Construction, Forestry, Maritime, Mining and Energy Union v Victoria International Container Terminal Limited T/A VICT

[2023] FWC 428

[2023] FWC 428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union

v

Victoria International Container Terminal Limited T/A VICT

(C2022/6838)

DEPUTY PRESIDENT BELL MELBOURNE, 28 FEBRUARY 2023

Alleged dispute about any matters arising under the enterprise agreement - manner in which employees can be used on the 42 hour flex roster.

1. A dispute has been raised by the applicant, the Construction, Forestry, Maritime, Mining and Energy Union (MUA)[1], under the Victoria International Container Terminal Operations Agreement 2021 (Agreement) against the respondent, Victorian International Container Terminal Limited (VICT).

1. The parties attended a conciliation of the matter before me on 25 October 2022, without resolution. I issued directions for evidence and submissions, and the matter was listed for a hearing on 19 December 2022. While each party filed a witness statement, the statements were tendered on the basis that neither witness was required to be called and neither witness was cross-examined. Detailed written submissions were filed, in addition to oral submissions being made. I was assisted by the parties’ submissions.

1. The agreed question for arbitration was as follows:

“Does the Victoria International Container Terminal Operations Agreement 2021 prevent employees working on the 42 Hour Flex Roster from performing work on the RC Desk?”

For the reasons that follow, my answer to the question is “no”.

Factual background

1. VICT operates a shipping container terminal at Webb Dock Drive, Port Melbourne (Terminal). The operations include a stevedore facility, at which container ships are loaded and unloaded from vessels. Broadly, shipping containers for import arrive by vessel are unloaded, temporarily stored and are loaded onto a truck. Similarly, shipping containers for export are brought by road to the Terminal where they are unloaded, temporarily stored and then loaded onto a vessel. If an import container is a transshipment container, it is unloaded from a vessel, temporarily stored, then loaded onto a vessel to be shipped to a different location. Operations run 24 hours per day.

1. Unlike other stevedore operations at the Port of Melbourne, the Terminal is largely automated, in that automated equipment is used to identify particular containers, determine the necessary timing and direction of them, and transport them within parts of the Terminal.

1. Focussing on the process where a container is being removed from a vessel to land, the container is lifted off the ship by “Automatic Ship-to-Shore Cranes” also known as Quay Cranes. The Quay Cranes are operated remotely – although can operate automatically - and lift containers from a ship to the adjacent wharf and vice versa.

1. Continuing the example being given, the container that was placed by the Quay Crane on the wharf is lifted and moved by an Automatic Container Carrier (ACC), which is also called a straddle carrier. The ACCs operate automatically, which includes identifying the relevant container, lifting it, moving it, and then placing it where it needs to be in one of the storage “blocks” on the Terminal. At the risk of oversimplification, a “block” is a designated area where containers are temporarily stored as part of the automatic operations for import and export. A block is a long strip of containers, stacked up to (I estimate) around four containers high and approximately 10-15 containers in length and about two containers wide.

1. The final piece of key equipment for this process is the “Automated Stacking Crane” (ASC). The ASCs are large structures that run on rail tracks alongside blocks of containers on the Terminal. Each block has two ASCs, one on the “waterside” and one “landside”. The ASCs collect containers placed by the ACCs (straddle carriers), place them in a container block, and then collect and place them on a truck for departure by road. The reverse occurs for containers delivered by road that are intended for shipping.

1. The ASCs operate substantially automatically, save for when the automated systems (described broadly as the Terminal Operating System or “TOS”) detect that a “manual exception handling” is required to complete a process. The reasons a manual exception handling is required are various, but include where the TOS does not identify the position of a container correctly or if a truck driver has parked his or her vehicle incorrectly.

1. Where a manual handling exception is flagged, the TOS will “push” the work order through to an employee working on one of four Remote Control Desks (or “RC Desks”), a matter relevant to the current dispute. Two RC Desks are located in a control room in the administrative building within the Terminal. Another two RC Desks are located in the ‘Landside Hut’, which is located on the landside of the Terminal.

1. In essence, an employee working on the RC Desk will remotely control the applicable ASC to complete the work order. This typically involves controlling the ASC to “ground” a container (e.g. putting it down onto a truck or the block) or for a “pick” job (i.e. for picking up a container) where the automated systems determined manual assistance was required. Approximately 85% of “moves” by an ASC are performed automatically, with the remainder completed with manual exception handling.

1. Ordinarily, the RC Desk work is performed by a Landside Support Coordinator (or “Marshall”). For existing employees, approximately two shifts’ worth of training are required for a person to be qualified to operate the RC Desk.

1. Both parties’ evidence described the work of “lashers and pinners”, who are at the centre of the dispute raised by the MUA (at least so far as those employees are working on the 42 hour flex roster). In short, the function of “lashing” involves unlatching (and, in reverse, placing) metal bars on ship containers located on ships. The metal bars are used to hold the containers in place during transit. “Pinning” involves the insertion and removal (as applicable) of twist-locks in the containers (the “pins”) that are used to hold a container in place on a vessel.

1. Under the Agreement, a “lasher / pinner” is also described as a “general hand”, and is a “Level 1” employee. I set out the key terms of the Agreement below. A position description dated May 2020 for a “Level 1 General Hand” was expressed to apply to a “Level 1 and Casual”. The position description component of that document stated as follows:

“The Lasher and Pinner position involves VICT employees ensuring the safe and productive placement and removal of lashing equipment during vessel operations. Ensuring when performing duties that all lashing is kept up to date and all Lashing information is communicated to Level 1A Shipside Support Coordinator.

The position also requires VICT employees to ensure the correct removal and placement of pins from and into containers and cargo. And the constant supporting of Waterside operations as directing by management.

If licensed and AOC’d the operating of equipment will be required as instructed.”

1. The key responsibilities for the general hand were stated as follows:

“• Follow and carry out instruction

·   Conduct lashing operations as per VICT procedures

·   Conduct pinning operations as per VICT procedures.

·   Work safely and follow all safety instructions, SWMS, VICT policies and procedures.

·   Proactively contribute to improving the overall Safety of the workforce by identifying issues, reporting incidents and hazards and setting a benchmark of excellence in safety.

·   Provide on the job coaching to employees.

·   Ensure any and all deviation from agreed safe work practices have been thoroughly risk assessed prior to commencement.

·   Use of equipment within the terminal if trained and/ or licensed to do so when required

·   Any other duties as requested from time to time.”

1. The qualifications for a general hand were “VICT onboarding”, some required “sign offs” for lashing and pinning, a forklift high risk work licence and a Victorian drivers licence. Experience required was “High Risk Work operations”, “Heavy equipment operation”, and prior work on a “12hr Shift rotation”.

1. A general hand’s required “competencies and skills” were stated as follows:

“• Ability to understand and follow direction as required

·   Understands safe working procedures and follows safety and work instructions

·   Utilise standard industry computer packages e.g. Employment Hero & Microsoft Suite.

·   Must have a thorough understanding of waterside operations within a container terminal environment

·   Demonstrated ability to work to and stick to a plan within an operational environment

·   Demonstrated knowledge of radio protocol and procedures

·   Demonstrated problem solving skills”

1. There is a category of employee not described in the Agreement who are described by the parties as “multi skilled” or, simply, “Multis”. They are not, as the parties stated, strictly a different category or otherwise employed outside of the Agreement but they are Level 1 general hands who are called upon to perform certain Level 1A work as required for higher duties. When they perform the higher duties, they are paid as such. All Multis are drawn from the 42 hour fixed roster, not the 42 hour flex roster (which are both described below).

1. The factual background described above was known generally prior to, and at the time of, the making of the Agreement (although I infer some of the numbers of employees described in the parties’ evidence will have altered from time to time).

The Agreement

1. The Agreement was approved on 22 July 2021 and operated from 29 July 2021.

1. Clause 2 relevantly provides that the Agreement covers VICT, its employees engaged within the classifications in the Agreement, and the MUA.

1. Clause 6 of the Agreement is titled “Objectives and Intent”. It states:

“6.1 This Agreement is intended to facilitate the working arrangements of the Company's operations at Webb Dock.

6.2 The Parties recognise that the operation is a modern cargo handling facility with progressive working arrangements. [sic.] which adopts technology resulting in non-traditional waterside work.”

1. Returning to the classifications referred to in cl. 2 of the Agreement, Schedule 5 sets out the applicable classifications. They are (original formatting):

“LEVEL 1

Control room:	Ship to Shore Automation Coordinator (probation) Automation Equipment Controller (probation) Landside Support Coordinator (Marshall)
Ship:	Shipside Support Coordinator (probation) Lasher / pinner (general hand)

LEVEL 1A

Control room:	Ship to Shore Automation Coordinator Automation Equipment Controller
Ship:	Shipside Support Coordinator

Employees engaged in the above classifications will, where required, also engage in tasks associated with the Company's automation process.

LEVEL 2

Control room:   Ship to Shore Automation Supervisor

Employees engaged in the above classification must also maintain and/or perform:

• the skills of a Ship to Shore Automation Coordinator; and

• where required, tasks associated with the automation process.

Ship:   Shipside Supervisor

Employees engaged in the above classification must also maintain and/or perform:

• the skills of a Shipside Support Coordinator; and

• where required, tasks associated with the automation process.

Engineering:             Robotic Specialist Technician (Electrical/Mechanical)

LEVEL 3

Control room:          Designated Operations Shift Lead

Employees engaged in the above classification must also maintain:

• the skills required for an Automation Equipment Controller;

• the skills required for a Ship to Shore Automation Supervisor; and

• where required, tasks associated with the automation process.

Engineering:             Robotic Specialist Supervisor (Electrical / Mechanical)

SUPPLEMENTARY EMPLOYEES

Lashing:                    Lasher/pinner (general hand)

Employees engaged in the above classification will, where required, also engage in tasks associated with the automation process.”

1. Clause 24 of the Agreement is titled “Rostering and Remuneration”. It is comprised of clause 24.1 (there are no subsequent subclauses) and states:

“24.1 Commencement

The Company will inform Employees at the commencement of their employment with the Company as to whether they will be engaged a as 42 Hour Fixed Roster Employee; 42 Hour Flexible Roster Employee, Monday to Friday Day Worker, Supplementary Employee or an 1820 Annual Hours Employee (by agreement between the parties)”

1. As cl.24.1 indicates, there are different types of roster under the Agreement. It is not necessary to set them out but it suffices to note that the different rosters contained different spreads of hours, roster patterns and timing for accrual of benefits such as days off in lieu.

1. A “Supplementary Employee” is defined in Schedule 3 to mean a “a non-permanent Employee engaged by the Company on a casual basis in accordance with this Agreement.”

1. There is only one classification description for Supplementary Employees in Schedule 5 (above). Schedule 4 provides a single hourly (composite) rate for Supplementary Employees.

1. As cl.24 of the Agreement indicates, there is (among other rosters) a 42 hour fixed roster and a different 42 hour flex roster. Clause 25 of the Agreement applies to employees engaged on a 42 hour fixed roster. Rates of pay for employees engaged on the 42 hour fixed roster are those in Schedule 4: cl.25.1. Clause 25 also sets out the shift patterns for that roster but otherwise does not specify which employees it applies to.

1. Clause 26 – and cl.26.1 in particular - is central to the current dispute. It is titled “42 hour flex roster – 4 in 5 roster”. Clause 26.1 is as follows:

“26.1 This roster is designed as an entry point into permanent employment at VICT and is designed for lashers and pinners only to be a pathway into the fixed 42 hour roster. The 42 hour flex roster is to be used to enable structured time off for employees whilst providing the company with more flexibility, owing to the irregularity of vessel arrivals. The 42 hour Flex roster is designed to be a feeder roster into the 42 hour fixed roster”

1. The balance of cl.26 addresses matters such as the structure or pattern of the 42 hour flex roster, availability, and overtime. It is not necessary to set those subclauses out.

Parties’ submissions

1. There was no dispute between the parties as to the applicable principles concerning the interpretation of enterprise agreements.[2]

1. The MUA’s primary position essentially starts and finishes within the confines of cl.26.1. Its written submissions stated (my emphasis):

“7 The clause plainly states that the flex roster is designed for “lashers and pinners only”. For the avoidance of doubt, this does not mean all lashers and pinners must be on the flex roster. Indeed, the evidence before the Commission discloses that there are lashers and pinners on other rosters. It simply means that the only employees on the flex roster are lashers and pinners. These are plainly words of restriction. Someone on the flex roster can only perform lashing or pinning or associated tasks.”

1. Up to the underlined part of the extract above, I did not understand that analysis to be controversial per se. I underlined the final sentence of the extract above, because the effect of that submission states that the role of cl.26.1 is to operate on the type of tasks or work permitted to be performed by a person on the 42 hour flex roster, as opposed to the roles or classifications covered by cl.26.1.

1. As advanced by the MUA in oral submissions, the MUA’s primary argument concerns a “narrow constructional point” regarding the operation of clause 26.1. In oral submissions, the point was explained thus (my emphasis):

“PN34 So when it says, 'This roster is designed for lashers and pinners only to be a pathway into the fixed 42-hour roster,' it's our submission that it's not referring to the employment classification of lasher and pinner general hand, because otherwise it would have specified, 'This roster is designed for general hands.' It does no such thing.

PN35 It's referring to employees in that capacity as people who perform a particular task, namely lashing and pinning. So the way we say it should be read is that the flex roster is the lash and pinning roster.

PN36   There are general hands who routinely perform tasks other than lashing and pinning, but all of those are on the fixed roster. The clauses in the agreement describing the fixed roster don't impose any limitation on the tasks that fixed roster general hands can perform, but we say clause 26.1 imposes a clear limitation on the tasks that may be performed when on the flex roster, and that's lashing and pinning only.

PN37   We think if your Honour is with us on that, then the dispute is over and should be determined in our favour. It's also a clean way forward, because there's no need to determining the meaning of what, in our outline of submissions, we refer to as the caveat. That's repeated throughout schedule 5, that employees in these classifications will, where required, also engage in tasks associated with the company's automation process.”

1. The balance of the MUA’s written submissions were primarily directed at what it anticipated VICT’s position would be regarding the “caveat” in Schedule 5 of the Agreement. As noted above, the “caveat” stated “Employees engaged in the above classifications will, where required, also engage in tasks associated with the Company's automation process.” I will use the term “caveat” in these reasons as a convenient shorthand to the MUA’s submissions about that clause.

1. Some detail was invested in developing the MUA’s written submissions regarding the caveat and why it did not extend to RC Desk work. Those submissions included by recourse to contextual arguments, principles concerning the application of specific provisions over general provisions, and the possibility that the caveat was a drafting error (the latter by reference to the antecedent enterprise agreement). The MUA also contends that the “automation process” does not extend to overseeing an already-automated process (as they contend is the case for RC Desk work).

1. The effect of these submissions for the MUA was that if the caveat had work to do, it operated to the effect that the caveat only applied to lashing and pinning work, not RC Desk work or, for that matter, other work associated with automation processes.

1. While I note that the parties adopted the language of “caveat” by way of convenient shorthand, those words in Schedule 5 are not a caveat in the sense of a legal “proviso”. For a proviso, there is a rebuttable presumption that, but for the words in the proviso, the words in the substantive provision before it would have included the subject matter of the proviso itself. [3]

1. The MUA effectively contends that the words in the caveat are both words of expansion and limitation. The words are said to be an expansion, because the caveat states that employees engaged in the above classifications will “also” engaged in tasks associated with the company’s automation process.

1. What then follows is a contention that the substantive classifications necessarily excludes tasks “associated with the Company’s automation process”. In this sense, the caveat operates to restrict the potential scope of the classifications to which it applies.

1. The MUA then referred to the historical structure of Schedule 5. Under the Victoria International Container Terminal Operations Agreement 2016 (2016 Agreement), there were five Level 1 classifications, although the caveat only operated on three of them. The clause was as follows:

“LEVEL 1

Control room:          Ship To Shore Automation Coordinator (fixed / Automated

Stacking Crane Automation Coordinator (exception)

Automatic Container Carrier waterside support coordinator
Landside support coordinator
Planning support coordinator (yard/vessel)

Employees engaged in the above classification will, where required, also engage in tasks associated with the Company's automation process.

Ship:   Shipside support coordinator (including Automated Lashing

Platform exception management and lasher supervision)

Maintenance:            Entrance level trade certification.”

1. The MUA contends that the historical position shows that each of the five “control room” positions under the 2016 Agreement for which the caveat in that agreement applied were all related to the automation process. With the word “also” in the caveat operating to exclude any task in the substantive classifications that are “associated with the Company’s automation process”, the MUA suggests that the most sensible construction that gives work for the caveat is when the “associated” work refers to lashing and pinning tasks.

1. Separately to the caveat, the MUA contends that a purposive construction of cl.26 - when read as a whole and in context with the other clauses in the Agreement that established different rosters – shows various benefits to employees not on the “flex” roster. As such, if employees on the 42 hour flex roster were required to perform functions other than lashing or pinning, this would represent a benefit to VICT that was not bargained for and is not permitted by cl.26.1.

1. While the MUA correctly anticipated that VICT would contend the caveat supported its position, VICT’s primary position did not rely on that term. VICT’s primary position was that the Agreement neither prescribed, nor proscribed, any particular duties for a Level 1 general hand and, as a consequence, the Agreement did not prevent those employees performing tasks on the RC Desk “or indeed any tasks”.

1. In relation to the caveat, should it be necessary to consider, VICT contended that the caveat applied to Level 1 general hands and that RC Desk work is work “associated with” use of the ASC (with the latter being part of the company’s “automation process”).

Consideration

1. Turning firstly to the role of a Level 1 “Lasher / pinner (general hand)”, VICT is mostly correct in stating the Agreement neither prescribes, nor proscribes, the content of that position. While the Agreement is largely silent on such matters, I do not consider that the role extends to “any” tasks at all. If the latter position was the case, then the classifications for the general hand and, for that matter, the other classifications would be largely meaningless. If nothing else, the inclusion of the words “Lasher / pinner” in the classification descriptor tell against it being a position at large.

1. Whatever the outer boundaries of a general hand’s role are, it is not necessary for me to consider them here. I am satisfied that the role contains some considerable flexibility around lashing and pinning work on the Terminal, as indicated by the position description. While that flexibility is not without limit, I consider it tolerably clear that the classification extends beyond “mere” lashing and pinning tasks and includes use of equipment in the Terminal when required for container movement, where the employee is trained to do so and there is an operational need.

1. I take some additional comfort when making the conclusions above by noting that both parties acknowledged that, as a matter of practice, general hands commonly perform tasks other than lashing or pinning.

1. The MUA’s position was somewhat more nuanced, however. Regardless of the scope of the lasher and pinner role, the MUA contends that cl.26.1 is intended to confine persons working on the 42 hour flex roster to lashing and pinning tasks.

1. I do not accept the MUA’s construction of cl.26.1. First, the text itself does not refer to “lashing and pinning tasks” or activities or work but instead states that the flex roster is designed for “lashers and pinners only” to be a “pathway” into the fixed roster. It impermissibly strains the language of “lashers and pinners” to mean persons performing (and only permitted to perform) lashing and pinning tasks. The natural meaning of “lashers and pinners” (a plural noun) in that clause is to persons employed in a role as a “Lasher / pinner (general hand)” in Schedule 5.

1. There is no reason to construe the Agreement such that a “Lasher / pinner (general hand)” might perform different tasks – or at least a subset of tasks – depending upon whether they are on the fixed roster, the flex roster, or are a casual “Supplementary Employee” performing different work patterns again. It would also be a curious result if casual lasher/pinners could perform work beyond the “mere” task of lashing and pinning, yet a permanent employee engaged on the flex roster could not, even though the flex roster was a “pathway” to the established fixed roster.

1. In light of my conclusions above, it is not strictly necessary to address the operation of the “caveat”. However, having regard to the detailed position of the parties, I will state my conclusions on it briefly.

1. While I accept the tenor of the MUA’s complaint that the caveat could be better expressed, it is not without work to do and I do not consider it can be disregarded as a drafting error and certainly not as an error for general hands.

1. In Schedule 5, the caveat is located underneath the classifications at Level 1A (and not Level 1). I note that neither party was suggesting that the caveat was intended to apply to Level 1A employees only and not, by way of implication, to the exclusion of Level 1 employees. I am satisfied that the reference in the caveat to the “above classifications” includes both Level 1 and 1A classifications. In circumstances where the same caveat text applies to Supplementary Employees (i.e. casual “lasher / pinner (general hand)” employees) it would be a peculiar result if it did not apply to the same classification for permanent employees as it does for casuals.

1. I consider that the caveat operates by way of expansion but, in doing so, it does not implicitly act to confine the substantive classifications nor to apply to a narrow activity of lashing and pinning tasks. Again with reference to casual employees, if the caveat for casuals was confined to lashing and pinning tasks, it would appear to have no work to do. I do not consider that the caveat is intended to have a different meaning when used at different locations in Schedule 5, although it might have a different effect depending upon the classification in question that it operates upon.

1. The better view of the caveat is that is an operative catch all that might, “where required”, involve an employee performing associated automation tasks beyond their typical duties. The fact that a number of classifications already involve some substantive tasks involving VICT’s automated processes does not mean that other associated tasks may be required from time to time. While inelegantly drafted, the caveat need not have the same effect for each of the classifications to which it applies (although it has the same meaning).

1. Were it necessary for me to do so, I would be satisfied that work on the RC Desk by a lasher / pinner general hand is associated work for the purpose of the caveats located in Schedule 5, for both Level 1 general hands and casual general hands.

Disposition

1. The answer to the agreed question for arbitration is “no”. The dispute is determined accordingly.

DEPUTY PRESIDENT

Appearances:

P Mohseni from the Applicant
C Gardner of Seyfarth Shaw Australia for the Respondent

Hearing details:

2022.
Melbourne:
December 19.

[1]     The ‘MUA’ is the defined term under the enterprise agreement, which is expressed to cover the Construction, Forestry, Maritime, Mining Energy Union (Maritime Union of Australia division). For consistency, I refer to the Applicant as the MUA in this decision.

[2]     See, e.g., WorkPac Pty Ltd v Skene (2018) 264 FCR 536, 580 at [197] (Tracey, Bromberg and Rangiah JJ) and James Cook University v Ridd (2020) 278 FCR 566, 580 at [65] (Griffiths and S C Derrington JJ),

[3]     E.g. Dempster v Comrie (2000) 96 FCR 570 at [18] (per Lehane J).

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