Darren McCarthy v Patrick Stevedores Holdings Pty Ltd

[2016] FWC 2039

[2016] FWC 2039 [Note: An appeal pursuant to s.604 (C2016/3503, C2016/3504, C2016/3505, C2016/3506, C2016/3507, C2016/3508, C2016/3510) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 10 June 2016 [[2016] FWCFB 3662] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Darren McCarthy and Others
v
Patrick Stevedores Holdings Pty Ltd
(U2015/4956, U2015/4957, U2015/4958, U2015/4959, U2015/4961, U2015/4962, U2015/4963, U2015/4965)

COMMISSIONER CAMBRIDGE SYDNEY, 1 APRIL 2016

Applications for relief from unfair dismissal - jurisdictional objections - ss. 385 and 396 of the Fair Work Act 2009 - whether dismissals were cases of genuine redundancy - s. 389 meaning of genuine redundancy - elements which constitute genuine redundancy - genuine redundancy established in each case - additional question as to whether one applicant had not been dismissed - jurisdictional objections upheld.

[1] This Decision is made in respect to eight applications for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The applications were lodged at Melbourne on 19 April 2015. The applications were respectively made by Darren McCarthy, Jeffery Phillips, John Mok, Joseph Tanti, Peter Jensen, Ryan Ambrose, Stephen Borg, and Stephen Lee (the applicants) and in each case the respondent employer is Patrick Stevedores Holdings Pty Ltd (the employer or Patrick). The applicants have been represented by The Maritime Union of Australia (the MUA) throughout the proceedings.

[2] The applications indicated that the date that the applicants’ dismissals took effect was 29 March 2015. Consequently, the applications were made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The applications which are the subject of this Decision, were part of a larger number of applications taken variously under sections 394, 365 and 739 of the Act (the package of applications). The package of applications was made by the MUA against Patrick in connection with the termination of employment of numerous individuals, as a consequence of the introduction of an automation process and associated restructuring at the employer’s Port Botany container terminal.

[4] The package of applications was listed for Directions before the Fair Work Commission (the Commission) and the Parties ultimately agreed on a series of timetables for processing the various matters. In respect of the s. 394 matters, the employer raised jurisdictional objections on the basis that each of the dismissals was alleged to be a case of genuine redundancy. A further jurisdictional objection was raised in respect to one matter which Patrick asserted did not involve the dismissal of the particular individual, Mr McCarthy. In accordance with the agreed timetables, the employer’s jurisdictional objections to the unfair dismissal applications have proceeded to arbitration in a Hearing conducted in Sydney on 1 December 2015.

[5] At the Hearing, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. The employer was represented by Mr J Darams, barrister. Mr Darams introduced evidence from one witness, Mr T Cheng, who was called to provide witness evidence on behalf of the employer in elaboration of his extensive statement. The applicants were represented by Mr A Slevin, barrister, who called three witnesses, and he introduced a further seven witness statements made in support of the unfair dismissal claims and against the jurisdictional objections raised by the employer.

[6] The applications were the subject of jurisdictional challenge made by the employer upon the assertion that each of the applicants’ dismissals was a case of genuine redundancy. In one case, a further jurisdictional objection was advanced on the basis that the individual applicant had not been dismissed, and thus subsection 385 (a) of the Act had not been satisfied. However, as the employer advanced its broader jurisdictional challenge to the applications under subsection 385 (d) of the Act, the requirements of subsection 396 (d) of the Act became relevant. Subsection 396 (d) of the Act relevantly stipulates that the Commission must decide whether the dismissal was a case of genuine redundancy, before any consideration of the merits of the application.

Background

[7] Patrick is a corporate entity which is part of the Asciano Limited Group (Asciano). Patrick operates container stevedoring services at, inter alia, Port Botany, New South Wales. The work of employees of Patrick engaged in the stevedoring services at Port Botany, is covered by the Patrick Terminals Enterprise Agreement 2012 (the 2012 Agreement).

[8] The 2012 Agreement commenced operation on 12 June 2012. On 18 July 2012, Asciano announced a $348 million capital investment redevelopment of the Port Botany terminal, which included the introduction of automation technology. The Port Botany terminal redevelopment project and the introduction of automation, anticipated a significant reduction in the number of employees required to operate the terminal. As a result, an extensive consultation process involving the MUA, Patrick, and its employees occurred in the period from July 2012, up until the date of the actual commencement of automated operations (cutover) on 29 March 2015. This consultation process was not without its difficulties, and a variety of issues surrounding the introduction of this significant workplace change were the subject of detailed analysis in a lengthy Decision of Sams DP issued on 22 April 2014 1.

[9] Part of the consultation process surrounding the Port Botany redevelopment and automation, involved disputation over what Patrick had determined to be the labour requirements for the terminal at and then following cutover. Patrick had determined its proposed labour model following the commencement of automation, and the MUA and its members employed by Patrick, disputed both the overall number of employees in the labour model, and the particular numbers for various positions within the overall labour model. As a result of the consultations which occurred, the labour model was revised. Nevertheless, a substantial reduction of approximately 160 positions was anticipated.

[10] Consequently, Patrick introduced a system for identifying the preference of existing employees for the various anticipated roles existing at the terminal under the labour model after cutover. Employees were invited to express their preferences, and a selection process was developed which used a variety of selection criteria to essentially rank individuals in respect to their identified preferences. In addition, because of the overall anticipated reduction in numbers, employees were also asked to provide an indication of their desire to be considered for redeployment within the Port Botany terminal, or more broadly across the Asciano group.

[11] Each of the applicants, other than Mr McCarthy, was ultimately unsuccessful in being selected to be retained in a position for which they had expressed a preference. Following unsuccessful grievance appeals, the applicants were provided with notification that the position they had occupied would not be available after cutover, and consequently, each of the applicants, other than Mr McCarthy, was advised that their employment would be terminated by reason of redundancy on 29 March 2015.

[12] The MUA, on behalf of the applicants, subsequently filed the claims for unfair dismissal remedy which have been challenged by Patrick on the basis that each dismissal is asserted to be a case of genuine redundancy, and in respect to Mr McCarthy, a person who had not been dismissed.

The Jurisdictional Objections

[13] Mr Daramswho appeared for Patrick, made oral submissions in support of written material which had been filed on behalf of Patrick. Mr Darams submitted that the applicants did not have standing to make unfair dismissal claims because each dismissal was a case of genuine redundancy, and in the case of Mr McCarthy, there had been no dismissal.

[14] Mr Darams firstly referred to subsection 389 (1) (a) of the Act which provided an aspect of the definition for the meaning of genuine redundancy which required that the person’s job was no longer to be performed by anyone because of changes in operational requirements.Mr Darams submitted that the Decision of Sams DP issued on 22 April 2014, had resolved the question as to whether the positions of, inter alia, the applicants, were no longer required to be performed by anyone because of changes in the employer’s operational requirements. Mr Darams submitted that there had been no challenge made to the Decision of Sams DP, and that the applicants circumstances satisfied the requirements of subsection 389 (1) (a) of the Act.

[15] Mr Darams stressed that there had been no dispute that the overall number of jobs or positions or roles within the organisation had clearly decreased. Mr Darams made submissions which focused on the reduction in numbers of clerical roles, and also the reorganisation of certain crane driving and associated roles. Mr Darams said that the evidence established that a number of specific roles, such as straddle drivers, would clearly be made redundant as a consequence of automation, and that other roles would be reorganised and that there would be a net reduction in the overall number of crane driving and associated roles.

[16] In respect to the clerical positions, Mr Darams submitted that there was a reconfiguration of some of the functions of various clerical roles which existed prior to automation and which became functions that were part of a new grade 6 senior clerk role. Mr Darams submitted that a consequence of this rearrangement meant that a number of clerical positions that existed prior to automation became redundant at cutover.

[17] It was submitted by Mr Darams that the particular circumstances in this instance represented a paradigm example where jobs no longer existed as a consequence of changes in the operational requirements of the employer. Mr Darams said that the Commission should be satisfied on the evidence, that the position that each of the applicants had before automation was no longer required to be performed by anyone after automation. Consequently, Mr Darams submitted that the meaning of genuine redundancy, as extracted from the requirements of subsection 389 (1) (a) of the Act, had been met.

[18] Mr Darams also submitted that any consultation requirements of the 2012 Agreement had been satisfied and this was also reflected in the Decision of Sams DP of 22 April 2014. Mr Darams submitted that there had been no contest advanced in respect to subsection 389 (1) (b) of the Act.

[19] Mr Darams also made submissions which addressed the question of whether subsection 389 (2) of the Act, which was concerned with redeployment, had been satisfied. Mr Darams submitted that any redeployment of the applicants had been included as part of a thorough process, whereby the employer asked each of the affected employees whether they actually wanted to be redeployed. Further, Mr Darams indicated that the employer had not confined such redeployment prospects to the Port Botany terminal, and the process adopted by the employer had properly satisfied the requirements of subsection 389 (2) of the Act.

[20] Mr Darams made further submissions which rejected the proposition that because some of the applicants had come back to work for Patrick, that this circumstance somehow rendered their dismissal not a case of genuine redundancy. Mr Darams said that it was irrelevant to the determination that has to be made under s. 389 if, as a result of some unforeseen circumstances, the employer found it necessary to re-engage some of the redundant employees.

[21] Mr Darams made further submissions which addressed the particular circumstances of Mr McCarthy. According to the submissions of Mr Darams, Mr McCarthy had not actually been dismissed, but instead Mr McCarthy had accepted an offer of what was described as an agreed demotion. Mr Darams said that these circumstances represented a consensual or agreed variation to the terms of employment. Therefore, according to the submissions of Mr Darams, Mr McCarthy was not a person who had been dismissed in accordance with the meaning of dismissed contained in s. 386 of the Act. Further, Mr Darams said that if Mr McCarthy had been dismissed, then such dismissal would satisfy the meaning of genuine redundancy in any event.

[22] In summary,Mr Darams submitted that the applicants’ dismissals were cases of genuine redundancy because each of the relevant provisions of s. 389 of the Act had been satisfied. Specifically, Mr Darams submitted that the job of each of the applicants no longer existed because of operational changes, and the employer had complied with its consultation requirements, and it would not have been reasonable in all the circumstances for any of the applicants to have been redeployed. In addition, in the case of Mr McCarthy, he was a person who had not been dismissed in satisfaction of the meaning of “dismissed” contained in s. 386 of the Act. Consequently,Mr Darams said that none of the applications had jurisdiction and therefore, all of the applications for unfair dismissal remedy should be dismissed.

The Case Against the Jurisdictional Objections

[23] Mr Slevin, who appeared for the applicants, made oral submissions in amplification of a written outline of submissions which was marked as MUA 1. Mr Slevin commenced his submissions by asserting that the Decision of Sams DP made in April 2014, could not have bearing upon the dismissals of the applicants which occurred in March 2015. Mr Slevin said that the Decision of Sams DP was simply not relevant to the determination of the employer’s jurisdictional objections to the unfair dismissal claims made by the applicants.

[24] Mr Slevin referred to various Judgements and Decisions which he said provided relevant authority in respect to the question of the meaning of genuine redundancy, which arose in respect to s. 389 of the Act. According to the submissions made by Mr Slevin, those applicants who were clerical employees provided evidence which demonstrated that the duties, tasks and functions that they had performed prior to cutover continued to be undertaken following the implementation of the automation at the terminal. Mr Slevin submitted that all that had happened was that there had been a name change to the particular roles that the clerical employees had previously performed.

[25] Consequently, Mr Slevin submitted that the evidence that had been provided about the on-going work of those applicants who were clerical employees meant that the requirements of subsection 389 (1) (a) of the Act had not been met. Mr Slevin said that the positions of those clerical employees had not become redundant because their positions were continued at the terminal as essentially the same job, with the only alteration that could be identified involving an expansion to the performance of the work on a 24-hour, seven days a week basis. Mr Slevin submitted that the collection of functions, duties and responsibilities entrusted to the clerical employees was the same collection of functions, duties and responsibilities that were entrusted to someone else after the restructure.

[26] The submissions made by Mr Slevin also addressed the position of those applicants who had been crane drivers before the cutover. In respect to this group of the applicants, Mr Slevin made submissions which relied upon the asserted failure to meet the requirements of subsection 389 (2) (a) of the Act. The submissions made by Mr Slevin identified that the employer had reduced the number of crane drivers, but had done so in a fashion whereby the work of crane drivers was picked up via a pool of Permanent Irregular Roster (PIR) employees. According to Mr Slevin, this meant that the dismissal of these individuals were not cases of genuine redundancy because it would have been reasonable to have redeployed those persons as crane drivers.

[27] Mr Slevin made further submissions which addressed the particular circumstances of the individual applicant, Mr McCarthy. Mr Slevin referred to the meaning of “dismissed” contained in s. 386 of the Act. Mr Slevin referred to the evidence about the changed circumstances for Mr McCarthy, whereby he was, before cutover, a grade 5 clerical employee and he subsequently took a position as a grade 3 stevedore. Mr Slevin submitted that the changes were significant, and as Mr McCarthy was presented with Hobson’s choice, he then accepted the repudiation of the contract of employment and this circumstance represented his dismissal from employment.

[28] The submissions made by Mr Slevin asserted that Mr McCarthy had been dismissed from his position as a grade 5 clerical employee, and that dismissal was not a case of genuine redundancy for the same reasons that applied to the other applicants who were also clerical employees.

[29] In summary, Mr Slevin submitted that the jurisdictional objections raised by the employer had not been established. Mr Slevin submitted that the dismissals of the applicants did not satisfy the meaning of genuine redundancy as required by s. 389 of the Act. Further, in the case of Mr McCarthy, the jurisdictional objection based on the assertion that Mr McCarthy had not been dismissed, had similarly failed. Therefore, Mr Slevin urged the Commission to dismiss the jurisdictional objections raised by Patrick.

Consideration

[30] This Decision has involved the determination of jurisdictional objections which were advanced by the employer against eight applications for unfair dismissal remedy taken under s. 394 of the Act.

[31] Relevantly, s. 396 of the Act requires that the Commission must decide a number of specified matters before considering the merits of any application made under s. 394. In this instance, the jurisdictional objections arise from the provisions of subsection 396 (d) of the Act. The particular provisions of s. 396 of the Act are:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) ...

...

(d) whether the dismissal was a case of genuine redundancy.”

[32] In addition, in the case of one of the applicants, Mr McCarthy, a further jurisdictional objection was raised on the basis that Mr McCarthy was not a person who had been dismissed within the meaning of “dismissed” contained in s. 386 of the Act. Consequently, the question of whether the dismissals of the applicants satisfied the meaning of genuine redundancy, and the specific issue as to whether Mr McCarthy had been dismissed, have been dealt with as discrete issues and before any broader consideration of the merits of the applications would be potentially undertaken.

The Genuine Redundancy Question

[33] It would seem that a person cannot be unfairly dismissed if the dismissal was a case of genuine redundancy. This appears to be the clear prescription provided by subsection 385 (d) of the Act:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[34] Section 389 of the Act provides for a meaning of genuine redundancy:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[35] An examination of the provisions of s. 389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy, and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy.

[36] For convenience, I have abbreviated the three elements identified within s. 389. The first affirmative element which is extracted from subsection 389 (1) (a) has been described as “job lost due to operational requirements”, the second affirmative element extracted from subsection 389 (1) (b) has been called “consultation obligations”, and the third negatory element found in subsection 389 (2) is abbreviated as “reasonable redeployment”.

[37] Consequently, my approach to consideration of the question of whether the dismissals of the applicants were cases of genuine redundancy has involved examination of the three separate elements contained in s. 389 of the Act, such that, each of these three separate elements must, in combination, be satisfied in order to make any finding of genuine redundancy. This means that the two affirmative elements contained in subsection (1) must be established, and the negatory element found in subsection (2) must not be present in order to make a finding that a particular dismissal was a case of genuine redundancy.

Job Lost Due To Operational Requirements

[38] In this instance, the evidence has established that the applicants were eight (or seven if Mr McCarthy was not dismissed) of a total of approximately 160 employees dismissed on the basis of alleged redundancy. The decision by the employer to dismiss these employees was directly connected with the introduction of automation and the associated restructure implemented at the Port Botany terminal.

[39] The evidence has established that in the circumstances of those applicants who were clerical employees, much of the work that they had performed before being dismissed was redistributed, reconfigured and reassigned into the post-automation positions of senior clerks. Following automation, this work, in its reconfigured manifestation, was performed by those employees who were successful in being selected for the senior clerk positions. The redistribution, reconfiguration or reassignment of work amongst retained employees does not alter the fact that a job, as opposed to the work of an individual, was no longer required.

[40] In this instance, there was a reduction from about 25 pre-automation clerical positions to about 10 post-automation clerical positions. Therefore, at the time of cutover, amongst the total job reductions, there were about 15 clerical jobs that Patrick no longer required.

[41] Consequently, the first element of s. 389 of the Act has been established, that is, the employer no longer required the jobs of the applicants as clerical employees (and others), to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

Consultation Obligations

[42] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy.

[43] There was no assertion made on behalf of the applicants that Patrick had not complied with consultation obligations arising under the 2012 Agreement. The extensive consultation processes undertaken by the Parties both before and after the April 2014 Decision of Sams DP, is a matter of undisputed record.

[44] It should also be noted that the MUA has separately advanced dispute resolution processes on behalf of a number of aggrieved employees. These matters are the subject of separate proceedings and, unlike applications for unfair dismissal remedy, the test of any genuine redundancy may be irrelevant to the determination of those grievances.

[45] In any event, I find that the consultation obligations have been met, and this element of s. 389 of the Act has been satisfied.

Reasonable Redeployment

[46] The third element of s. 389 of the Act is the negatory provision contained in subsection 389 (2). This element renders what may have been a genuine redundancy, which may have possessed the elements of subsection 389 (1), to not be a case of genuine redundancy, if redeployment was reasonable in all the circumstances. Redeployment is contemplated to extend to any associated entities of the employer.

[47] The first and second affirmative elements extracted from subsection 389 (1) broadly involve an examination of the conduct of the employer, essentially what gave rise to the dismissal and whether there was compliance with any relevant consultation obligations. The third element concerning reasonable redeployment involves examination of both the employer’s actions and those of individual employees. The reasonableness or otherwise of any redeployment is a matter that would need to be assessed on a case by case basis, having regard for the approach to redeployment adopted by both the employer and the employee.

[48] Consequently, the consideration of the reasonable redeployment element of s. 389 of the Act has involved an examination of the actions which the employer undertook in the pursuit of redeployment, both in general application, and for individual employees, and it has also involved careful scrutiny of the conduct and approach to redeployment demonstrated by the applicants.

[49] In this instance, it was asserted that reasonable redeployment was not made available to those applicants who were crane drivers before cutover. The reasonable redeployment was said to have been identified by the circumstances where crane drivers were offered and obtained post-automation PIR roles which involved a considerable amount of crane driving work. The corollary of this outcome was said to involve a failure by Patrick to reasonably redeploy the crane drivers.

[50] This proposition in large part relies upon contest as to the particular configuration of the labour model that Patrick adopted. The argument being that there were insufficient numbers of crane driver positions in the labour model that was ultimately adopted. The MUA has asserted that the number of supplementary employees engaged after automation has vindicated their position regarding inadequacies with the labour model. This may well be true.

[51] However, whether an underestimation of the numbers of particular positions within the labour model could translate into a finding that reasonable redeployment was available in satisfaction of subsection 389 (2) of the Act, is the issue for present determination. It is understandable that any individual crane driver who was made redundant, and then witnessed a requirement for crane driving work to be undertaken by suitably qualified PIR employees, would believe that his or her redundancy was a sham. The labour model may well have contained an insufficient number of crane driver positions, at least in the immediate post-automation period. But does this circumstance establish that it would have been reasonable for the aggrieved crane driver to have been redeployed?

[52] The proposition that was advanced by the MUA would in effect, require a finding that it would have been reasonable in all of the circumstances, for a crane driver to have been redeployed into a crane driver role. In reality, that circumstance would involve nothing more than the continuation of the employment as a crane driver. The proposition represents something of a contortion of the concept of redeployment, as would be understood to be applicable, in respect to subsection 389 (2) of the Act. Essentially, the agitation of this issue was an argument about the number of positions and their reconfiguration that was applied within the labour model, rather than any valid criticism of the approach to reasonable redeployment.

[53] In all the circumstances, I believe that no criticism can be made of the approach to redeployment adopted by Patrick. It is relevant to also note, that the applicants indicated that they were not interested in redeployment as was evidenced by, inter alia, the various copies of the redeployment preference forms and associated documents provided with Exhibit 1 2.

[54] Consequently, the requirements which have been established to arise from subsection 389 (2) of the Act, as confirmed in the Full Bench Decision in Ulan Coal Mines v Honeysett and Ors 3, have been satisfied in respect to all of the applicants. That is, it would not have been reasonable in all the circumstances, for any of the applicants to be redeployed within either the employer’s enterprise, or the enterprise of an associated entity of the employer.

Mr McCarthy - Dismissed or Demoted in Satisfaction of Subsection 386 (2) (c)

[55] In view of the findings made on the question of genuine redundancy, it would appear to be unnecessary to make any determination as to whether Mr McCarthy was or was not dismissed, or if he was not dismissed, whether his demotion satisfied the requirements of subsection 386 (2) (c) of the Act. The futility for any determination of this question arises because even if Mr McCarthy was dismissed in satisfaction of the meaning of “dismissed” contained in s. 386 of the Act, such a dismissal was a genuine redundancy and he is jurisdictionally barred from making an application for unfair dismissal remedy.

Conclusion

[56] This Decision has been made in respect to jurisdictional objections raised by the employer in response to eight applications for unfair dismissal remedy. The jurisdictional objections have been advanced on the basis that the dismissals were cases of genuine redundancy and therefore, by operation of subsection 385 (d) of the Act, without standing. Further, in respect to one of the eight applications, the employer also advanced a jurisdictional objection on the basis that the person had not been dismissed.

[57] The determination of the jurisdictional objections has focused upon the meaning of genuine redundancy as contained in s. 389 of the Act. Section 389 of the Act contains two affirmative elements and one negatory element which must be satisfied so as to establish whether a dismissal was or was not a case of genuine redundancy.

[58] Upon analysis, I have determined that, in respect to all of the applications, the first two affirmative elements contained in subsection 389 (1) of the Act have been satisfied. Further, and again in respect to all of the applications, the negatory element contained in subsection 389 (2) which deals with reasonable redeployment, was not established, and therefore the dismissals of the applicants were all cases of genuine redundancy.

[59] In view of the findings of genuine redundancy made in respect of all of the applications, it is unnecessary to make any determination on the question of whether one of the applicants was or was not dismissed.

[60] The applications involve circumstances of genuine redundancy in satisfaction of the meaning of genuine redundancy established by s. 389 of the Act. Consequently, the jurisdictional objections made by Patrick must be upheld.

[61] The applications for unfair dismissal remedy are jurisdictionally barred and must therefore be dismissed. Appropriate Orders dismissing each of the applications will be issued accordingly.

COMMISSIONER

Appearances:

Mr A Slevin of Counsel, with Mr A Jacka appeared for The Maritime Union of Australia.

Mr J Darams of Counsel with Mr M Stokes of Seyfarth Shaw Australia appeared for Patrick Stevedores Holdings Pty Ltd.

Hearing details:

2015.

Sydney:

December, 1.

 1   Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2014] FWC 2651.

 2   Exhibit 1 – “TC 27” “TC 28” ‘TC 29” “TC 34”

 3   Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.

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