Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd
[2023] FWC 806
•3 APRIL 2023
| [2023] FWC 806 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
v
DP World Brisbane Pty Ltd
(C2021/5082)
| VICE PRESIDENT ASBURY | BRISBANE, 3 APRIL 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)].
Background
The Maritime Union of Australia Division (the MUA/the Union) of the Construction, Forestry, Maritime, Mining and Energy Union made an application to the Fair Work Commission (the Commission) pursuant to s. 739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute under the dispute resolution procedure in the DP World Brisbane Enterprise Agreement 2020. The Respondent is DP World Brisbane Pty Ltd (DP World), the operator of the container stevedoring facility at the Brisbane terminal.
The DP World Brisbane Enterprise Agreement 2020 (the Agreement) was approved by the Commission on 22 December 2020 and commenced operation on 29 December 2020. The MUA, being a bargaining representative for the Agreement, is covered by the Agreement. The nominal expiry date of the Agreement is 30 September 2023. The Agreement is structured into Part A and Part B. Part A contains common terms and conditions that apply nationally to each of the stevedoring operations located at the four terminals in Sydney, Brisbane, Melbourne and Fremantle respectively. Part B of the Agreement contains local or site-specific terms and conditions that apply at the Brisbane terminal.
Clause 9.1 of the Agreement provides inter alia that:
The Company acknowledges Employees may be represented by the Union and its officers appointed, in accordance with the Union's rules. Subject to the relevant provisions of the Act an officer of the Union shall be granted right of entry into Company operations at any time to represent Employees of the Company for the purpose of ensuring observance of this Agreement, the Stevedoring Award, an order of FWC binding on the Union, or to represent Employees in other matters pertaining to the employment relationship between the Company and its Employees…
On 11 August 2021, a Bulletin was issued by DP World requiring employees at its Brisbane facility to attend one-on-one employee feedback sessions, scheduled to commence from 12 August 2021. The Bulletin states that:
“Operations Supervisors will provide employees with feedback in the areas of Performance, Attitude, Communication and Safety. It will also enable employees to seek feedback as well as ask any relevant questions, Additionally, the Company will provide data relating to Safety Interactions being conducted at the terminal and the main areas of focus so far this year.
These discussions also provide an opportunity to listen to feedback from our people and take appropriate action. The One-on-One discussions aim to assist individual to perform to the best of their ability, develop their potential and achieve high performance in their careers. Support people are not permitted for this process as has been the case previously.
The Company expects that employees will participate in the process constructively in line with Company values.”
On 11 August 2021, the MUA sought to exercise its right of entry under clause 9 of the Agreement to attend the one-on-one feedback sessions if employees attending the session requested representation and support from the MUA. This request was refused by DP World on the basis that Union representation is not permitted at one-on-one feedback sessions. On 18 August 2021, the MUA initiated steps to resolve the dispute with DP World management, but the dispute remained unresolved.
The Dispute
The matter was not resolved by conciliation, and it is not in issue that the Commission is empowered to arbitrate the dispute in accordance with the Dispute Resolution Procedure in clause 29.2.7 of the Agreement. The parties have agreed on the following question for arbitration:
“Does clause 9 of the Enterprise Agreement permit employees to be represented by the Union in ‘one-on-one employee feedback sessions’ when those sessions involve Operations Supervisors providing ‘employees with feedback in the areas of Performance, Attitude, Communication and Safety’?”
The MUA contends that the clear and unambiguous language of clause 9.1.1 of the Agreement entitles employees to be represented by the MUA or its appointed officers in one-on-one feedback sessions because the sessions clearly involve “matters pertaining to the employment relationship between the Company and its Employees”, as provided for in clause 9.1.1. In addition, the MUA contends that the one-on-one feedback sessions were not conducted for the purposes of holding constructive discussions with the employees, but rather, the employees were made to “feel bullied” or “targeted” by being shown “a pre-prepared report containing supposed quotes from unnamed managers suggesting that the employee was not working hard, or fast enough and that the employee had a bad attitude and complained too much at Toolbox Meetings”.
DP World rejects the allegation that the feedback sessions were “an occasion for intimidation or abuse” and stated that the feedback sessions have had a long history of being conducted with the employees individually, and employees never requested a Union representative to be present. Clause 9 of the Agreement is headed “Employee Representation” and clause 9.1.1 is headed “Right of Entry of Union Officials”. DP World contends that clause 9.1.1 sets out a right of entry regime whereby the MUA may enter DP World’s premises for specific purposes, subject to certain requirements being met. It does not, nor has it ever, extended itself to create a right of representation beyond the matters the Agreement clearly covers. In DP World’s view, the feedback sessions are not regulated by the Act, the Award or any provisions of the Agreement and this can be contrasted with other provisions of the Agreement, which specify the rights of employees to be represented in particular matters by the Union. Thus, DP World argues that the feedback sessions “sit squarely within the confines of managerial prerogative” and are not an issue “which the parties have over the long history of bargaining sought to regulate”.
Relevant Provisions of the Agreement
Clause 9 of the Agreement in which the disputed term appears, provides that:
“9.0 EMPLOYEE REPRESENTATION
9.1 Right of entry of Union officials
9.1.1 The Company acknowledges Employees may be represented by the Union and its officers appointed, in accordance with the Union's rules. Subject to the relevant provisions of the Act an officer of the Union shall be granted right of entry into Company operations at any time to represent Employees of the Company for the purpose of ensuring observance of this Agreement, the Stevedoring Award, an order of FWC binding on the Union, or to represent Employees in other matters pertaining to the employment relationship between the Company and its Employees, provided always:
(a) The Union officer first advises the site manager of his/her intended arrival on site in accordance with procedures determined by the Company and notified in writing to the Union’s National Secretary and relevant Branch Secretary.
(b) The subsequent conduct on site by that officer or by Company Employees shall not be such as to interfere with or otherwise adversely impact on the operations of the Company, the responsibility for which resides with the Union and that officer in accordance with Company procedures.
(c) In the event of a breach of this sub-clause, the Company may act to formally revoke a right of entry granted under this clause by first discussing its intention to do so with the Union’s National Secretary. Where the Company formally revokes an officer's right of entry in writing to the Union’s National Secretary, the relevant provisions of the Act shall then apply in respect of the officer concerned. Nothing in this clause prevents the Company from restoring a right of entry under this clause if it sees fit to do so.
9.2 Employee Representatives
9.2.1 Employees of the Company are employed to carry out work for which they are engaged in accordance with their contract of employment and the terms and conditions of this Agreement, the Company recognises the right of the Union to appoint Employees of the Company and the right of such Employees to represent their fellow Employees subject to the provisions of clause 9.2.2.
9.2.2 The Company will allow Employee Representatives absence from their normal duties without loss of pay to represent the interests of their fellow Employees, provided always:
(a) The relevant Union Branch Secretary advises the Company site manager in writing of the appointment of the Employee Representative
(b) Such absence is for bona fide purposes only (e.g. preparation for collective bargaining, address new Employees and unpaid leave as agreed by the Company) and the Employee Representative first obtains agreement from their immediate supervisor, and such permission shall not be unreasonably withheld, of the expected period of absence for the purpose of enabling the supervisor to make alternative work arrangements beforehand.
(c) The subsequent conduct by the Employee Representative or their fellow Employees shall not be such as to interfere with, or otherwise adversely impact on, the operations of the Company.
(d) In the event of a breach of this sub-clause, the Company may act to formally revoke the right of an Employee Representative to absence from normal duties with pay, but not the right of representation, by first discussing its intentions with the relevant Union Branch Secretary.
(e) Where an Employee Representative's right to absence from normal duties with pay under this sub-clause has been formally revoked by the Company in writing to the Employee concerned and the Union, the Employee Representative may only leave his/her workplace under conditions determined by the Company. Nothing in this clause prevents the Company from restoring an Employee Representative's right to absence from normal duties with pay under this subclause if it sees fit to do so.
9.3 Employee meetings
9.3.1 The Company recognises that Employees may need to meet in relation to issues concerning the workplace or related issues. Subject to reasonable prior advice to the site manager by an Employee Representative, Employees may use Company premises for such purposes provided the meeting is conducted in a rostered break from actual work such as meal times and provided also the meeting does not extend into actual working time, the responsibility for which rests with that Employee Representative.
9.3.2 Subject to bona fide conditions determined by the site manager, such meetings may extend beyond the rostered break provided that prior request for such is made by an Employee Representative and not otherwise and such extension shall not be unreasonably refused.
9.4 Union meetings
9.4.1 The Company recognises that its Employees have a right (subject to appropriate notice being provided to the Company and then subject to the Company’s approval and such approval will not be unreasonably withheld) to participate in the affairs of the Union through its internal processes and through this Agreement the Union and its officers and members being Employees of the Company recognise their obligation to minimise disruption to Company operations in so doing.
9.4.2 Where the Union requests meetings of its members, Employees shall be entitled to attend such meetings without loss of pay provided the following provisions apply on an annual basis:
(a) Two Union meetings off site up to 4 hours duration. Employees working on the day shift shall be permitted to leave their designated point of work 30 minutes prior to the commencement time of the meeting, subject to working through the first rest break. The conclusion of such meetings shall be 30 minutes prior to the nominal evening shift starting time in each designated port.
(b) In addition to the above, Employees shall be entitled to attend 3 yard meetings per annum of up to 2 hours duration at a time to be agreed by the Company. If the yard meeting is held offsite, there shall be no consideration given to travel time.
(c) Nothing in the above mentioned shall prevent meetings being conducted at different times following agreement between the parties.
(d) The Union shall provide the Company with a written request for meetings specified in 9.4.2 (a) at least 21 days prior to such a proposed meeting to allow the Company to discuss logistical arrangements with the Union and plan operations accordingly and to mutually agree a date and time. The Company shall reply to such a request within 48 hours of receipt of the request.
(e) Where an unforeseen operational difficulty or emergency arises subsequent to arrangements being made in accordance with 1.1(d). Company advises the relevant Union Branch Secretary in writing setting out the details of the unforeseen operational difficulty or emergency, the Union will make all necessary arrangements to ensure sufficient, qualified Employees remain or are provided to undertake any work required in respect of that unforeseen operational difficulty or emergency.
(f) Entitlement to pay under this sub-clause may only continue subject to attendance by the Employee at such meetings, proof of which if required. Responsibility for providing proof resides with the Employee concerned.
(g) In the event of a breach of this clause or of 9.3, the Company without limitation may act to revoke the right of an Employee to continue their right to pay whilst attending Union meetings under the provisions of this clause by also advising its intentions to the Union National Secretary.
(h) Subject to the abovementioned procedures being followed, the Company may authorise further meetings of Employees to deal with Company related matters.
9.5 Dispute procedure
Where the Company exercises its rights to revoke an entitlement under this clause and the Union disagrees with that decision, subject to there being no stoppage of work as a result of the decision of the Company, the Union may refer the matter in dispute to FWC for conciliation and arbitration if necessary.”
In relation to DP World’s contention that clause 9.1.1 can be contrasted with other provisions of the Agreement which specifically confer an entitlement upon employees to be represented by the Union, those provisions are said to be clauses 21.7.5 and 21.9.3, clauses 28.2.2 and 28.3, and clauses 29.2.2, 29.2.3 and 29.2.5. Clauses 21.7 and 21.9 set out the processes and procedures for dealing with Health and Safety Issues and Incidents. Relevantly, clauses 21.7.5 and 21.9.3 provide as follows:
“21.7.5 Employees have the right at any stage of the processes described herein to be represented by a Union official however this does not preclude the continuation of operations/work. The Company will continue to recognise that a HSR or employee nominated safety representative may participate in the process.
…
21.9.3 As set out above, Employees have the right at any stage of the process outlined in this clause to be represented by a Union official. However, the unavailability or absence of a Union Official shall not unreasonably delay the resolution of a safety issue or incident, exploration of alternative solutions, conducting investigations or a return to work.”
Clauses 28 sets out the personal grievance procedures by which employees may raise with the company a complaint in relation to being passed over for promotion or training opportunity or action taken by the company which is unjustifiable. Relevantly, clauses 28.2.2 and 28.3 provide as follows:
“28.2.2 Management shall reconsider all aspects of the case and, if requested, give the applicant and any Union representative he/she chooses the opportunity to put his/her case personally.
…
28.3 In the case of a grievance described in 28.1.2, the Employee allegedly aggrieved, or his/her Union representative may give notice to management of his/her concern within 30 days of the action being taken or advice being given to the individual, whichever is the latter. In the event that the concern cannot immediately be alleviated by management, depending on the nature of the alleged grievance, one or more of the following options shall be adopted as a means of its resolution:28.3.1 Discussions between management and Union representative;
28.3.2 Reference to a mutually agreed conciliator/arbitrator.
28.3.3 Reference to the FWC for conciliation.”
Clause 29 contains the Dispute Resolution Procedure under the Agreement. Clauses 29.2.2 and 29.2.3 deal with employee’s representation in Step 1 Site Based Discussions and clause 29.2.5 deals with employee’s representation in Step 2 National Level Discussions. Relevantly, these clauses provide that:
“29.2.2 If the dispute is not resolved, the parties will arrange further discussions including a meeting on site involving more senior levels of management, Employee Representatives and/or Union officials. In advance of this meeting the nature of the dispute must be particularised and must contain desired resolution provided in writing.
29.2.3 If the dispute, clearly identified, arises in accordance with this clause within a representative body such as an ERC meeting Step 1 in the process will be considered to have been fulfilled.
…
29.2.5 If the dispute arises in accordance with this clause within a higher representative body such as a National EBA review then Step 2 in the process will be considered to have been fulfilled.”
Directions and Hearing
Directions were issued requiring that the parties file and serve written outlines of submissions and statements of evidence outlining the evidence of each witness to be called at the hearing. DP World’s material was also required to respond to the MUA’s material, and the MUA was directed to provide any further material in reply. All material was required to be filed and served prior to the hearing and the Directions stated that witness statements were designed to take the place of evidence-in-chief and that leave must be sought at the hearing to adduce further evidence-in-chief.
A hearing was conducted by video conference on 4 October 2022. Permission was granted for DP World to be legally represented on the basis that I was satisfied that the matter is complex, as it involves the proper construction of an enterprise agreement, and allowing DP World to be legally represented would enable the matter to be dealt with more efficiently. At the hearing, the MUA was represented its National Legal Officer, Mr K Bond and DP World was represented by Mr S Crilly of Seyfarth Shaw Australia.
Evidence for the MUA was given by:
· Mr Michael McLennan, an employee of DP World[1];
· Mr Adrian Evans, Divisional Assistant National Secretary for the MUA[2]; and
· Mr Michael Cope, National Paralegal for the MUA[3].
Evidence for DP World was given by:
· Mr Scott Eadie, General Manager Operations for DP World until April 2021[4].
Mr Cope was not required for cross-examination and his statement was admitted into evidence without objection. Other witnesses gave their evidence by video and were cross-examined.
Approach to construction of enterprise agreements
The cases dealing with the approach to the task of construing an enterprise agreement were distilled into principles and set out in a Decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri) as follows:[5]
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
These principles were also set out by the Full Court of the Federal Court in Workpac Pty Ltd v Skene[6] as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); 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 (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). 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: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” (citation omitted)
In AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital[7], a Full Bench of the Commission also distilled the principles relevant to the construction of enterprise agreements from the Full Court of the Federal Court majority in James Cook University v Ridd[8] as follows (with citations removed and some paraphrasing):
· The starting point is the ordinary meaning of the words, read as a whole and in context.
· A purposive approach is preferred to a narrow or pedantic approach – the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.
· Context is not confined to the words of the 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.
· Context may include ideas that gave rise to an expression in a document from which it has been taken.
· Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.
· A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.
· Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.
In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine[9] a Full Bench of the Commission held that the context of an agreement provision is significant. In this regard, the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA[10] emphasising the following matters:
· Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means[11] and there is always some context to any statement;[12]
· Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;[13]
· To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;[14]
· The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;[15] and
· Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction[16]
The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning. In principle 15 in Berri the Full Bench dealt with the relevance of post-agreement conduct to the construction of the terms of an enterprise agreement citing the judgment of Gray J in ALHMWU v Prestige Property Services Pty Ltd[17] in which his Honour observed that:
“I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken however, to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.”[18]
In that case Gray J then went on to observe that the case he was dealing with was not one where a party had changed its mind and gone back on a common assumption but rather, was a case where no common assumption ever existed.[19] Also relevant in the present case are the observations his Honour made in Shop Distributive and Allied Employees’ Association v Woolworths Limited[20] in relation to the use of terminology in various iterations of an agreement, as follows:
“If the presumption of consistent use of terminology is so weak in legislative drafting, it must be even weaker in the context of a Certified Agreement. Typically such agreements are the product of hard negotiation, in which the wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are often transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.”
I have applied these principles in determining the matters in dispute.
Evidence and Submissions
MUA
Mr McLennan is an MUA delegate and a long-standing employee of DP World in Brisbane, since about 2000. From 2000 to 2021, Mr McLennan was an elected representative on the Employee Representative Committee (ERC). He was also a member of the MUA committee for the negotiation of Part A of the Agreements in 2008, 2011, 2016 and 2020. Mr McLennan said that DP World has been conducting one-on-one sessions with employees since about 2012 or 2013. During those sessions, an employee may be reviewed for their crane rate performance and receive a performance rating out of 100. However, over the years, he was of the view that the sessions have morphed from giving employees detailed feedback to “merely showing employees a pre-prepared report containing supposed quotes from unnamed managers suggesting, for example, that an employee was not working hard, or fast enough, and that the employee had a bad attitude and complained too much at Toolbox Meetings.” Further, Mr McLennan stated that DP World refuses to provide employees with a copy of the pre-prepared reports.
In about 2016, Mr McLennan received reports from various employees that they were criticised during one-on-one sessions about matters such as “being too lazy, taking too many toilet breaks, putting too many machines out, and not working fast enough” and the employees felt that the one-on-one sessions “were an awful experience in which they felt bullied and fearful that they were being targeted for future disciplinary action.” Under cross-examination, Mr McLennan accepted that the present proceedings are the first in which a dispute has been notified to the Commission in relation to the one-on-one sessions. Mr McLennan also said that it is a concern that part of the process of the one-on-one meetings is that employees are not allowed to take a copy or a photo of their review report making it difficult to pursue a grievance.
According to Mr McLennan, DP World does not carry out one-on-one meetings annually, or even regularly. He stated that he can only remember attending about 5 one-on-one sessions since being employed by DP World in about 2000. He recalled in 2020, DP World missed his one-on-one meeting and subsequently required him to attend a one-on-one session about 4 months later than when he was due to have it. Mr McLennan stated that DP World does not allow employees to have Union delegates or officers represent or support the employees in one-on-one sessions and that he had verbally challenged this with management on numerous occasions. Further, Mr McLennan said that he is aware that employees of DP World at Fremantle, Melbourne and Sydney are not required to attend one-on-one meetings.
Under cross-examination, Mr McLennan was asked about Mr Eadie’s evidence that Mr McLennan had attended at least 8 one-on-one meetings since 2010. Mr McLennan variously said that he could not recall when the meetings started, initially they were very basic, and morphed from scores being provided to comments (some derogatory) about performance, in 2016 – 2017. In response to the proposition that he had attended a one-on-one meeting every year from 2016 – 2021, Mr McLennan said that he would have to accept this but would need to check his employee records to verify. Mr McLennan also said that to the best of his knowledge the statement that such meetings were not conducted regularly was correct and that there were multiple positions from various employees that he had spoken to about how many they had attended and when the meetings started.
In 2016, when Mr McLennan was asked to attend a one-on-one feedback session, Mr McLennan informed DP World that he wanted a Union representative to be present. According to Mr McLennan, the Operations Superintendent for DP World, Mr Scott Eadie, replied to the effect of “It’s not a good idea to challenge this, just have the one-on-one meeting.” Mr McLennan said he felt uncomfortable not having a Union Delegate present and refused to participate in the one-on-one session without Union representation. He then raised a dispute under the dispute resolution procedure in the Agreement, alleging that DP World’s refusal to allow him to be represented by the Union was in contravention of clause 9 of the Agreement.
On 23 and 24 August 2016, Mr McLennan emailed MUA officials informing them that DP World was taking disciplinary action against him for his failure to attend one-on-one sessions in the absence of a Union representative. In the emails, Mr McLennan also said that DP World maintained the position that clause 9 did not apply to one-on-one sessions or permit employees to have Union representation. It was also stated by Mr McLennan that DP World had indicated that one-on-one feedback sessions would be conducted every 6 month and records of the sessions would be placed on the employee’s file to be used as basis for considering promotion. Mr McLennan also expressed the view that the one-on-one sessions were “another tool in the bosses’ bag to individualize the workforce and de-unionize”.
Mr McLennan stated that he received a written warning for his failure to attend the one-on-one meeting and that it is common knowledge amongst his co-workers that he was disciplined for “requesting to have a delegate present at the one-on-one meetings”. Mr McLennan said he is aware that other employees had also had their requests for Union presence in the sessions denied, but those employees were “scared to push the issue for fear of disciplinary action taken against them”. As such, as far as Mr McLennan is aware, no other employee has outright refused to attend a one-on-one meeting without Union representation.
Mr McLennan expressed the view that when employees receive negative feedback during one-on-one meetings, for example, where an employee is told that they need to lift their crane rate, DP World made no effort to train, improve or help employees to enable them to achieve a better rate. He said he is aware that safety incidents have occurred because of employees driving faster in order to get their rates up after receiving negative feedback. Under cross-examination, Mr McLennan agreed that the Agreement provides at Part A Schedule 2, for selection criteria in relation to who gets trained when training is available. In relation to the safety incidents referred to in his evidence, Mr McLennan accepted that he did not contact the Queensland Safety Regulator about such incidents, notwithstanding that he was a member of the Site Safety Committee. Mr McLennan said that he has never been a Health and Safety Representative (HSR) and was off the Safety Committee before there were HSRs voted into the workplace. Mr McLennan said he did not speak to a HSR about these safety incidents other than to state that there were multiple times where there was no HSR on the shift or it was 10 minutes to the end of a midnight shift, and he could not be expected to ring the HSR then.
In relation to the bargaining for the current Agreement, Mr McLennan attended a meeting with representatives from both the MUA and DP World on 12 September 2017. At the meeting, Mr McLennan said that the MUA expressed its opposition to one-on-one sessions and raised several concerns, including the ability of DP World to use the feedback for disciplinary actions and the flaws in scoring and feedback. On 7 December 2017, an ERC meeting, attended by Mr McLennan, Mr Eadie and others, was held in which the issue of one-on-one sessions was discussed. Mr McLennan said that the ERC pointed out that “a majority of employees at DP World did not support the process” but DP World maintained its position that those sessions would continue to be held and that it was a matter outside of the Agreement. Mr McLennan noted that “in the current Agreement, and all previous iterations of the Agreement, there has never been an agreement between the Union and DP World in relation to Union representation of employees at one-on-one meetings.”
Mr McLennan stated that there is significant opposition in the workforce to DP World’s position of prohibiting Union representation at one-on-one meetings. In approximately 2017 or 2018, Mr McLennan recounted that a survey of members was conducted by the ERC on how employees felt about certain issues, including the installation of cameras and the one-on-one representation issue. It is said that about 94% of those who responded to the survey were in favour of having a Delegate in the one-on-one meetings. According to Mr McLennan, the survey data was presented to DP World management, but they refused to accept the survey and accused the ERC of doctoring the results.
Under cross-examination, Mr McLennan agreed that the survey referred to in his evidence asked two questions about matters that were causing concern in the workplace at the particular time: cameras in straddle cranes and whether members agreed or disagreed with the process of the one-on-one meetings. Mr McLennan also agreed that the survey question in relation to the one-on-one meetings did not say anything about having a representative at a meeting but maintained that his statement that 94% of the respondents to the survey were in favour of representation, was based on a yard meeting to obtain feedback about why people may have voted in a particular way.[21] Mr McLennan also maintained that the one-on-one meetings have the effect of individualising and de-unionising the workforce. In response to the proposition that he was simply objecting to employees meeting with the Company without an MUA representative present, Mr McLennan said that his objection was employees being asked to attend a meeting on their own without the ability to have a support person, if they request it.[22]
Mr Evans is the Divisional Assistant National Secretary for the MUA which represents the industrial interests of employees who are engaged in stevedoring operations throughout Australia. Mr Evans has been involved in enterprise agreement negotiation with DP World as a delegate and official since 2001 and in various industrial matters that have arisen over the years at DP World.
Mr Evans gave evidence about the discussions between the MUA and DP World over the issue of Union representation in one-on-one sessions during the negotiation of Part A of the Agreement. Mr Evan said that in February 2017, the MUA Part A committee attended a meeting with DP World and the position taken by the MUA was that a Union delegate or official should be present as a support person during one-on-one sessions. Minutes of the meeting were taken respectively by the MUA and DP World. On 11 September 2017, the MUA sent DP World a list of outstanding issues for further discussion at a meeting on 12 September 2017 and included in the list was the ongoing issue of one-on-one feedback session. The issue of representation in one-on-one sessions remained a source of disagreement. Mr Evans stated that the Union has never agreed to one-on-one performance reviews at any DP World site without employees having access to representation if they so choose.
Mr Evans stated that the representation issue in one-on-one sessions has been a subject of dispute at Fremantle and Sydney where the outcome was that DP World withdrew the one-on-one review sessions; the issue was also disputed in Melbourne resulting in employees being allowed representation if they elected; and similarly, the issue has also been subject to dispute in Brisbane, even though the matter had not previously been escalated to arbitration at any DP World site. Mr Evans commented that any one-on-one sessions that had occurred in the past, did not occur on a regular basis, were not provided for in any workplace policy, and were not mentioned in the Agreement.
In relation to the present dispute at the Brisbane terminal, Mr Evans said that DP World underwent a significant structural change in 2013 with 33% of the workforce being made redundant. Mr Evans observed that employees felt incredibly vulnerable at that time and desperate to keep their employment. It was within this timeframe where DP World introduced one-on-one sessions in Brisbane. Mr Evans said the employees did not agree to that workplace change but expressed concerns that they may put their employment at risk if they were to raise the issue with management. According to Mr Evans, the warning issued to Mr McLennan, contributed to the fear of declining to attend one-on-one meetings without Union representation.
In Mr Evan’s view, the presence of a support person would not hinder the Respondent’s ability to provide feedback as outlined in the Bulletin issued on 11 August 2021. However, denying the presence of a support person to an Employee is said to deny the employees a fair and transparent feedback process.
Under cross-examination, Mr Evans agreed that he has never been an official of the Queensland Branch of the MUA but maintained that while he has not regularly visited the Brisbane Terminal, he has been there in his role as National lead negotiator for Part A of the Agreement. Mr Evans also said that he has a direct line of contact with Delegates at the Brisbane terminal on a day-to-day basis. Mr Evens was not aware that the one-on-one meetings in Brisbane started in 2010. Mr Evans maintained that refusing employees the right to have a representative at a one-on-one meeting denied employees a fair and transparent process on the basis that there may be two managers present and that even if there was only one manager present, a statement that was made at the meeting could be denied. Mr Evans also pointed to emails appended to Mr Eadie’s statement, where he had stated to management of the Respondent that they should remind the VSEs that the scoring for their promotions is upcoming and said that this is a “threatening undertone”.
In response to the proposition that the MUA objects to employees meeting individually with the Company without a Union representative present, Mr Evans said that the MUA objects to the Company saying that when an employee requests representation, they cannot have it. Mr Evans also rejected the proposition that the MUA’s view is that the Company is attempting to de-unionise the workforce and said that it is more about intimidating workers without their right to representation.
Mr Cope is a National Paralegal for the MUA. The evidence of Mr Cope is that a former employee of DP World, Mr Craig Hancock, also received a letter signed by Mr Eadie, informing Mr Hancock that he was required to attend disciplinary meeting and that DP World was contemplating disciplinary action against Mr Hancock for his refusal to attend the one-on-one feedback sessions without a support person. Mr Cope tendered the letter, dated 30 August 2016 which states that Mr Hancock was issued with “the fair and reasonable direction … to attend a 1:1 discussion with your supervisor to provide you with feedback on your performance.” After setting out information in relation to the purpose of the meeting, the letter states that there is no requirement for Mr Hancock to have a support person as this is not a disciplinary process. The information in relation to the purpose of the meeting includes: “Improve a person’s awareness to influence their performance by closing the awareness gap between how someone sees themselves vs. how other often see them and this can help someone improve.” The letter states that Mr Hancock has refused to attend the 1:1 meeting and is requested to attend a disciplinary meeting to discuss his refusal.[23]
The MUA submits that it has consistently taken the position that clause 9 of the Agreement permits Union officers or delegates to represent employees in one-on-one feedback sessions. The MUA said that the language of the Agreement could not be more clear or unambiguous. Clause 9.1.1 explicitly states that “employees may be represented by the Union and its officers” in “matters pertaining to the employment relationship between the Company and its Employees”. The Bulletin issued by DP World to its employees indicated that one-on-one feedback sessions are designed to “provide employees with feedback in the areas of Performance, Attitude, Communication and Safety” These matters are said to be “indisputably fundamental to any employee-employer relationship” and the one-on-one feedback sessions accordingly involve matters pertaining to the employment relationship. The MUA stated that the plain language of the Agreement compels a conclusion that clause 9 permits employees to be represented by the Union in one-on-one feedback sessions.
With respect to the one-on-one feedback sessions, the MUA submitted they are not the type of “traditional feedback sessions” whereby employees and their supervisors sit down and engage in constructive discussions in relation to the employee’s performance, concerns and satisfaction. The MUA stated that according to reports from its members, the Operations Managers at the meetings “did nothing more than show employees a pre-prepared report containing supposed quotes from unnamed managers suggesting that the employee was not working hard, or fast enough and that the employee had a bad attitude and complained too much at Toolbox Meetings”. Toolbox Meetings are meetings with the workforce that occur prior to scheduled shifts in which employees discuss safety issues and raise other concerns. The MUA asserted that, despite requesting copies of the pre-prepared reports from DP World, the Operations Managers consistently refused such requests.
Further, the MUA stated that during the one-on-one feedback sessions, employees would be presented with a statistical analysis of the speed at which they performed various tasks associated with their role and the Operations Managers would intimate that if the speed of the employee’s performance was below the company average or if the employee did not improve their performance, the employee could be subject to future disciplinary action. The MUA asserted that reports from the employees were that they felt “bullied into prioritising working fast over working safe”. As such, the MUA said that it is important for employees to be represented in these sessions and it has consistently challenged attempts by DP World to hold one-on-one sessions with members without affording them their right to Union representation.
As to the historical context in respect of the one-on-one feedback sessions, the MUA stated that during the bargaining for a new enterprise agreement in 2016 and 2017, the Union Part A Committee members met with DP World senior managers on 22 February 2017 for the negotiation of Part A of the Agreement. At the meeting, the Union adopted the position that a Union delegate or official should be entitled to support employees at one-on-one meetings. The MUA noted that while the parties did not resolve the issue during enterprise bargaining, the attempt to implement one-on-one meetings in Fremantle was eventually withdrawn by DP World at an Employee Representative Committee meeting held on 13 February 2018 and it has never conducted any such meetings in Fremantle. Similarly, the MUA stated that attempts were also made by DP World to introduce one-on-one meetings at the Ports of Sydney and Melbourne but through the respective Site Committees, the workforces rejected the introduction of one-on-one feedback sessions without the presence of a Union delegate.
The MUA said that Mr McLennan received a written warning from DP World in 2016 for refusing to attend a one-on-one feedback session without the presence of a Union representative. At that time, Mr McLennan was said to have placed the matter in dispute under the Agreement contending that clause 9 entitled him to representation by the Union in one-on-one sessions. However, around that time, the MUA and DP World were engaging in bargaining for a new enterprise agreement and the Union decided not to escalate the dispute to the Commission and instead sought to resolve the issue through enterprise bargaining. The MUA said that throughout the bargaining process, notwithstanding that the MUA strongly asserted that clause 9 of the Agreement entitles the employees to be represented by the Union in one-on-one feedback sessions, the MUA and DP World were unable to agree on the applicability of clause 9 to one-on-one sessions.
Brisbane employees at DP World were also said to be keenly aware that DP World had taken disciplinary action against Mr McLennan when he refused to attend his one-on-one meeting without union representation. The MUA submitted that this awareness, combined with the implicit threats that employees had received during previous meetings, meant that individual employees were generally too fearful to press the issue with DP World, until they approached the Union as a group in 2021 after learning that DP World intended to again commence one-on-one meetings and requested that the MUA to place the matter in dispute. That request resulted in the present dispute.
In response to DP World’s assertion that clause 9, in its terms, do not apply to one-on-one feedback sessions and the issue is not one which “the parties have over the long history of bargaining sought to regulate”, the MUA submitted that the history of bargaining in 2016 and 2017, as outlined above, demonstrated that the parties had extensive negotiations with respect to the Union’s position that clause 9 of the agreement entitles employees to have Union representation at one-on-one sessions. The MUA further submitted that the fact that DP World did not accept the Union’s interpretation of clause 9 in the context of the one-on-one sessions did not mean the parties did not seek to regulate the issue. In addition, the MUA stated that the decision by DP World to abandon its efforts to introduce these sessions at its operations in Fremantle, Sydney and Melbourne, as a result of the refusal by MUA members to attend these sessions without Union representation, “establishes that the parties have extensively bargained over the issue throughout the country”.
In relation to the DP World’s contention that one-on-one feedback sessions “sit squarely within the confines of its managerial prerogative”, the MUA contends that DP World has bargained away its unconstrained right to conduct one-on-one feedback sessions with employees to discuss “matter pertaining to the employment relationship” without the presence of Union representatives. In this regard, the MUA cited the proposition set out in Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[24], as follows:
“…managerial prerogative in relation to employees (including the employer’s right to make and vary policies that employees are required to observe) is subject to legal constraints. It may be constrained by statute or the terms of an award. It may also be constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make. For example, an enterprise agreement might provide that all work must be carried out in accordance with a roster pattern specified in the agreement. In that example, unless the agreement also confers a right on the employer to vary the roster pattern, the employer has bound itself not to require employees to work a different roster pattern. In particular, an employer can bind itself in a statutory collective agreement not to change a policy or policies without, for example, the agreement of a relevant union or a majority of employees.”
With reference to the above proposition, DP World submits that DP World, having bargained away its rights to refuse Union representation in meetings that involve matters relating to the employment relationship, does not enjoy a managerial prerogative to implement a policy that, on its face, violates a clear term of the Agreement. In addition, the MUA rejected the assertion by DP World that the one-on-one feedback session have, for more than a decade, been held whereby managers met “at least once per year with each employee on an individual basis” and there has never been any request from the employees for Union representative to be present. In this respect, the MUA said that the fact that Mr McLennan put into dispute the company’s refusal to grant his request for Union representation at a one-on-one meeting in 2016, and that the MUA and DP World engaged in extensive bargaining over the issue in 2016 and 2017 suggests that the assertion by DP World is at best “misleading” or “patently false”.
The MUA stated that the only reason that the matter has not been pursued until now is because, except for Mr McLennan, no DP World employee has put the matter in dispute. The MUA pursues disputes on behalf of employees only when a member raises a dispute with the company. The fact that members have not disputed the matter until now should in no way be seen as evidence that employees were content with attending one-on-one sessions without Union representation. In reply submissions, in response to DP World’s assertion that the Union is attempting to “simply pluck fragments of a clause out of context”, the MUA submitted a reading of the entire clause 9.1 and the surrounding context, does not detract from the ordinary meaning of the words – an officer of the Union shall be granted right of entry Company operations “…to represent Employees in other matters pertaining to the employment relationship between the Company and its employees”. Further, the MUA stated that what has conveniently been omitted by DP World is the overarching purpose of the provisions of Clause 9, namely, “Employee Representation”.
With respect to DP World’s contention that clause 9.1 does not grant employees any rights but is rather “expressed as creating rights and obligations as between DP World and the Union only”, the MUA contends that the proffered interpretation of clause 9.1 is belied by its unambiguous words: “The Company acknowledges Employees may be represented by the Union and its officers appointed in accordance with the Union's rules.” The MUA expressed the view that how DP World could argue that the clause does not grant a right to employees to be represented by the Union in the circumstances set out in the clause when its clear language states exactly the opposite is “baffling”.
Next, DP World argues that the clause requires DP World to allow the Union entry to its sites solely for the purpose of representing employees in matters in which Union representation is explicitly recognised in other clauses contained in the agreement (such as, health and safety issues, the personal grievance procedure, and the dispute resolution process), and when “representation is otherwise allowed by convention or prudent practice”. The MUA submits that such a narrow interpretation of the clause would render it superfluous. Had the parties intended the clause to mean nothing more than that the Union must be granted entry to represent employees in finite circumstances, the parties would undoubtedly have specifically identified those circumstances in the agreement.
In addition, the MUA submits that the parties did not attempt to define each of the circumstances in which employees are entitled to Union representation suggests that, in agreeing that employees are entitled to Union representation in “matters pertaining to the employment relationship between the Company and its Employees”, the parties have left open for interpretation what constitutes a matter “pertaining to the employment relationship” and to answer that question, it is necessary to consider the context of the circumstances in which employees seek Union representation.
Mr McLennan’s evidence is said to show that one-on-one meetings routinely include accusations against employees of deficient performance that could lead to disciplinary actions, and criticisms that cause employees to prioritise working fast over working safe. The meetings are quite clearly “matters pertaining to the employment relationship” and accordingly, clause 9.1 of the Agreement plainly permits employees to be represented by a Union Officer or Delegate at such meetings.
[2] Exhibit A2 Witness Statement of Adrian Evans.
[3] Exhibit A3 Witness Statement of Michael Cope.
[4] Exhibit R1 Witness Statement of Scott Eadie.
[5] [2017] FWCFB 3005 at [14].
[6] [2018] FCAFC 131 at [197] (per Tracey, Bromberg and Rangiah JJ).
[7] [2022] FWCFB 7.
[8] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]
[9] [2017] FWCFB 4487.
[10] [2014] NSWCA 184 at [71] – [85].
[11] Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.
[12] Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].
[13] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
[14] Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing)
[15] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].
[16] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].
[17] [2006] FCA 11.
[18] Ibid at [44].
[19] Ibid at [46]
[20] [2006] FCA 616.
[21] Transcript PN74 – 78.
[22] Transcript PN115 – 117.
[23] Exhibit A3 Annexure MC-1.
[24] [2011] FWA 8288 at [10].
[25] Exhibit R1 Annexure “SE1”.
[26] Exhibit R1 Annexure “SE-4”.
[27] Ibid Annexure “SE-5”.
[28] Compare AMWU v Skilled Engineering Ltd [2003] FCA 260 at [14] ff; McAleer v University of Western Australia (No 3) (2008) 171 FCR 499, [2008] FCA 1490 at [102] - [106].
[29] [2023] FWC 311 (PR750258).
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