels should be negotiated through the local Brisbane ERC taking into account skills.”
[220] Ms Mihalopoulos responded later the same day (9 June 2021) to Mr Smith (also via email), stating what HPA believed was necessary ‘in the hope of concluding the negotiations’. The evidence was that the 9 June 2021 ‘final offer’ of the MUA was not as a package acceptable to HPA, although some items were noted as ‘agreed’. For example under the heading in bold PPT Conversion, Ms Mihalopoulos inserted the word ‘Agreed’. 183
[221] It must be noted that the correspondence from both parties sent on 9 June 2021, contained the caveat ‘without prejudice’.
[222] Despite the agreed response of Ms Mihalopoulos in regard to casual conversion/upgrade in Brisbane, Ms Mihalopoulos’s evidence was that if anyone was to be considered for what Mr Smith referred to as PPT Conversion that the agreed Selection Criteria would have to be applied. 184
[223] The following day on 10 June 2021, Mr Smith responded in an email which commencing with the following:
“The members have had enough.”
[224] The email response goes on to make a number of allegations regarding HPA’s negotiation position concluding that there is no trust in the way HPA negotiate and that the MUA’s final position was as contained in his email of 9 June 2021.
[225] Following notification by the MUA on 10 June 2021 of an intention of employees to take protected industrial action, Mr Willy issued a memorandum titled EBA update – 51 185which stated amongst other things that the offer to employees included that 48 operational casual employees in Brisbane be converted to PPT employment. There was no clarification about Pool A vs Pool B selection, nor was there any reference to four casuals being appointed to full-time positions and how they would be appointed.
[226] Following the notification of the intention to take protected industrial action by employees, further negotiations continued.
[227] On 16 June 2021, a further notification to employees was sent by Mr Willy with the subject EBA update – 52 – Final Offer 186advising that following further discussions a final agreementhad still not been reached and repeated in respect of BCT, the offer to convert 48 casual employees to PPT positions. It was also stated that ‘following the part time conversions’ HPA had agreed to 40 Supplementary (casual) employees with a smaller pool of 10 Supplementary employees who have other employment commitments. The correspondence stated that the offer was valid until 5:00pm 17 June 2021, and if rejected, HPA reserves its right to reconsider the offer.
[228] On the evening of 17 June 2021, Mr Willy sent the MUA National Secretary Mr Crumlin whom he had been holding discussions with, correspondence titled – Clarification On The Final Offer. The correspondence included the offer in respect of casual conversion to PPT employment at BCT and was in the same terms as the offer contained in Mr Willy’s 16 June 2021 notification to employees.
[229] Despite Mr Willy’s offers to settle the negotiations, employees undertook protected industrial action at BCT on 18 and 22 June 2021.
[230] Negotiations continued between the parties in the second half of June 2021, and in Ms Mihalopoulos’ evidence this included numerous positions and counter positions being exchanged between the parties. 187
[231] It appears from the evidence that a final agreement between the parties was reached on 30 June 2021.
[232] On 4 July 2021, Mr Willy forwarded all employees a document with the subject title: EBA Ballot – Key Terms of New Agreement 188 which under the heading BCT Casual Conversions stated:
• Four (4) existing operational Casual Employees in Brisbane to be converted to Permanent Full-Time employment on BCT Fixed Roster.
• Forty-eight (48) existing operational Casual Employees in Brisbane to be converted to Permanent Part-Time employment with a minimum guarantee of 16 hours pay per week.
[233] The approval vote by employees for the final Agreement commenced on 10 July 2021. 189 As is clear from the terms of the approved Agreement, no reference is made to a Pool A and/or Pool B group of casuals in Brisbane.
[234] The statement in the memorandum of 4 July 2021, to employees from Mr Willy that 48 existing casual employees in Brisbane will be converted to PPT employment has not found its way into the Agreement with the Agreement stating only that the maximum number of part-time employees shall be no more than 48 and nothing more. 190
[235] Despite the Agreement not specifically reflecting in Part B Schedule 1 of the Agreement the undertaking from Mr Willy, HPA states that this commitment has been fulfilled. 191 In any event, support for casual employees being converted to PPT and PFT positions on the commencement of the Agreement is found at clause 35.7 of the Agreement.
[236] At this point it is instructive to examine the evidence of Ms Mihalopoulos given during cross-examination. Ms Mihalopoulos accepted that in replying to Mr Smith’s email of 9 June 2021 and stating ‘Agreed’ under the heading of PPT Conversion reflected agreement to the proposal of Mr Smith on a without prejudice basis. 192
[237] During Ms Mihalopoulos’ oral evidence she confirmed that she understood the position put by Mr Smith in his correspondence of 9 June 2021, in regard to the 48 PPT positions when responding that the issue was ‘agreed’. 193
[238] Ms Mihalopoulos’ evidence was that the position of HPA subsequently changed and in her words ‘the deal wasn’t done’, ‘what ensued was further protected industrial action, so all bets were off.’ 194 The subject matter of PPT positions was not revisited during further negotiations and HPA’s revised offer in respect of PPT positions was as stated by Mr Willy in his subsequent correspondence to employees and the MUA.195
[239] Ms Mihalopoulos’ evidence was that HPA’s change in position in regard to casual conversion was not specifically discussed with Mr Smith or other MUA representatives at any time after 9 June 2021. 196
[240] Ms Loose Jones, as part of her evidence, tendered a copy of her notes of an enterprise agreement meeting held on 15 July 2020. The notes reflect Mr Smith placing on record that there were four issues left with everything else agreed in-principle and that he did not expect the agreed issues to be reneged on. 197
[241] The Commission accepts that the correspondence between the parties on 9 June 2021, at that period in time, for all intents and purposes supports an agreed position in relation the filling of 48 PPT positions and 4 PFT positions. That is, that the 4 PFT and 48 PPT roles would be filled by the current Pool A casuals in Brisbane and any remaining positions will be filled by Pool B casuals through an EOI using the promotion criteria in the new Agreement. This is despite HPA’s position as stated in its evidence that it is not possible to unilaterally convert an existing casual employee to PPT status. 198
[242] While HPA states that this proposal was not agreed to following the MUA’s 10 June 2021 response to HPA’s offer, and the subsequent taking of protected industrial action, it appears that HPA’s change of position was never discussed further or directly advised to the MUA or its employees. 199 Ms Mihalopoulos explained the position as follows:
PN1248 No. And did the company's position change in relation to permanent part-time upgrades as described by the heading used by Mr Smith, after 9 June?---Yes.
PN1249 And did it change in a negotiation meeting?---I cannot recall.
PN1250 Let me put it to you another way, sorry. Was it discussed in a negotiation meeting following 9 June 2021?---Not that I can recall.
PN1251 No. So there was no further discussion of the claim in any bargaining meetings following that exchange of correspondence?---Not that I can recall.
[243] This was despite other subject matters stated as having been agreed by HPA remaining as agreed items after 9 June 2021.
[244] The failure of HPA, a large and sophisticated employer, to clearly put the MUA and its employees on notice that the conversion and appointment of 48 casual employees at the BCT in Brisbane to PPT employment was to occur by an EOI open to all casual employees by applying the Agreement’s Selection Criteria at clause 10.8, was not satisfactorily explained by HPA.
[245] The lack of clarification on HPA’s changed position regarding the permanent appointments has understandably led the MUA and its members to consider that the position put by the MUA in Mr Smith’s email of 9 June 2021, remained as previously agreed between the parties.
[246] At the same time, it is understandable why following Mr Smith’s 10 June 2021 rejection of the HPA offer, and subsequent notification that employees were to take protected industrial action, that HPA considered that ‘all bets were off’ and that the only position in respect of the conversion of 48 casual employees was that set out in the correspondence of Mr Willy. Mr Willy’s correspondence to employees on 10 June, 16 June, 4 July and correspondence to Mr Crumlin on 17 June 2021, consistently stated that the offer was for 48 casual employees to be converted at Brisbane to PPT employment and nothing more. 200
[247] As HPA did not clarify in Mr Willy’s revised offer that its position in respect of the appointment of the 48 PPT positions did not incorporate the previously (without prejudice) agreed process as of 9 June 2021, both parties reached agreement on the relevant Agreement wording having disparate understandings as to the implementation of the creation of up to 48 PPT positions.
[248] As the parties’ intentions as to how 48 casual employees would be elevated to PPT status under the Agreement is at odds, the Commission is left with interpreting the Agreement in a manner consistent with the language used in the Agreement. This requires focusing on the language of the Agreement itself. It is, as described by Kirby J in Amcor, ‘a text-based activity’ without regard to the subjective views of the parties. 201
[249] What the Agreement provides for is, that at BCT there will be a maximum number of 48 PPT employees and that the selection criteria will apply to permanent appointments. While the Agreement at Part B Schedule 1 Categories of Employment - BCT makes reference to supplementary employees in a primary pool and a secondary pool there is no link to employees in a particular pool being given preference in appointment to any of the 48 permanent positions.
[250] It is clear to the Commission that the wording of the Agreement in respect of the engagement of PPT employees does not fully reflect the understanding that the MUA and its members has presumed had been agreed by HPA. At the same time, BCT submit that the Agreement reflects its understanding of the final outcome of the negotiations which was agreed to by the workforce in voting to approve the Agreement.
[251] As there is no evidence of the objective intention of the parties, the Commission is unable to interpret an enterprise agreement in a manner other than based on what the Agreement states. As the Full Bench in Berri202 stated:
“The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome”. 203
[252] Clause 10 Recruitment And Promotion of the Agreement provides at 10.2 that the selection criteria (10.8) will apply to permanent appointments, which has application to the appointment of any casual employee to a PPT or PFT position.
[253] In respect to the first questionposed in the dispute application, the Agreement wording does not provide any support for the interpretation that is pressed by the MUA. At the commencement of the Agreement what is required is that as set out in Part B Schedule 1 Categories of Employment BCT at clause 2 of the Agreement.
[254] There is no ability to read into the Agreement that the newly created classification of permanent part-time or full-time employee must be appointed in the first instance from all primary or Pool A Supplementary employees, before it any appointment of Pool B Supplementary employees to permanent positions, as this wording does not appear in the Agreement.
Question Two
At the commencement of the Agreement, is the respondent required to apply, and comply with, the Selection Criteria Processes in clauses 10.6 to 10.9 of the Agreement to the higher level appointment of primary pool or pool A and/or secondary pool or pool B supplementary employees employed at the Port of Brisbane to permanent part – time employment, and subsequently to permanent full – time employment?
[255] The background to answering the second question posed in the dispute application, is as set out above in answering the first question.
[256] Having found that the understanding of the MUA as to how the appointment of casual or Supplementary employees from Pool A to permanent positions is to be conducted is not reflected in the Agreement; it is the wording of the Agreement that provides the manner in which appointment to a permanent position must occur.
[257] Clause 10 - Recruitment and Promotion of the Agreement sets out the process for promotion.
[258] Clause 10.1 states that permanent level appointment opportunities as they arise will be filled by trained and suitable people within the business, where available.
[259] Clause 10.2 states that for all permanent appointments, the Company (BCT) will apply the Selection Criteria.
[260] At clause 10.8 Selection Criteria for higher Level appointment the selection criteria is listed.
[261] All permanent appointments whether full-time or part-time are therefore subject to the terms of clause 10.8. Whether that is by converting from casual to permanent part-time (as stated in clause 35.7) or permanent part-time to permanent full-time as the positions are permanent, the appointment must occur by applying the Selection Criteria listed at clause 10.8.
[262] BCT is therefore required to apply and comply with the Selection Criteria process in clauses 10.6 to 10.9 of the Agreement for appointment of Permanent Part Time or Full Time employment without distinction between a Pool A or Pool B category of Supplementary/casual employees.
Question Three
If the answer to question two is yes in relation to primary pool or pool A and/or secondary pool or pool B supplementary employees, did the respondent apply, and comply with, the Selection Criteria Processes in clauses 10.6 to 10.9 of the Agreement to the higher level appointment of primary pool or pool A and/or secondary pool or pool B supplementary employees employed at the Port of Brisbane to part – time employment, and subsequently to permanent full – time employment, in August and September 2021?
[263] As stated above, clause 10 Recruitment and Promotion of the Agreement at 10.2 provides that the Company (in this case BCT) will apply the Selection Criteria to permanent appointments which includes the position of a Permanent Part Time employee as listed in clause 10.6.
[264] The Selection Criteria for higher level appointment (casual to permanent) is set out at 10.8.
[265] The Selection Criteria consists of points being either allocated or deducted under nominated headings and deems as ineligible persons without the physical ability and skills to undertake the inherent requirements of the role.
[266] At clause 10.7 is a reference to the role of the ERC in regard to the application of the Selection Criteria. The stipulated role of the ERC is stated as follows:
“10.7 The ERC Committee will have an oversight role in the verification of scoring and provision of data. …”
[267] Details of how the ERC is to operate is contained at clause 12 Employee Representative Committee (ERC) Meetings including that the parties plan to conduct a minimum of 12 monthly meetings per annum to meet with Company representatives to review matters related to the Agreement.
[268] The MUA submit that BCT has not complied with clause 10.7 of the Agreement and seek the Commission’s confirmation that this is the case. The basis for this submission is that BCT did not provide the ERC with any scoring or other data, or any oversight of their selection of employees for the PFT and PPT positions whether they be from a Pool A or Pool B. 204
[269] Mr Petersen, the Assistant Queensland Branch Secretary of the MUA, gave evidence that BCT had sent out the EOI for PPT positions to Pool A and Pool B casual employees without notifying the MUA that BCT had ‘reneged’ on the agreement to convert Pool A Supplementary employees to these positions. 205
[270] Mr Petersen’s evidence was that BCT refused to consult in relation to the recruitment process and the selection criteria regarding the EOI, and BCT refused to provide the ERC with the scoring data used for selection and oversight of the process. 206
[271] Mr Oliver, the Manager - HR Operations at BCT, gave evidence that he was tasked with the responsibility to fill up to 48 PPT positions at BCT. Mr Oliver drafted the EOI for these positions which he sent by email to all casual employees on 2 August 2021.
[272] The EOI were to be made by 20 August 2021.
[273] Upon receipt of the EOI, the candidates were scored and assessed in accordance with the Selection Criteria at 10.8 of the Agreement.
[274] Mr Oliver stated that he was copied into an email from Mr Petersen of 29 August 2021, which referred to clause 10.7 of the Agreement stating there was an expectation that this clause would be complied with by BCT, meaning that the ERC would have an oversight role in verification of scoring and provision of data before the roles are announced. Mr Oliver responded on 31 August 2021, advising that BCT would comply with all provisions of the Agreement.
[275] The offers of permanent employment were made to the successful applicants on 3 September 2021. 207
[276] On 6 September 2021, Mr Oliver received an email from Mr Petersen stating that the ERC has requested the data and an oversight of the selection criteria for the permanent positions which BCT had not provided.
[277] Mr Oliver states that he forwarded a redacted (employee names) copy of the scoring table to the ERC on 9 September 2021. 208 Mr Oliver accepted that it was not possible for the ERC or an employee to determine whether aspects of the Selection Criteria were accurate without the provision of employee names.209
[278] During Mr Oliver’s cross-examination, he expressed the view that there was no requirement to provide the data before a decision on appointment to a position was made. 210
[279] It was submitted by HPA that clause 10.7 is not a consultation clause and that the ERC has no role in the selection of candidates for any roles within HPA. 211
[280] The relevant wording of clause 10.7 is that:
“The ERC Committee will have an oversight role in the verification of scoring and provision of data.”
[281] In this instance the selection process was finalised and offers of permanent appointment made to the successful applicants before the ERC was provided with a redacted copy of the scoring table, and only following a request from Mr Petersen.
[282] The manner in which the appointment of the PPT positions at BCT was conducted as per clause 10.7 appears to be in stark contrast to that adopted at Port Botany by SICTL. The uncontested evidence of Mr Petersen was that at the same time as the BCT recruitment process was being conducted, the recruitment of Supplementary employees to permanent employment at Port Botany was also being undertaken. The Port Botany exercise involved a subcommittee where two MUA delegates and an official were involved and included being provided with data and having an oversight of the process. 212
[283] It is clear that the Port Botany process was not adopted in Brisbane by BCT.
[284] The written submissions of BCT contend that clause 10.7 does not require the ERC to check the accuracy of the scoring arising out of applying the Selection Criteria. The submission of BCT as to the oversight role the ERC has, is said to be:
a) verification in the storing (scoring?) of data (by BCT)
b) verification in the provision of data (to BCT) 213
[285] There appears to be some confusion with use of the words ‘storage and storing’ interchanged with the word ‘scoring’ in BCT’s written submissions. 214
[286] It is accepted that the ERC oversight role does not provide the ERC with a right of veto over any appointment that may be made by either SICTL or BCT. The use of the word ‘oversight’ means that the ERC is not the final decision maker, however the oversight role must be given its appropriate meaning in respect of the verification of scoring and provision of data.
[287] It cannot, on any reasonable interpretation of 10.7 be, as in this case, that the selection process is completed and offers made to employees before the role of the ERC is invoked. The definition of the word ‘oversight’ includes ‘to supervise’. 215 When this meaning is applied to what has occurred in this situation it cannot be held that the ERC was provided with an ‘oversight’ role in the process. The provision of data and scoring once the selection process is completed and appointments have been offered, deprives the ERC of any meaningful oversight role relating to the verification of scoring or provision of data.
[288] Further, the provision of the scoring data in a redacted fashion cannot enable the ERC to carry out its oversight role. If the ERC is to have an oversight role, as clause 10.7 states, it must occur before any decision and offers of appointments are made.
[289] If it was the case, as Mr Oliver understood, that it is sufficient for the ERC to view the data sometime after the employee appointments where ERC team members could ask questions and have anything they were unsure of clarified, 216 it would have been a simple exercise to state that or include in clause 10.7, words to the effect that the oversight role does not commence until after the selection criteria has been applied and offers of appointment have been made.
[290] The MUA also submit that in making the permanent appointments, BCT did not correctly apply the selection criteria in the case of employees who at the time of appointment did not meet the threshold requirements. Clause 10.8 deems as ineligible for higher level appointment employees without the skills to undertake the inherent requirements of the role.
[291] Mr Oliver’s evidence was that five candidates were deemed ineligible “on the basis of a lack of skill to undertake an inherent requirement of the role” (lashing). 217
[292] Mr Oliver states that the driving of shuttles is an inherent requirement of any stevedoring role including the PPT and PFT positions. 218 Two applicants were deemed ineligible for the positions as they lacked the physical ability and necessary skill to drive shuttles,219 whereas three employees who did not at the time have shuttle driving skills, were deemed to have the physical capacity to drive shuttles and the ability to complete the shuttle driving course which takes between 2-10 days and were deemed eligible under the Selection Criteria for appointment to the positions, as in Mr Oliver’s view they possessed the ‘imminent ability to meet the criteria’ as set out at 10.8.220
[293] The submissions of BCT do not engage with whether the three employees were eligible for appointment based on their ‘imminent ability’ or otherwise, but state that no employee was called to give evidence that they had been incorrectly scored. 221
[294] In the sense that no employee has given evidence that they have a grievance as to how they were scored, the question the MUA wants determined becomes an academic exercise as to whether it is a correct approach to as in Mr Oliver’s words accept an applicant’s ‘imminent ability to meet the criteria’ as set out at 10.8.
[295] The relevant threshold requirement under 10.8 is that applicants for appointment have the “Physical ability and skills to undertake (the) inherent requirements of the role”. Mr Oliver gave evidence that driving shuttles was a core requirement of the role and that two applicants could not meet this threshold with one applicant stating that he did not have the confidence and skill to safely drive a shuttle and did not consider that he ever would. The second applicant had been denied shuttle certification after numerous failed attempts and significant errors. 222
[296] Other than Mr Oliver’s evidence that any stevedoring role requires an employee to safely carry out lashing and undertake the driving of shuttles, 223 no duty statement of the permanent positions being applied for was in evidence.
[297] The Selection Criteria stipulates that a candidate must have the ‘skills to undertake the inherent requirements of the role’ to be eligible for appointment. ‘Skills’ may include a specific competency, but ‘skills’ also includes the ability that comes from knowledge, practice, aptitude, to do something well. 224
[298] It was not stated that as a prerequisite for the permanent positions that an applicant must be certified by BCT trainers as competent to drive shuttles before being considered eligible to apply for the positions. On this basis, where BCT considered that the three applicants in question possessed the skills to undertake shuttle driving, then ipso facto they satisfy the threshold requirement to be able to drive a shuttle, albeit that they are required to complete the necessary training to obtain shuttle driving certification.
[299] In respect of the third question posed in the dispute application, the Commission is firstly satisfied that BCT, by declining to share any of the scoring or other data with the ERC until after the completion of the selection and appointment of employees for permanent positions (and even then in a redacted form), did not act in compliance with clause 10.7 of the Agreement. That is, BCT did not allow the ERC to fulfil its oversight role in the verification of scoring and provision of data.
[300] Secondly, in respect of whether the Threshold Requirements of the Selection Criteria were applied correctly by BCT, the Commission is satisfied that on the evidence presented, there is no demonstrated misapplication of the threshold requirement for applicants to possess the skills to undertake the inherent requirements of the role in respect of three applicants who were not at the time of their appointment certified to drive shuttles.
DEPUTY PRESIDENT
Appearances:
Mr A Neal of Counsel for the applicant
Mr P Brown Solicitor for the respondent
Hearing details:
2021
27 October (Via Microsoft Teams)
Final written submissions:
Respondent
24 November 2021
Applicant
6 December 2021
Printed by authority of the Commonwealth Government Printer
<PR735349>
1 MUA email of 16 September 2021
2 AE512655
3 [2021] FWCA 4855
4 The Commission notes that BCT sought amendments to the questions on 15 September 2021, however these amendments were not accepted by the MUA.
5 Applicant’s submissions of 29 September 2021 at [2]
6 Ibid at [3]
7 Respondent’s submissions of 13 October 2021 at [30]
8 Witness Statement of W. Smith of 29 September 2021 at [1-3]
9 Ibid at [4-5] and Annexure WS1
10 Ibid at [6-7] and Annexure WS2
11 Ibid at [8]-[10]
12 Ibid at [11]
13 Ibid at [12]
14 Ibid at [13] and Annexure WS4
15 Ibid at [14]
16 Ibid at [15]
17 Ibid at [16-18] and Annexure WS5
18 Ibid at [19-21]
19 Ibid at [22-23]
20 Ibid at [24-27]
21 Ibid at [28-29] and Annexure WS6
22 Ibid at [30]
23 Ibid at [30]
24 Ibid at [32]
25 Ibid at [33]
26 Ibid at [34-36] and Annexure WS8
27 Ibid at [37]
28 Ibid at [38-40]
29 Ibid at [41-42]
30 Ibid at [43]
31 Ibid at [44-47]
32 Ibid at [47]
33 Reply statement of W. Smith of 20 October 2021 at [4-5]
34 Ibid at [7]
35 Ibid at [11]
36 Witness Statement of K. Loose Jones of 29 September 2021 at [2] and [4]
37 Ibid at [5]
38 Ibid at [6]
39 Ibid at [7]
40 Ibid at [9]
41 Ibid at [11-12]
42 Ibid at [13]
43 Ibid at [14]
44 Ibid at [15]
45 Ibid at [16]
46 Ibid at [31]
47 Ibid at [17-19]
48 Ibid at [18]
49 Ibid at [20] and annexure KJL3
50 Ibid at [21-22]
51 Ibid at [23]
52 Ibid at [24]
53 Ibid at [25]
54 Ibid at [26]
55 Ibid at [27] and annexure KJL5
56 Ibid at [28], annexure KJL6 and annexure KJL7
57 Ibid at [30]
58 Ibid at [31-33]
59 Ibid at [41-44], annexure KJL11, KJL12, annexure KJL13 and KJL14
60 Ibid at [45] and annexure KJL15
61 Ibid at [46-47] and KJL16
62 Ibid at [50]
63 Ibid at [51] and annexure KJL18
64 Ibid at [52]
65 Ibid at [54] and annexure KJL19
66 Ibid at [55] and annexure KJL20
67 Ibid at [56]
68 Ibid at [57-58]
69 Ibid at [60], annexure KJL22 and annexure KJL3
70 Ibid at [62]
71 Ibid at [63]
72 Ibid at [67] and annexure KJL27
73 Ibid at [68]
74 Ibid at [69]
75 Reply Statement of K. Loose Jones of 20 October 2021 at [3]
76 Ibid at [5]
77 Witness Statement of P. Petersen of 29 September 2021 at [1] and [5]
78 Ibid at [8]
79 Ibid at [9]
80 Ibid at [10-11]
81 Ibid at [12]
82 Ibid at [13-16]
83 Ibid at [19-20]
84 Ibid at [23]
85 Ibid at [26]
86 Ibid at [39-30] and Annexure PP2
87 Ibid at [31]
88 Ibid at [32]
89 Witness statement of A. Oliver of 13 October 2021 at [1]
90 Ibid at [1-2]
91 Ibid at [4]
92 Ibid at [5-7]
93 Ibid at [8]
94 Ibid at [9]
95 Ibid at [10]
96 Ibid at [11]
97 Ibid at [12]
98 Ibid at [13]
99 Ibid at [14-15]
100 Ibid at [16]
101 Ibid at [17]
102 The Commission notes that this is why the final number of ineligible candidates was 21 and not 29.
103 Witness statement of A. Oliver of 13 October 2021 at [18-20]
104 Ibid at [21-22]
105 Ibid at [24]
106 Ibid at [25]
107 Ibid at [26]
108 Ibid at [27]
109 Ibid at [28] and Annexure AO12
110 Ibid at [30]
111 Ibid at [31]
112 Ibid at [32]
113 Witness statement of H. Mihalopoulos of 13 October 2021 at [1]
114 Ibid
115 Ibid at [2]
116 Ibid at [4]
117 Ibid at [5]
118 Ibid at [6-7]
119 Ibid at [8]
120 Ibid at [18]
121 Ibid at [20-21]
122 Ibid at [22]
123 Ibid at [23]
124 Ibid at [24]
125 Ibid at [25]
126 Ibid at [27-29]
127 Ibid at [29]
128 Ibid at [30]
129 Ibid at [31]
130 Ibid at [33]
131 Ibid at [34]
132 Ibid at [35]
133 Ibid at [97]
134 PN1240-1244
135 Statement of H. Mihalopoulos of 13 October 2021 at [36]
136 PN1366-1373
137 Statement of H. Mihalopoulos of 13 October 2021 at [37]
138 Ibid at [38-41]
139 Ibid at [43-44]
140 Ibid at [45-48]
141 Ibid at [49]
142 Ibid at [51-52] and [97]
143 Ibid at [53-54]
144 Ibid at [56-59]
145 Ibid at [60]
146 Ibid at [61-62]; HM12
147 Ibid at [63-64]
148 Ibid at [65]
149 Ibid at [66]
150 Ibid at [67]
151 Ibid at [68]
152 Ibid at [69]
153 Ibid at [70]
154 Ibid at [71]
155 Ibid at [72]
156 Ibid at [73]
157 Ibid at [74]
158 Ibid at [84]
159 Ibid at [85-86]
160 Ibid at [90]
161 Ibid at [91]
162 Ibid at [95-96]
163 Ibid at [98]
164 Ibid at [101]
165 Ibid at [102]
166 Clause 14.4.2 of the Agreement
167 See Fair Work Bill 2008 Explanatory Memorandum at item 2733
168 [2014] FWCFB 7447
169 [2006] FCA 813 at [53]
170 [2014] FWCFB 7447 at [21]
171 [2017] FWCFB 3005
172 (2005) 222 CLR 241
173 Ibid at [2]
174 Ibid at [67]
175 [2018] FCAFC 131
176 Question 2.1 of the Form F10 at [4]
177 Witness statement of K. Loose Jones of 29 September 2021 at [13-15]
178 Applicant’s written submissions of 29 September 2021 at [60]
179 Ibid at [62]
180 Ibid at [65]
181 Ibid at [7] and [9]
182 Ibid at [70]
183 The use of the differing words ‘upgrades’ and ‘conversion’ was not said to be of any consequence - PN1378
184 Witness statement of H. Mihalopoulos of 13 October 2021 at [82]
185 Ibid at Attachment HM7
186 Ibid at Attachment HM8
187 Ibid at [52]
188 Witness statement of W. Smith of 29 September 2021 at Attachment WS9
189 Witness statement of H. Mihalopoulos of 13 October 2021 at [66]
190 The memorandum from John Willy of 4 July 2021 erroneously states the conversion requirement is contained at clause 2.1.2 of Part B Schedule 1
191 Respondent’s written submissions of 13 October 2021 at [29]
192 PN1241
193 PN1379
194 PN1366
195 PN1380
196 PN1380
197 Witness statement of K. Loose Jones of 29 September 2021 at [55] and Attachment KJL20
198 Witness statement of H. Mihalopoulos of 13 October 2021 at [72]
199 PN1248-1251
200 Mihalopoulos statement attachments HM7, HM2, HM8 and HM9
201 (2005) 222 CLR 241 at [67]
202 [2017] FWCFB 3005
203 Ibid at Point (2) of [114]
204 Applicant’s written submissions of 29 September 2021 at [81-84]
205 Witness statement of P. Petersen of 29 September 2021 at [23]
206 Ibid at [29] and Annexure PP2
207 PN1031
208 Witness statement of A. Oliver of 13 October 2021 at [35]
209 PN1068
210 PN1033
211 Respondent’s written submissions of 24 November 2021 at [49]
212 Witness statement of P. Petersen of 29 September 2021 at [31]
213 Respondent’s written submissions of 24 November 2021 at [51]
214 Ibid at [59], while this issue has been raised in the MUA’s written reply, no correction has been advised of by BCT
215 Macquarie Online Dictionary
216 PN1042
217 Witness statement of A. Oliver of 13 October 2021 at [11]
218 Ibid at [12]
219 Ibid
220 Ibid at [13]
221 Respondent’s written submissions of 24 November 2021 at [80]
222 Witness statement of A. Oliver of 13 October 2021 at [12]
223 Ibid at [11] and [12]
224 Macquarie Online Dictionary
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