Maritime Union of Australia, The
[2017] FWC 839
•14 FEBRUARY 2017
| [2017] FWC 839 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Maritime Union of Australia, The
(RE2016/540)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 14 FEBRUARY 2017 |
Application to deal with a right of entry dispute – application to vary order PR586898 issued by Cloghan, C on 25 October 2016 – basis for partial variation made out – decision and order otherwise not changed.
[1] The Maritime Union of Australia (the MUA) has made an application in which it seeks a variation of the Order 1 issued by Commissioner Cloghan in conjunction with a decision,2 issued on 25 October 2016. The variation application is made pursuant to ss.602 and 603 of the Fair Work Act 2009 (the FW Act). The MUA sought the variation so as to correct what it contended were errors in the Order.
[2] The variation application has been considered on the basis of written submissions provided by the MUA and Toll Energy Logistics Pty Ltd (Toll Energy) parties. Both parties to this matter were given the opportunity to request a hearing, but no such request was received.
[3] It is appropriate that I note at the outset that, shortly after issuing that decision, Commissioner Cloghan retired. As a result, I have considered the variation application.
The Commissioner’s decision and order
[4] The Commissioner’s decision dealt with an application made by the MUA for the resolution of a right of entry dispute. The Commissioner recorded that the MUA sought an order pursuant to s.484 of the FW Act that a permit holder of the NUW may enter the Materials Offloading Facility (the MOF) and/or WAPET landing on Barrow Island, for the purpose of holding discussions with employees who are engaged in the occupation of waterside worker and who perform work on the premises and who wish to participate in those discussions. The Commissioner noted that, notwithstanding the entity initially named in the application, it was subsequently established that Toll Energy Logistics Pty Ltd (Toll Energy) was the occupier of the premises. The matter proceeded on this basis.
[5] The Commissioner’s decision detailed the evidence given in the matter and the industrial arrangements which have applied to work on Barrow Island as part of the substantial Gorgon Project. He particularly noted that the Gorgon Project had now moved into a production phase whilst certain construction work continued. 3 The Commissioner considered the various functions undertaken by employees and the MUA eligibility rules. He stated:
“[81] In conclusion, work has been organised where the Employer has established “teams”. The OLF team has a primary purpose of loading and unloading vessels. Employees are not always employed at the loading/unloading facilities. Employees can be deployed elsewhere when unable to be usefully used at the MOF and WAPET landing. A declining amount of time is expected to be worked in the loading and unloading of vessels and a variety of suitably qualified employees can be rotated through the MOF/WAPET loading if need be.
[82] Currently two LCTs arrive at Barrow Island each alternate day. The BCC Brisbane is berthed at Barrow Island twice a month for approximately five days on each occasion. While this situation is expected to change over the course of the next 12 months and there may be no need for an OLF team, the above vessel movements were confirmed by Mr Osman as at the date of the hearing.
[83] The OLF team consists of nine (9) or 10 employees whose principal purpose is the loading and unloading of vessels. The occupation of those employees is set out by Mr Osman at paragraph 88 of his witness statement.”
(references removed)
[6] Further, the Commissioner stated:
“[92] The evidence generally demonstrates the transition from pre and post 1 April 2016 operations. However, the particular focus of work at the MOF and WAPET landing remains. The Employer’s desire for training and familiarisation of employees to enable them to be multi-skilled and multi-functional across numerous work locations has not been fully achieved and there is still an element of “permanency” in the various teams.
[93] Mr Osman’s evidence is that rotations are being “phased in” is borne out of his evidence that currently the OLF team are still spending 50% (or 30-35%) of their work time loading and unloading vessels at the MOF and WAPET landing.
[94] With respect to the OLF team, I am satisfied, on the evidence, that the duties of employees away from the MOF and WAPET landing are not “incidental” to the loading and unloading of vessels; the work is part of the overall logistics of Toll Energy’s SBS Contract with Chevron.
[95] While the Employer may have an objective intention of a flexible workforce which is capable of performing a variety of skills across multiple locations on Barrow Island, the evidence demonstrates that the previous operational context of limited movement of employees in the Marine Team remains with respect to the now entitled OLF team. Typically, if a LCT is berthed, work commences at 6:45 am and is finished by 3:30 pm on the same day and “after that time, GSOs who have been performing that work (OLF team) either prepare for the next day’s activity, support the despatch or receipt to and from the yard…” This plainly seems to be the normal activities of loading and unloading vessels at a wharf and alongside the wharf.”
(references removed)
[7] The Commissioner concluded that he was satisfied that the Off Loading Facility (OLF) team is comprised of employees engaged in the occupation of a waterside worker. He concluded that employees in the Shore Base (SB) team were not following the occupation of a waterside worker. 4 He concluded that employees in the Logistical Operations (LO) team were not following the occupation of waterside worker.5 The Commissioner stated:
“[122] In conclusion, having considered the oral and documentary evidence, case law, legislation and submissions, I find that the employees employed by Toll Energy in the occupations as set out by Mr Osman in paragraph 88 (a) to (g) of his witness statement, and assigned to the OLF team are following the occupation of a waterside worker. Consequently, the MUA is entitled to represent their industrial interests pursuant to s.484(b) of the FW Act. Accordingly, an Order will be issued to reflect this Decision.”
[8] For the sake of completeness, I note that Mr Osman provided a statement confirming that he was employed by Toll Transport Pty Ltd in the Toll Energy business unit in the dual roles of Shore Base Manager-Barrow Island and Business Unit Manager.
[9] The Commissioner’s order stated:
“In accordance with the Decision issued by the Fair Work Commission (Commission) on 25 October 2016, [2016] FWC 7073, and pursuant to paragraph 505(2)(e) of the Fair Work Act 2009 (FW Act), the Commission hereby orders that:
[1] A permit holder of the Maritime Union of Australia (MUA), in accordance with s.484 of the FW Act, may enter the MOF and WAPET landing located on Barrow Island for the purpose of holding discussions with employees employed by Toll Energy in the occupations as set out by Mr Osman in paragraph 88 (a) to (g) of his witness statement and assigned to the OLF team and who wish to participate in those discussions.
[2] Should the MUA wish to enter the premises, it must do so in accordance with Division 6, Part 3-4 of the FW Act.
[3] This Order will operate on and from 25 October 2016.”
The submissions
[10] There are three elements of the Commissioner’s decision and order which the MUA seek to vary. The first of these goes to identification of Toll Energy as the employer whereas the employees were employed by Toll Transport, undertaking work for Toll Energy consistent with the evidence of Mr Osman. 6 The MUA asserted that this was a clerical error on the part of the Commissioner which was extended into the Order. I have referred to this as the ‘Employing Entity’ issue. I note that, in its submissions, Toll Energy acknowledges that it does not employ any of the employees and that Toll Transport Pty Ltd is the relevant employer.
[11] The second error contended by the MUA goes to the identification of the members of the OLF team. The MUA position is that the Commissioner’s decision 7 made it clear that all members of the OLF team were engaged in the occupation of waterside worker and were entitled to be represented by the MUA. The final paragraph of the Commissioner’s decision and his Order referred to the occupations as set out by Mr Osman in paragraph 88(a) to (g) of Exhibit R4. The occupation in contention in this respect is described in paragraph 88 (h) as “1 quarantine inspector is on hand at the receipt of freight to ensure quarantine compliance”. The MUA asserts that a proper construction of the Commissioner’s decision would require the conclusion that the whole of the OLF team met the test of being waterside workers and that this necessarily included the team member who undertook quarantine duties. The MUA asserted that the exclusion of the person undertaking quarantine duties was an inadvertent clerical error which should be corrected.
[12] Toll asserts that the question of identification of the employees who are “waterside workers” was fundamental to the dispute being dealt with by the Commissioner and that the Commissioner referred differentially to quarantine inspectors in his decision. 8 Toll asserted that quarantine inspectors, referenced in paragraph 88(h) of Mr Osman’s statement are excluded from the order because they are not in the OLF team. Toll asserts that this position was supported by evidence presented in the hearing of the matter and by its submissions to the Commissioner.9
[13] I note that, in response, the MUA disagrees with Toll and concludes that:
“17. At no point did he identify, query, review, consider, suggest or conclude the team member who undertook, quarantine duties when the team was working at the MOF was to be assessed differently to the rest of the team or was not a waterside worker. The only difference between that employee and all the others was its listing as the last item in the sub-paragraphs of paragraph 88.” 10
[14] The third error contended by the MUA goes to the inclusion in the order of the location of discussions under s.484, which the MUA asserted was never a matter at issue in the proceedings. The MUA submission is that:
“22. In the Applicant’s oral submissions, the appropriateness of the “old crib room” as the venue for holding discussions at the MOF was raised as an issue. In its oral submissions the Second Respondent identified it was unaware “that was an issue between the parties. We do not believe it would be appropriate in the circumstances to make any order.” The Commission did not address that issue at all in the Decision.
23. Other than that exchange in oral submissions, which was specifically limited to which room at the MOR was appropriate for discussions, the issue of the location for holding discussions under s.484 was not addressed by the parties or the Commissioner. Most especially, an issue about the location for discussions for employees working elsewhere than the MOF was never raised in any way by the parties. Nor was any issue raised about whether discussions under s.484 should only be held at the MOF and WRAPET. Such questions about location were not raised by the parties in the application, in the evidence, in submissions or by Commission at the hearing.
24. Correspondingly, in the Decision the Commissioner did not give any consideration to, let alone make any determination about, the location of discussions under s.484 with members of the OLF team when they are working at locations away from the MOF, the issue of whether discussions should be held at the MOF and WAPET or elsewhere, or the location for discussions that are held at the MOF.
25. In the absence of any evidence, any submissions or any consideration being given to the issue in the Decision, it is clear that limiting entry in the Order to the MOF and WAPET was an unintentional error and the Order should be amended by removing those limitations so that it continues simply to refer to entry to Barrow Island.” 11
[15] Toll asserts that the reference in the order to the MOF and WAPET landings was because those are the only premises which Toll Energy was identified as being an occupier of, and other premises where waterside work is actually performed. Toll referred to the Commissioner’s decision in the following terms:
“[2] The MUA seek an order pursuant to s.484 of the FW Act that a permit holder of the MUA may enter the Materials Offloading Facility (MOF) and/or WAPET landing on Barrow Island, for the purpose of holding discussions with employees who are engaged in the occupation of waterside worker and who perform work on the premises and who wish to participate in those discussions.” 12
[16] Toll Energy asserted that the reference in the Commissioner’s order to the MOF and WAPET landing did not represent an obstacle to the MUA exercising its entry rights under s.484 and that it reflected the balance which the Commissioner considered to be appropriate pursuant to that section of the FW Act.
[17] In response, the MUA asserted that the Toll Energy submissions were inconsistent with the facts which it sought to rely upon before the Commissioner and that this hearing had progressed to consider issues which differed from those identified in the initial application. The MUA submission was that:
“24. Amending the Order as proposed would merely remove the effective limitation that the location of meetings for employees who work around the Island can only be at the MOF or WAPET when no such issues was addressed in the proceedings or in the Decision. Amending the Order would not decide the issue of location and instead leaves that open for the parties to address as and if necessary relying upon the relevant provisions of the Act.” 13
Sections 602 and 603
[18] These sections state:
“602 Correcting obvious errors etc. in relation to the FWC’s decisions
(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.
603 Varying and revoking the FWC’s decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2‑3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);
(c) a decision under Part 2‑5 (which deals with workplace determinations);
(d) a decision under Part 2‑6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.
Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”
[19] In terms of s.602, the MUA relies on a number of authorities, commencing from Justice Munro’s decision in Re Timber and Allied Industries Award 1999. 14 That decision is referenced in the Explanatory Memorandum in the following terms:
“2316. In order to avoid unnecessary technicality, clause 602 allows FWA, on its own initiative or on application by a person, to correct or amend any obvious error, defect or irregularity in relation to a decision of FWA (including an instrument made by FWA). This clause is intended to be a statutory analogue of the ‘slip rule’ used by superior courts to correct certain errors in orders (see Re Timber and Allied Industries Award 1999 [2003] AIRC 1137 at [29]-[30]). This clause does not apply, however, to a modern award or a national minimum wage order. (Clauses 160 and 296 deal with corrections to modern awards and national minimum wage orders.)”
[20] In terms of s.603 of the FW Act, the MUA submitted that:
“35. The terms of s.603 “make it clear that the power conferred was intended to apply to any decision of the Commission, however described subject to the exclusions in s.603(3)” which are not relevant to the current proceedings. It is also clearly intended to be broader than the statutory form of the slip rule embodied in s.602.” 15
[21] The MUA also referred to the Full Bench decision in RotoMetrics Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 16 in support of its position that, whilst s.603 was not a mechanism which would enable a single member to address areas that should be properly considered through an appeal, s.602 may be used in appropriate cases as an alternative to appeal proceedings.
[22] The Toll Energy position was that s.602 provided the Commission with the ability to correct obvious errors, defects or irregularities rather than to enquire into or review the merits of a decision. In this respect, Toll Energy referred to the RotoMetrics decision.
[23] Toll Energy accepted that s.603 provided a broad discretion to the Commission. It relied on the position set out by Ross J in Grabovsky. 17
[24] I note that Toll Energy also referred to a number of other decisions of the Commission in support of its position that s.603 should not be applied so as to re-litigate the original case and an appropriate basis for variation of the Commissioner’s decision had not been established.
Findings
[25] I have initially considered the extent to which the matters raised by the MUA can be characterised as an obvious error, defect or irregularity in accordance with s.602 of the FW Act. In this respect I have applied the concept of “the slip and error rule” considered by Munro J. in Re Timber in the following terms:
“[31] A perusal of the authorities in this area indicates that the slip and error rule has been employed in a number of contexts and has wide application. Such applications include but are by no means limited to: the addition of words in an Order enabling interest to be added to a judgement sum7; an adjustment of a monetary amount in an Order where the incorrect amount was calculated due to a clerical error; and an amendment to an Order prescribing the incorrect amount of interest payable on a judgment debt.
[32] Einstein J. in Currabubula & Paola v State Bank NSW. Currabubula v State Bank NSW, and the Full Court of the Federal Court in Elyard Corporation Pty Limited v DDB Needham Sydney Pty Ltd provide a comprehensive summary of the scope and principles of the rule in judicial proceedings.
[33] The rule is concerned with a discretion, in the exercise of which considerations of fairness and the justice of the amendment are relevant. Because of the nature of the power, and circumstances in which it will be exercised, the Correction Order operates from the date of the earlier Order with retrospective effect, to make the corrected Order operate with full force as corrected.
[34] Of particular relevance to the matter before the Commission, the slip and error rule enables a correction in the following circumstances:
(references removed)
[26] The Full Bench in Rotometrics stated:
“[29] Section 602 is intended to be a statutory analogue of the “slip rule” used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the “slip rule” is permissible:
“ where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings;
• where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and
• where the error is manifestly clear; where an ‘officious bystander would reply when asked if the amendment was appropriate: “Of course”’.””
(references removed)
[27] It seems to me that the employing entity issue may be capable of being described in this matter in that the order permits discussions with certain employees of Toll Energy. Mr Osman’s evidence appears to me to invite confusion about who was the employer. He refers, at varying points, to Toll Energy employees. 18 Consequently, in operational terms, it appears that Mr Osman did not differentiate between employees of Toll Energy and employees of Toll Transport. Mr Osman understood that, at least some employees were covered by the Toll Group - TWU Enterprise Agreement 2013-2017.19 That agreement has application to Toll Holdings Ltd and to each of its wholly-owned subsidiaries who employ a transport worker. Indeed, it is not until consideration of the attachments to his statement20 that it becomes clear that the employing entity is Toll Transport Pty Ltd. I have concluded that the distinction between Toll Energy and Toll Transport became somewhat academic in the course of the hearing in this matter but nevertheless it remains a significant distinction such that it affects the character of the order. Consequently, the decision and order make little sense in referring to employees employed by Toll Energy whereas this is not the case in reality. I am satisfied the question of the employing entity was not in dispute between the parties and have concluded that, in this respect, the Commissioner’s decision and order simply reflects an oversight.
[28] In terms of the Quarantine Inspector issue, I am not persuaded that this represents any form of obvious error. Mr Osman’s witness statement 21 refers to 10 employees per swing who are allocated to the OLF team. In that statement, he then describes 10 employees in the following sub- paragraphs (a) to (g). Sub-paragraph (h) simply refers to a quarantine inspector who is on hand. The Commissioner’s decision22 is absolutely specific in limiting his findings about the work undertaken within the OLF team such that this excluded the Quarantine Inspector. I have concluded that this differential treatment of the Quarantine Inspector function was consistent with the decision. Further, I am not satisfied that the various steps in the Commissioner’s reasoning demonstrate that the exclusion of the Quarantine Inspector from the ultimate order can be described as any form of obvious error consistent with s.602. in reading this conclusion, the extent of the difference between the MUA and Toll Energy is significant and the issue even raises questions about who employs the Quarantine Inspectors.
[29] In terms of the inclusion in the order of the locations where discussions, pursuant to s.484 may occur, I am similarly not satisfied that this aspect of the order should be described as an obvious error, defect or irregularity. Section 484 states:
“484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.
Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).
Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”
[30] Having considered the evidence before the Commissioner, it seems to me that the issue of where that work was undertaken and the nature of that work, were matters that were of particular significance. In this context, the Commissioner’s identification of locations in his order may well have reflected the conclusions he reached with respect to that evidence in the context of s.484. I am not satisfied that the evidence establishes that this aspect of the Commissioner’s order in this is defective, and I think it likely that determination of this issue would involve reconsideration of fundamental elements of the matters in dispute. The change sought by the MUA is in this regard fundamental, and effectively requires reopening of the matter.
[31] I have then considered the extent to which s.603 may be applied so as to vary the Commissioner’s decision and order in relation to the Quarantine Inspector and location of meetings issues. In this respect I have applied the approach in Grabovsky. In that matter Ross J stated:
“[37] It is apparent from its terms and the legislative context that s.603 is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?
[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.
[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so.
….
[41] I am not persuaded that s.603(1) provides the requisite power to grant the relief sought. The Act establishes a process whereby a person aggrieved by a decision may appeal the decision, with the permission of the Commission (s.604). Appeals must be determined by a Full Bench (s.613). As a general proposition that where a particular procedure is designated to achieve something other procedures are impliedly excluded, as reflected in the maxim expressum facit cessare tacitum.”
(references removed)
[32] I have concluded that the variations sought by the MUA with respect to both the Quarantine Inspector and location of meetings issues would both require reconsideration of the evidence before the Commissioner. Given the precision with which the Commissioner described the employees in the OLF team who he was satisfied were waterside workers, I consider that the inclusion of the Quarantine Inspector would necessitate reconsideration of Mr Osman’s evidence and, in effect, the reopening of the matter. In relation to the meeting location matter, I am additionally inclined to the view that this would potentially necessitate a new argument about matters not fully canvassed in the original hearing. Consequently, I consider that s.603 does not provide the capacity for consideration of these latter two variations sought by the MUA.
[33] Notwithstanding that conclusion, even if I had been persuaded that s.603 provided that the power for the Commission to vary the Commissioner’s order in this regard, in these circumstances I consider that variations of the nature sought by the MUA have not been sustained on the arguments put to me. Whilst an Appeal Bench may find the Commissioner’s decision to be in error, there is enough of a linkage in that decision to his ultimate order such that variation of that order in relation to the Quarantine Inspector and location of meetings issues has the potential to profoundly change the intent of the decision.
[34] Whilst it is open to me to defer further consideration of the employing entity issue to be determined in the event that such an appeal proceeds, I consider that, to preserve the integrity of the Commissioner’s decision and order, a variation pursuant to s.602 of the FW Act should be made to paragraph 122 such that the reference to Toll Energy should be replaced to a reference to Toll Transport Pty Ltd. I propose a corresponding amendment of the order. The only impediment to such a variation goes to a reservation that the employing entity, Toll Transport Pty Ltd should have the opportunity to challenge that variation. The Toll Energy submissions of 30 January 2017 state “A related company, Toll Transport Pty Limited (Toll Transport), is the employer of the employees who perform that work.”
[35] To this extent I have taken the Toll Energy submissions to incorporate the position of Toll Transport Pty Ld. Absent any advice to the contrary by 22 February 2017, the variation I have proposed will be made.
1 PR586898
2 [2016] FWC 7073
3 [2016] FWC 7073, paras [26] – [29]
4 [2016] FWC 7073, para [107]
5 [2016] FWC 7073, para [113]
6 Exhibit R4, Attachment AO-3
7 [2016] FWC 7073, paras [63], [83], [95], [98] and [121]
8 [2016] FWC 7073, paras [39], [41], [103] and [105]
9 see Toll submissions of 30 January 2017, paras 18-21
10 MUA submissions of 6 January 2017, para 17
11 MUA submissions of 6 January 2017, paras 22 – 25
12 [2016] FWC 7073, para [2]
13 MUA submissions in reply or 6 February 2017, para 24
14 PR937647
15 MUA submissions of 6 January 2017, para 35
16 [2011] FWAFB 7214, para [27]
17 [2015] FWC 5161
18 see, for example Exhibit R4, paras 33, 63, 81 and 85
19 see Exhibit R4, para 72
20 Exhibit R4, Attachment AO-3
21 Exhibit R4, pg 88
22 [2016] FWC 7073, para [122]
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