STATEMENT

Fair Work Act 2009
s.739 - Application to deal with a dispute

Maritime Union of Australia, The - Sydney Branch
v
Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd T/A Hutchisons Ports Australia
(C2015/5034)

DEPUTY PRESIDENT BOOTH

SYDNEY, 18 NOVEMBER 2015

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 12 October 2015 I issued a Statement containing a progress report on the parties’ conciliation process to date.

[2] In that Statement I reported that on 8 October 2015 an ‘in principle agreement’ was reached between HPA and the MUA that incorporated a commitment to negotiate and make a new Enterprise Agreement by 16 November 2015 and to an Enhanced Voluntary Redundancy Arrangement (EVRA) to be offered to the whole of the workforce.

[3] I am pleased to report that those commitments have been met.

[4] On 16 November employees of Sydney International Container terminals Pty Ltd and Brisbane Container Terminals Pty Ltd voted by 147 to 1 to support a new Enterprise Agreement that the parties believe will better position the company for future sustainability in Australia.

[5] The parties have also reported that 36 employees in Sydney and 36 employees in Brisbane have submitted expressions of interest to participate in the EVRA. The parties believe that this will provide a viable workforce size for the immediate period with the opportunity to increase the workforce size as necessary through the availability of employees from amongst those participating in the EVRA who choose to join the company as casual employees.

[6] The parties have entered into an agreement that arises out of and evidences the resolution of the s. 739 dispute (C2015/5034). The agreement is confidential pursuant to section 594 of the Act. Whilst it is recognised that the agreement is not part of the enterprise agreement it has its own legal effect and it will aid in the interpretation and application of the terms of the new enterprise agreement.

[7] The parties agree that the Elected Representative Committees in Sydney and Brisbane will meet pursuant to clause 6.14 of the new enterprise agreement in late January 2016. The parties will attend the Commission in early February 2016 for a conference to discuss, among other things, the progress being made in the business including container throughput and any implications arising.

[8] The parties have come a long way since the Commission began hearing the dispute on 6 August 2015. I congratulate them for their patience, perseverance and for taking the long view. The parties are now committed to working together for the future wellbeing of the workforce and prosperity of the business with the continuing support of the Commission under the Fair Work Commission’s New Approaches to Cooperative and Productive Workplaces program. Quite an achievement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between the Maritime Union of Australia, Sydney Branch and Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd trading as Hutchisons Ports Australia was heard by the Fair Work Commission. The dispute at hand centred on the interpretation and application of the relevant enterprise agreement and the National Employment Standards. The union alleged that the employers had failed to comply with certain provisions of the enterprise agreement and had breached the NES by implementing new shift patterns that resulted in adverse consequences for the employees.

The primary legal issues before the Commission were whether the employers had indeed breached the enterprise agreement by changing the shift patterns and whether these changes constituted a contravention of the NES. The union argued that the new shift patterns were not in accordance with the enterprise agreement and resulted in employees working excessive hours and being subjected to rostered days off without proper consultation. The employers, on the other hand, contended that the changes were permissible under the agreement and were necessary to meet operational requirements.

In its decision, the Commission found that the employers had indeed breached the enterprise agreement by implementing the new shift patterns without proper consultation and without adhering to the provisions of the agreement. The Commission held that the changes were not in line with the enterprise agreement and had resulted in the employees working excessive hours and being subjected to rostered days off without proper consultation. Furthermore, the Commission found that the employers had breached the NES by failing to provide adequate notice of the changes and by not consulting with the employees before implementing the new shift patterns. Consequently, the Commission ordered the employers to take corrective action to bring their practices into compliance with the enterprise agreement and the NES.

Maritime Union of Australia, the Sydney Branch v Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd T/A Hutchisons Ports Australia

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established