Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Ports T/A Fremantle Ports
[2021] FWC 936
•19 FEBRUARY 2021
| [2021] FWC 936 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Maritime, Mining and Energy Union
v
Fremantle Ports T/A Fremantle Ports
(B2021/87)
DEPUTY PRESIDENT BINET | PERTH, 19 FEBRUARY 2021 |
Proposed protected action ballot of employees of Fremantle Ports T/A Fremantle Ports.
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to s 437 of the Fair Work Act 2009 (Cth) (FW Act).
[2] The Application was supported by a statutory declaration from Mr Jeff Cassar, the Assistant Branch Secretary of the Maritime Union of Australia Division of the CFMMEU (Mr Cassar).
[3] The CFMMEU seeks an order for a ballot to be conducted of employees of Fremantle Port Authority trading as Fremantle Ports (Fremantle Ports) whose employment is covered by terms of the Fremantle Ports Operations and Services Enterprise Agreement 2017 (Agreement) who are represented by the CFMMEU, or who are bargaining representatives for themselves but are members of the CFMMEU (Employees).
[4] The Application was the subject of a conference on 19 February 2021 following email advice from Fremantle Ports that the Application was opposed (Conference).
[5] Fremantle Ports sought permission to be represented by a lawyer at the Conference. The granting of leave to Fremantle Ports was not opposed by the CFMMEU.
[6] Having considered the submissions of the CFMMEU and Fremantle Ports, leave was granted to Fremantle Ports to be represented pursuant to s 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[7] In accordance with directions issued to the parties on 18 February 2021, the parties filed outlines of submission, copies of the authorities on which they relied and substantial documentary and written evidence in advance of the Conference.
[8] In addition to the Form F34B declaration completed by Mr Jeff Cassar the CFMMEU also filed a witness statement of Mr Brenton Wilson, a legal officer employed by the CFMMEU.
[9] Fremantle Ports filed a witness statement of Benjamin Mathews the Industrial Relations Manager for Fremantle Ports.
Background
[10] Fremantle Ports is a Government Trading Enterprise responsible to the Minister for Ports.
[11] Fremantle Ports provide services at two primary locations, the Inner Harbour, located in Fremantle, and the Outer Harbour, located at Kwinana. In 2019 - 2020 the Total Port Trade for Fremantle Port was in total 32.6 million tonnes of which imports accounts for 15.7 million tonnes and exports 17 million tonnes.
[12] The Inner Harbour operates 24-hours per day and services the maritime trade industry. It is the fourth largest container port in Australia by twenty (20)-foot equivalent unit (TEU) volume. TEU is a unit of measurement for cargo, based on the volume of a 20-foot container.
[13] Four types of trade move through the Inner Harbour: Containers; Roll-on Roll-off; Break bulk; and Livestock. Container trade is the transport of goods through shipping containers. Almost any type of product can be shipped in a shipping container. Roll-on Roll-off trade refers to any cargo that can be driven onto and off a vessel (such as motor vehicles). Break bulk trade refers to cargo that is bulky but, is taken off and put onto a ship using a crane (as opposed to roll-on roll-off cargo). Steel is an example of break bulk trade. Livestock refers to the shipping of live animals through dedicated livestock vessels.
[14] Fremantle Ports role with regard to each of these trades is to ensure the safe navigation of vessels into and out of Fremantle Ports, including both the inner and outer harbours. Container ships are brought into the Inner Harbour from the Outer Harbour by the Fremantle Pilots. Fremantle Ports also ensures that vessels are moored safely and tied up alongside the berth. Once the vessels are moored and tied up, the further land-side activities in the Inner Harbour are carried out by third-party stevedores.
[15] The Outer Harbour operates 24-hours per day, seven-days per week, except for programmed shutdowns over the Christmas period. Fremantle Ports manages two Outer Harbour facilities: the Kwinana Bulk Terminal (KBT), and the Kwinana Bulk Jetty (KBJ).
[16] Outer Harbour handles the import and export of bulk commodities including cement clinker, LPG, fertilizers, sulphur, bauxite, silica sand, LNP and grain and bulk liquids (e.g. refined petroleum fuel, liquid fertilisers and chemicals).
[17] Fremantle Ports is the sole service provider at the KBT, where it provides services
including:
a. ship monitoring and scheduling;
b. berth allocation;
c. mooring (including anchoring and berthing);
d. port communications;
e. hazardous cargo services;
f. quarantine;
g. security services;
h. maintenance;
i. waste disposal;
j. bulk material handling / stockpiling;
k. receival and dispatch of bulk material;
l. property management services; and
m. stevedoring services.
[18] The major imports/exports out of KBT are LPG, bauxite, silica sand, iron ore, cement
clinker, nut coke and gypsum. At KBJ, Fremantle Ports is the berth operator for one customer (Nutrient) for which it provides both wharf side and shore side services. For all other KBJ customers, Fremantle Ports is responsible for providing mooring and berthing services to vessels.
[19] Fremantle Ports issued a Notice of Employee Representational Rights (NERR) to the Employees on 12 December 2020.
[20] The commencement of bargaining was delayed by the impact of the COVID-19 pandemic.
[21] On 30 July 2020 the parties held their first bargaining meeting.
[22] The parties exchanged logs of claims in between August and October 2020 and conducted a series of bargaining meetings between October 2020 and December 2020.
[23] Further bargaining meetings are anticipated to occur later this month.
Consideration
[24] The FWC is obliged to issue a protected ballot order in the following circumstances:
“443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
[25] Section 437 relevantly provides as follows:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
[26] It is not in dispute that the CFMMEU has standing to make the Application in its capacity as a bargaining representative. 1 The notification time in relation to the Proposed Agreement is 12 November 2019.2 The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.3
[27] The Application specifies the group of employees who are to be balloted. 4
[28] The CFMMEU have proposed that the Australian Electoral Commission conduct the ballot. The parties agreed that the date by which the ballot should close would be thirty days from the date that any order is granted, to accommodate delays arising from the COVID-19 pandemic. 5
[29] The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. 6
[30] The Application was accompanied by documents and other information prescribed by the Fair Work Regulations 2009 (Cth).
[31] I am therefore satisfied that the Application has been made in accordance with s 437 of the FW Act.
[32] The FWC may only make the order sought if the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[33] The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is” imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.
[34] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union 7 (Esso Case), the Full Bench stated:
“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad” 8 (references omitted)
[35] In Total Marine Services Pty Ltd v Maritime Union of Australia, 9 a Full Bench of Fair Work Australia relevantly stated:
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”
[36] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.
[37] The CFMMEU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date.
[38] In all of the circumstances, I am satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with Fremantle Ports.
[39] Pursuant to s 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) requires three working days’ notice, or any longer period specified in the protected action ballot order.
[40] Fremantle Ports submits that, if an order is to be made, the FWC should exercise its discretion to increase the subsection 414(2)(a) notice period of three working days.
[41] Section 443(5) of the FW Act provides that:
“If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”
[42] This requires consideration of: 10
a. whether the circumstances are ‘exceptional’;
b. whether the ‘exceptional circumstances’ justify a requirement of notice longer than the statutory default; and
c. what the period of notice should be, up to a maximum of seven days.
[43] The determination of whether the circumstances of a particular case are ‘exceptional’ involves an evaluative judgement of those circumstances. Circumstances may be “exceptional” if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare or unexpected. For this purpose, “circumstances” may include a combination of factors which together produce a situation that is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be “exceptional”. 11
[44] Determining whether the “exceptional circumstances” justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.
[45] Having concluded that particular circumstances are exceptional, and that they justify a requirement of a notice period longer than the statutory default, a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be. 12
[46] Fremantle Ports provided evidence in support of its assertion that exceptional circumstances currently exist, which justify a requirement for a longer notice period. The evidence indicates that there is the potential for significant impacts to Fremantle Ports, its clients, customers and the broader Western Australian and Australian community.
[47] Due to the very large geographical distance of Perth from interstate and overseas ports, Fremantle Ports has a uniquely important role in providing Port services in Perth and to Western Australia in general.
[48] It is not practically, and logistically, viable for customers who use the Fremantle Ports facilities to simply redirect their vessels at short notice to alternative ports in Western Australia. No other Western Australian port has the capacity to process containerised cargo to the scale of the Inner Harbour, although some limited containerised trade is processed through the Esperance Port.
[49] Both the Inner Harbour and the Outer Harbour operate on tight berthing schedules upon which the industrial action would disrupt. Such disruption is likely to result in immediate economic consequence for the customers and/or vessel owners in the form of demurrage fees for each day of delay, which can amount to tens of thousands of dollars per day. The obvious effect on the customers of the shipping lines is that they will be delayed in getting their imports or exports to market.
[50] Where Fremantle Ports is not the only port on a vessel's voyage (which is more often than not), there may be fees and charges levied against that vessel by other ports as a result of the delay and the imposition on that port's shipping schedule.
[51] The longer a stoppage extends, the more severe the impact, as it has a flow-on effect. The flow-on effect from work stoppages on trade is, in its simplest form, that importers cannot get the products they need to serve their customers because those products are unable to be unloaded from the containers. This includes, not only general consumer products such as furniture or vehicles, but critical imports for health and safety, such as medical supplies, and equipment that is critical to large industry sectors, such as mining and agriculture.
[52] Fremantle Ports are responsible for the passage of both imports and exports that are critically important, not only to the end customers, but to Western Australia more generally including cement clinker for the building industry, crude and refined petroleum products, LPG and grain.
[53] Almost anything imported into Western Australia (with the exception of bulk products) comes by container through Fremantle Harbour. Medical supplies all come by containers, and Fremantle Ports is likely to be the only port in Western Australia that they can come through.
[54] Stevedoring, mooring and maintenance services each require specific skills, qualifications and training. It is not possible to simply safely deploy other Fremantle Ports employees to carry out technical or physical functions for which they are not trained or experienced in, such as operating cranes and mooring vessels.
[55] As Fremantle is the only Perth port, there are limited people in Perth who possess the skills required by Fremantle Ports. A further difficulty with regard to immediately sourcing supplementary labour is that a security clearance is required. Therefore, Fremantle Ports is limited, with respect to the supplementary workers it would be able to immediately find and deploy.
[56] COVID-19 has significantly exacerbated the challenges of obtaining an alternative workforce to ensure continuity of operations, given:
a. the rapid and on-going nature of changes to State border arrangements;
b. the potential for visitors to Western Australia to have to enter 14-days quarantine; and
c. the requirements associated with Western Australia’s GTG PASS registration process.
[57] With additional notice of industrial action, the supply chain links - the customer, vessel crew, vessel manager, shipping line, transport (rail, truck etc.), will have an opportunity to make logistical decisions that will not be as compromising financially or operationally. For example, livestock may be retained at feedlots, urgent medical supplies may be prioritised and vessels may be redirected to other ports.
[58] I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period. In light of the evidence before me, I have determined to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to five working days is appropriate in all the circumstances.
[59] Having been satisfied that the requirements of s 443(1)(a) and (b) of the FW Act have been complied with, the Application is granted and a protected action ballot order has been issued. 13
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR727174>
1 F34B – Declaration in support of an application for protection action ballot order dated 12 February 2021,2.1.1 (‘F34B Declaration’).
2 Ibid 1.6.
3 Ibid 1.3.
4 Form F34 – Application for a protected action ballot order dated 17 February 2021, 2.1.
5 Ibid 3.1.
6 Ibid 2.3.
7 [2015] FWCFB 210.
8 Ibid [57].
9 [2009] FWAFB 368.
10 National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011, [23] - [25].
11 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848, [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99, [7] - [8].
12 National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011, [25].
13 PR727173
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