Construction, Forestry, Maritime, Mining and Energy Union v Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited
[2023] FWC 3035
•20 NOVEMBER 2023
| [2023] FWC 3035 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
v
Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited
(C2023/3892)
| DEPUTY PRESIDENT EASTON | SYDNEY, 20 NOVEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – rosters and allocations – positions, roles and skill-sets – ordinary meaning of relevant words in context – the terms of the Enterprise Agreement do not require the employer to employ a permanent Shift Coordinator.
This decision relates to a dispute referred to the Fair Work Commission under the dispute resolution provisions of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021. The dispute concerns a decision by the employer in Port Botany to not permanently appoint an employee to perform work as a Maintenance Shift Coordinator.
Background
The stevedore business of Hutchison Ports in Australia involves two separate but related corporate entities that employ persons at two separate sites. The Port Botany Site in Sydney operates through the employing entity Sydney International Container Terminals Pty Ltd (SICTL). The Port of Brisbane facility operates through the employing entity Brisbane Container Terminals Pty Limited (BCT). SICTL and BCT are both parties to the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (Agreement), as is The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA).
There is no substantial disagreement about the facts. The MUA relied on a witness statement from Mr Paul Keating who is the Divisional Branch Secretary, Sydney Branch. SICTL relied on a witness statement from Ms Harriet Mihalopoulos who is the Head of Corporate Services and Industrial Relations based at the Port Botany site.
The parties filed written submissions and agreed that a hearing was not required.
Each witness statement contained conclusions and opinions, and evidence of conduct by the parties after the Agreement was made. I have taken the opinions and conclusions asserted by each witness to be submissions from that witness’ camp. Some evidence of events and conduct after the Agreement commenced is relevant to understanding the present dispute.
In construing the terms of the Agreement I have applied the standard interpretation principles from AMWU v Berri Pty Ltd[2017] FWCFB 3005 at [114], (2017) 268 IR 285 at 310 (Berri), and I have not taken into account evidence or assertions of post-agreement conduct or usage.
SICTL employs both maintenance and operation employees in Sydney. Maintenance employees maintain and service all plant machinery and operational employees directly carry out all stevedoring and ancillary functions in the terminal.
The dispute concerns allocation arrangements for maintenance staff working 12-hour shifts. The roster for these employees is set by the Agreement, viz:
| Week | MON | TUE | WED | THURS | FRI | SAT | SUN |
| 1 | N | N | N | OFF | OFF | OFF | OFF |
| 2 | D | D | D | OFF | OFF | OFF | OFF |
| 3 | OFF | OFF | OFF | N | N | N | N |
| 4 | OFF | OFF | OFF | D | D | D | D |
| 5 | OFF | OFF | OFF | OFF | OFF | OFF | OFF |
There are five “panels” for the maintenance employees and in the ordinary course each panel has four members. The panels align with the roster lines: Panel 1 works three 12-hour night shifts in week 1 of the roster (line 1), three 12-hour day shifts in week 2 (line 2) and so on.
The Agreement requires that on each shift for each panel there is one General Maintenance Roster Shift Coordinator, one General Maintenance Roster Electrical Tradesperson and one General Maintenance Roster Mechanical Tradesperson. Within the panels the Shift Co-ordinator could be an electrical or a mechanical tradesperson.
Shift Coordinator is a Level 5 role with an annual salary of $180,457. The electrical and mechanical tradespersons are Level 4 with an annual salary of $153,495.
Until May 2022 all 20 maintenance employees across the five panels were permanently appointed to work in their panel.
In May 2022 the Shift Coordinator on Panel 5 resigned.
Since then SICTL has mostly deployed a particular Level 4 electrician to perform the Shift Coordinator role for Panel 5. His allocation has been on a shift-by-shift basis and on rare occasions others have been allocated as the Shift Coordinator for Panel 5.
The MUA argued that the Agreement requires SICTL to appoint a person permanently to the Shift Coordinator “position” and that SICTL’s failure to do so is a breach of the Agreement.
The Relevant Terms of the Agreement
The Agreement is divided into Part A and Part B. Part A contains terms and conditions that cover both SICTL and BCT. The terms in the schedules in Part B are site specific.
Part A of the Agreement does not contain schedules. The rostering and allocation requirements for the SICTL maintenance employees are found in Schedule 3 of Part B of the Agreement. For the balance of this decision I shall refer to Schedule 3 of Part B of the Agreement as ‘Schedule 3’.
Clause 1.1 of Schedule 3 contains the following preamble:
“1.1 The rostering and allocation requirements detailed in this Schedule will apply in addition to the provisions of Clause 26 (Allocation and Working Arrangements), subject to skills.”
Clause 1.2 of Schedule 3 contains the roster pattern reproduced in paragraph [8] above.
Clauses 3.2 to 3.8 of Schedule 3 deal with changes to shifts, absences, overtime and the like. Clause 3.8 refers to “like for like” replacements:
“In general terms the principles of fairness and equity will be applied between the Parties through the establishment of a transparent points equity system. Where possible replacements should be like for like, for example electrical tradespersons replace electrical tradespersons, and mechanical tradespersons replace mechanical tradespersons.”
The MUA principally relies on the terms of clause 3.9 of Schedule 3:
“Each 12-hour shift Maintenance Panel will include the following minimum skill set:
3.9.1 1 x SICTL General Maintenance Roster Shift Coordinator
3.9.2 1 x SICTL General Maintenance Roster Electrical Tradesperson
3.9.3 1 x SICTL General Maintenance Roster Mechanical Tradesperson”
The preamble in clause 1.1 refers to clause 26 of Part A. Clause 26.2 gives effect to Schedules in Part B. The relevant provisions of clause 26 are:
“26.1 The Company will at all times be able to roster and allocate any Employee individually in a flexible manner in accordance with the arrangements in this Agreement.
26.2 Employees shall work in accordance with the arrangements detailed in the rostering Schedules of this Agreement, as applicable.
…”
The MUA argued that clauses 7 and 10 of Part A are engaged. The relevant provisions are as follows:
“7. CONSULTATION ABOUT CHANGE AND CONTINUOUS IMPROVEMENT
…
Company to Notify
7.3 Where the Company has made a definite decision to introduce changes in production, programme, organisation, structure or technology that are likely to have significant effects on Employees, the Company undertakes to notify the Employees who may be affected by the proposed changes, the National Office and the relevant Branch Secretary of the Union.
7.4 Without limiting the generality thereof, significant effects includes termination of employment, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or relocation or transfer of Employees to other work or locations, the restructuring of jobs, the use of contractors to perform work normally performed by Employees covered by this Agreement and the legal or operational structure of the business.
Company to Consult
7.5 The Company undertakes to discuss with the Employees affected and the Union in good faith the introduction of any change referred to in Sub-Clause 7.4, the effects the changes are likely to have on Employees, measures to avert or mitigate any adverse effects of such changes on Employees and to give prompt consideration to matters raised by the Employees and/or the Union in relation to the changes.…
10. RECRUITMENT AND PROMOTION
Recruitment
10.1 Vacancies, including promotional and permanent Level appointment opportunities as they arise, will be filled by trained and suitable people within the business, where available.
10.2 The Company will apply the Selection Criteria to training, permanent appointment and promotion in accordance with this Clause.
…”
MUA’s Submissions
The MUA’s primary argument was that Shift Coordinator is a “position” or “role” rather than a “skill set”. When the Shift Coordinator for Panel 5 resigned in May 2022 a position became vacant, the MUA argued, and therefore clause 10 required SICTL to fill the vacancy by appointing someone to the vacant position.
The MUA argued in the alternate that if SICTL decided to make the vacant position redundant, then SICTL breached clause 7 by failing to consult about a significant change.
Clause 3.9 of Schedule 3 requires that each panel includes a “minimum skill set” that includes one Shift Coordinator.
The MUA submitted that the Agreement does not contain any criteria for determining whether an employee possesses a particular “skill set” to be appointed as a Shift Coordinator. In fact the MUA argued that clause 3.9 does not actually refer to any skill sets at all but “only lists roles that must be included.”
Shift Coordinator is a “role” recognised in clause 16.12 of the Agreement, as is Maintenance Tradesperson. By contrast clause 10.9 in Part A of the Agreement specifies selection criteria for training and identifies particular first and second tier “core skills” including Shift Coordinator.
The parties therefore intended for a person who has been appointed to the role of Shift Coordinator to be rostered on each of the five maintenance panels.
The MUA submitted that the obvious effect of not recruiting another employee to replace the Panel 5 Shift Coordinator is that SICTL does not have to pay the Level 4 electrician annual leave at the Level 5 salary rate, but instead pays his annual leave at the Level 4 rate.
The MUA said that there are also negative knock-on effects for the Shift Coordinators on the other four panels, referencing the like for like replacement provisions in clause 3.8 of Schedule 3. When a Shift Coordinator misses work due to illness, one of the other Shift Coordinators is entitled to fill that shift and earn overtime. If SICTL’s position prevails, it would be able to replace the Panel 5 Shift Coordinator role with any Level 4 electrician.
SICTL’s failure to fill the Shift Coordinator vacancy with a suitable person within the business was said to be a breach of its obligations under Clause 10, or alternatively by eliminating the full-time Shift Coordinator position, SICTL breached the requirement under Clause 7 to consult with employees and the Union when it made a change to the composition of the workforce or eliminated or diminished job opportunities.
The MUA submitted that if there be any ambiguity in clause 3.9 it can be resolved by looking at how SICTL applied the clause upon the commencement of the Agreement by hiring five full-time Shift Coordinators and rostering one to work each panel instead of hiring two mechanics and two electricians to work each panel and upgrading one of those tradespersons to act as Shift Coordinator on a case-by-case basis. This approach to interpreting the Agreement is contrary to Berri and other authorities and must be rejected.
SICTL’s Submissions
SICTL submitted that the question for determination is:
“In the circumstances of the application, does subclause 3.9 of Part B, Schedule 3 – SICTL Maintenance Rosters of the Industrial Instrument compel SICT to appoint a permanent Shift Co-ordinator to each maintenance panel at the Port Botany Site? (Yes/No)”
SICTL submitted that the answer to the question should be “No”, that it is not the function of the Commission to make declarations as to alleged breaches of an Industrial Instrument, and that the Commission does not have the jurisdiction to do so.
Ms Mihalopoulos said in her witness statement that since the previous Panel 5 Shift Coordinator’s resignation, SICTL has upgraded various employees as the Shift Coordinator on a shift-by-shift basis in accordance with clause 16.5 of the Agreement and in addition, in accordance with clause 26.1 which states that the Company will at all times be able to roster and allocate any employee individually in a flexible manner in accordance with the arrangements of the Agreement.
SICTL submitted that the role of “Shift Coordinator” is not defined in the Agreement or the Stevedoring Award, and where “Shift Coordinator” is referred to in the Agreement, it is referred to both as a skill (Schedule 3 subclause 3.9.1) and a role (subclause 16.12). The term “Shift Coordinator” also appears in Clause 10.9 (selection criteria for training), Clause 38.17 (consultation) and subclause 39.6.1 (first aid).
SICTL contends that there is no “vacant” Shift Coordinator position to be filled in the circumstances at the Port Botany site and that there can be no failure to consult as alleged.
SICTL said that the “roles” to which employees are allocated are fluid, referring to clause 16.12 as a case in point, and that roles can and do change from shift to shift at the direction of the employer.
Clause 3.9 of Schedule 3 refers to a “skill set” and does not refer to appointing an employee to a particular role or position. Clause 3.9 does not require that each Panel have a prescribed minimum number of employees, but instead requires that each panel must include a minimum “skill set”. The Agreement is silent on the appointment of any role on such shifts.
SICTL submitted that the MUA’s second proposition that Shift Coordinator is a role not a skill set does not assist the Commission in resolving SICTL’s articulated question and does not intersect with the interpretation of Clause 3.9 of Schedule 3.
SICTL argued that the MUA’s submission that the words “skill set” are “superfluous” disregards the authorities on interpretation. SICTL said that those words must have meaning and the intended ordinary meaning of Clause 3.9 of Schedule 3 in context must be that each Maintenance Panel must have the required “skill set”.
SICTL said that the only obligation it has is to ensure that the minimum “skill set” for each 12-hour Maintenance Panel shift is maintained and that these obligations continue to be met by the use of the upgrade provision in clause 16.5.
SICTL contends that there is no vacancy to be filled and that the requirement to meet a skill set does not necessitate a “promotion” nor does it envisage a permanent employment. It said this is not a situation of “higher level appointment” and that Clause 10.8 does not have work to do.
Consideration
Schedule 3 purports to set “rostering and allocation requirements” for SICTL’s maintenance employees (per the preamble in clause 1.1). This seems to be an important qualification for Schedule 3.
Clause 1.2 sets the roster for the relevant employees. Clause 3.9 specifies minimum allocations. Clause 3.9 requires one person to be allocated as the Shift Coordinator, one to be allocated as the Electrical Tradesperson and one to be allocated as the Mechanical Tradesperson.
The term “skill set” only appears in Schedule 3 and Schedule 4 of Part B. Schedule 4 of Part B deals with rostering and allocation requirements for maintenance employees in Brisbane. In Schedule 4 the term ‘skill set’ is used in a similar way to Schedule 3.
In context it is quite easy to see the logic behind specifying that each panel must include a mechanical tradesperson and an electrical tradesperson. In the standard roster in clause 1.2 only one panel is ever rostered on at a time. Clause 3.2 seems to contemplate changes to that arrangement in limited circumstances but, for the most part, clause 3.9 applies as a device to ensure that the skills of both electrical and mechanical tradespeople are available on each shift.
The same can be said for the inclusion of a shift coordinator in clause 3.9 – the clause is a device to ensure that the skills of a shift coordinator are available on each 12-hour shift across the week. The “skills” of a shift coordinator are not defined in the Agreement. The coordinators are either electrical or mechanical tradespeople and in this context it is not clear to me why the skills of a Shift Coordinator would have to be defined.
The requirement in clause 3.9 that all three skill sets are included in each panel applies on each shift and therefore has an impact upon who might be an eligible replacement for a particular shift. Clause 3.8 and the reference to ‘like for like’ replacements sits harmoniously with this understanding of clause 3.9.
Clause 16.12 allows employees to be deployed to various roles on a shift by shift basis. Clause 3.9 of Schedule 3 requires that when employees are deployed to various roles on a shift by shift basis, at least one employee must be allocated or deployed as a maintenance shift co-ordinator, one as an electrical tradesperson and a mechanical tradesperson.
Other parts of the Agreement refer to roles and positions for particular purposes. However clause 3.9 does not refer to “minimum roles” or “minimum positions” and instead refers to “minimum skill sets.”
The ordinary meaning of the words used in clause 3.9, particularly the use of the term “skill set” rather than position or role, do not require SICTL to appoint persons to particular positions or require SICTL to appoint anyone in a way that they are permanently allocated work as a Shift Coordinator.
As such, it could not be said that there is a vacancy that engages clause 10 of the Agreement.
The MUA’s alternate submission is that clause 7 of Part A required SICTL to consult about its decision not to permanently appoint a replacement for the Shift Coordinator who resigned.
Arguably a decision of this kind is a change in ‘organisation’ as referred to in clause 7.3 that possibly had a ‘significant effect’ of the kind described in clause 7.4.
The MUA alleged that SICTL contravened clause 7 of the Agreement. SICTL properly submitted that the Commission has no jurisdiction to make any declarations regarding breaches of the Agreement.
In civil remedy provision proceedings the Applicant is required to prove their case to the civil standard having regard to the degree of satisfaction required by s.140 of the Evidence Act. Briginshaw principles apply to civil penalty proceedings, which require the Court to reach an actual satisfaction that the Applicant has proved the allegations of contravention while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted (see Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451 at [14]-[18]; (2019) 286 IR 52 at 59-61). Findings regarding alleged breaches of an agreement should not be made lightly.
One additional and significant obstacle prevents me from entertaining the MUA’s contentions about clause 7. Consultation has in fact occurred in relation to SICTL’s decision. Even if the Commission had jurisdiction to consider the MUA’s proposition, the evidence filed by the parties does not provide a proper basis to consider all of the necessary elements of the allegation. The evidence does not identify when the decision was made, nor does it provide clear evidence of when or how consultation took place.
In summary:
(a) clause 3.9 of Schedule 3 of Part B of the Agreement does not require SICTL to appoint a permanent Shift Coordinator to each maintenance panel at the Port Botany Site; and
(b) the reference to ‘Shift Coordinator’ in clause 3.9 of Schedule 3 of Part B of the Agreement is a reference to the skill set that a Shift Coordinator would ordinarily possess and also a reference to SICTL allocating a person to work in the role of Shift Coordinator in each panel on at least a shift-by-shift basis.
DEPUTY PRESIDENT
Hearing details:
Heard on the papers.
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