Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Limited

[2013] FWC 6709

[2013] FWC 6709

FAIR WORK COMMISSION

DECISION

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

Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Limited
(C2012/5578)

DEPUTY PRESIDENT SAMS SYDNEY, 6 SEPTEMBER 2013

Dispute concerning the recruitment and selection for new positions - significant job losses - whether recruitment should be restricted to existing workforce - coverage of the Agreement - principles of interpretation - management roles - existing employees may apply - Company not obligated to consult or apply terms of the Agreement.

[1] Since October 2012, the Fair Work Commission (the ‘Commission’) has been chairing private conferences between Patrick Stevedores Holdings Pty Limited (‘Patrick’ or the ‘Company’) and the Maritime Union of Australia (the ‘Union’) arising from the decision by Asciano (Patrick’s parent company) on 18 July 2012 to invest $348 million in the expansion, redevelopment and automation of its operations at Port Botany. As part of the redevelopment project, a contract was entered into with Cargotec Corporation for the purchase of 44 autostrads (Automated Straddle Machines) between the end of 2013 and early 2014.

[2] The parties have accepted that the basis for these discussions is the above dispute notification filed on 9 October 2012. There have been numerous private conferences with the parties, both jointly and separately. The conferences have been free flowing, informal and, at times, by general agreement, have strayed from the main topics of discussion concerning the Port Botany development. In addition, there have been exchanges of documents and proposals reflective of how each party views the final labour model for Port Botany when its existing straddle operations are replaced by the fully automated autostrads in 2014.

[3] There is no disputing that this change and other associated changes will result in significant job losses at Port Botany, although it is difficult to quantify at this point. I would wish to emphasise that, at this stage, there is no agreement between the parties as to the future labour model, or the selection of, and retraining processes for employees. Indeed, the Union maintains its fundamental objection to the automation of Port Botany per se.

[4] However, a discrete dispute has arisen concerning Patrick’s decision to advertise internally and externally for five new positions relevant to the operation of the autostrads, to be known as Production Managers. The Union has invoked the disputes procedure under the Patrick Terminals Enterprise Agreement 2012 [AE894673] (the ‘Agreement’), which, as will be seen below, permits the arbitration of disputes by the Commission:

‘(e) Where the dispute has not been resolved within 7 days of the issue giving rise to the dispute being raised despite the foregoing procedures being followed and subject to there being no industrial action occurring or having occurred in relation to the issue at hand, then subject to Clause 1.3 either party may refer the matter to FWA for arbitration if necessary in which case the decision will be accepted by the parties subject to any appeal rights.’

[5] The Union asks the Commission to determine the following question: Should the Company apply cl 9 of the Agreement to the recruitment of Production Managers? Cl 9 of the Agreement is set out as follows:

‘9. ENTERPRISE EMPLOYMENT

9.1 Sufficient full-time and PGE employees as determined by the Company will be employed and deployed to meet the majority of skill and operational requirements, providing they can be reasonably able to be gainfully and viably employed at all times without the incurrence by the Company of the cost of unrecovered idle time.

9.2 It is the intent to minimise or eliminate use of supplementary employees in all areas covered by this Agreement.

9.3 It is not the intent to employ supplementary employees in the terminals.

9.4 Subject to the Schedule 3 of this Agreement, and any other relevant provision of this Agreement, the Company may select and recruit, at its discretion, in accordance with Company Policies and Procedures, any person from within or outside the existing workforce/s to fill a vacancy. The Company shall advise and consult with the Union of any intended change to the size and composition of the workforce without altering its absolute discretion to make such changes following consultation.

9.5 Where an existing full time position becomes vacant, the Company shall, in normal circumstances, fill such vacancy within one month in accordance with sub-clauses 9.4 and 9.6 unless it deems such replacement unnecessary. In those latter circumstances, the Company shall provide employees and the Union with full disclosure of the reasons for non-replacement of existing positions.

9.6 The Company will apply demonstrably objective, competency based recruitment, promotion and agreed selection criteria (which may be varied at Port level by agreement) in recruitment and selection processes and procedures, and, where appropriate, in selection for training. Any vacant position shall firstly be advertised internally. Appointments shall be based upon skills, competencies, performance, experience and any other relevant criteria. Where appropriate, the Company may consult with appropriate senior operational staff in the selection process for internal vacancies.

9.7 The selection criteria for internal selection processes shall be as follows:

1. All vacancies (in all categories) will be advertised internally within each Terminal in the first instance.

2. Any unsuccessful candidate will have the ability to speak to his/her direct supervisor about any reasons for being unsuccessful.

9.7.1. PGE TO PERMANENT

• Months of service - 1 pt per month capped at 120



• •Fit for inherent requirements of job - yes continue - no out



• If Pre Injury Duties (PID) expected within 4 - 6 months hold vacancy pending PID



• Must have required skills



• Availability score 181 days



• Plus 10 points



• Discipline



• Counselling lose 5 points (This deduction will be for a formal counselling notice only)



• Lose 1 0 points written warning level



• Final warning within the last 12 months - no selection



• Shift Manager score



• Plus 20 points

All things being equal, where two employees have the same score the employee with the longest length of service will be appointed to the job.

9.7.2. PROMOTION IN GRADES

• Fit for inherent requirements of job - yes continue - no out



• If Pre Injury Duties(PID) expected within 4 - 6 months hold vacancy pending PID



• Must have required skills



• Discipline



• Counselling lose 5 points (This deduction will be for a formal counselling notice only)



• Lose 1 0 points written warning level



• Final warning within the last 12 months - no selection



• Number of months actively allocated to the position available for upgrade to:



• Weighting score

1. Actively allocated one point per month to a maximum of 25;

2. Shift Manager score 12

All things being equal, where two employees have the same score the employee with the longest length of service will be appointed to the job.’

[6] Also relevant to this dispute, as far as the Union is concerned, is cl 14 of the Agreement dealing with the obligations on the parties in respect to consultation and change. Cl 14 is as follows:

‘14. CONSULTATION AND CHANGE

14.1 The parties are committed to pursue all opportunities to adopt the world's best practices through modern technology and continuous improvement to all aspects of Company operations.

14.2 The Company having made a decision that it intends to proceed with any significant change shall advise the employees in the first instance and the Union of the nature of the change, the reason for it, the timing of it, and any other relevant information. The Company shall consider any views or advice from the Union or employees in relation to the proposed change. However, this consultation shall not give cause for any delay to the implementation of the change nor shall there be any obligation on the Company to obtain the Agreement of the Union or employees to change. It is agreed between the Parties that after the above notification and discussion has taken place that the Company, after careful consideration of the views of employees, may implement change with twenty one days notice.

14.3 Without limiting the generality thereof, significant change includes redundancy, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

14.4 Where, subject to the provisions of this clause, the Company exercises its rights to implement significant change in the workplace and employees disagree with that decision and implementation of the change, subject to there being no stoppage of work or rejection of implementation of the change, the employees or the Union, where requested by the employees, may refer the matter in dispute to the FWA in accordance with the Dispute Resolution Procedure set out in Schedule 1 of this Agreement.’

[7] Cl 2.1 is also relevant and is expressed as follows:

‘2. PARTIES BOUND

2.1 This Agreement shall bind Patrick Stevedores Holdings Pty Ltd ("Patrick" or "the Company") and its relevant employees engaged in stevedoring operations as stevedoring employees in an Award classification (Grade 1 to Grade 6) and cover the Maritime Union of Australia ("the MUA" or "the Union").’

[8] Patrick’s position is that it had advised the Union of its decision to advertise for the Production Manager positions as a matter of courtesy only. As the new positions are considered management positions, they are not covered by the terms of the Agreement. There was no obligation to consult with the Union as to the application of cl 14 of the Agreement, let alone comply with the selection procedures outlined in cl 9 of the Agreement. It was said that as a matter of both jurisdiction and merit, there can be no dispute for the Commission to resolve by way of arbitration. Simply, Patrick contends the Agreement does not and cannot have any application to the recruitment of Production Managers at Port Botany.

[9] The dispute proceeded by way of urgent hearing on 30 August 2013. The parties only had one week to prepare and file their evidence and an outline of submissions. Mr A Slevin of Counsel appeared for the Union with Mr A Jacka and Mr Y Shariff with Mr D Perry, Solicitor and Mr A Lambert, Solcitor, appeared for Patrick. Both Counsel were granted permission to appear pursuant to s 596 of the Act, the Commission accepting the submission that the dispute raised issues going to the jurisdiction of the Commission and the correct interpretation of the Agreement.

Positions of the parties

For the Union

[10] Mr Slevin relied on the filed evidence of:

• Mr Matthew Freestone (Team Leader, Chairman of the Site Work Committee);
• Mr Simon Euers (former employee of Patrick, now employed by Hutchison Ports); and
• Mr Mick Doleman (Deputy National Secretary of the Union).

[11] It was Mr Freestone’s evidence that, to the best of his knowledge, the recruitment of Production Managers to operate the autostrads had never been discussed with the Site Committee. Mr Freestone said the usual recruitment process at the Port is set out in cl 9 of the Agreement. It involves the following steps:

a.	Vacancies are advertised internally;
b.	Employees submit expressions of interest;
c.	Selection criteria is applied utilising the scoring process as per clause 9 of the Agreement;
d.	The appointment of the employees is notified through a list placed on noticeboards in the workplace;
e.	The grievance procedure is applied if any employees wish to contest the appointments;
f.	The grievance process followed is as per Schedule 3 of the Agreement;
g.	Once the grievance is resolved the position is announced.

[12] Mr Freestone claimed that the above process had not been confined to positions covered by the Agreement. These positions have included:

• Shift Manager;
• Yard Manager;
• Rail Co-ordinator; and
• Rail Mounted Gantry (RMG) Teleoperator.

[13] In cross examination, Mr Freestone conceded that cl 9 had only applied for vacancies in respect of existing positions. Mr Freestone was unaware of the Production Manager’s role at the Brisbane port (Fisherman Islands) or how the position was recruited. Mr Freestone agreed that a meeting of the ERC on 21 August 2013 had discussed the Production Manager role.

[14] Mr Euers described the process associated with the introduction of Rail Mounted Gantries (RMGs) at Port Botany in 2007. He described the RMGs as:

‘automated cranes designed to perform the exchange of containers in and out of the Patricks Port Botany terminal via rail and road (trucks). The cranes were completely unmanned and were operated by RCOS (a Remote Controlled Operating Station) where operators, inside an office, performed the final landing of the containers via cameras and joysticks. 90% of the operations of the cranes were completely automated and controlled by computer real time operating systems.’

[15] Mr Euers said that after discussions with the RMG implementation team, it was agreed that the Rail Coordinator would be responsible for the operation of RMGs and an agreed training procedure was developed.

[16] Mr Euers described the visit by the Commission, the Company and the Union to Brisbane terminal late last year. Brisbane is a fully automated straddle operation. After viewing the duties of the Production Manager and the Tower Clerk, Mr Euers believed that the systems were the same as for the RMGs at Port Botany. He also believed the Production Manager position description was very similar to the role of the Rail Co-ordinator overseeing the RMGs at Port Botany. He considered that employees at Port Botany could perform the duties of Production Manager and that their operational knowledge of Port Botany would be an advantage in performing the Production Manager’s role.

[17] In cross examination, Mr Euers said he had only observed the automated Brisbane operation for around half an hour and he could not say what the Port Botany operations might look like, as they are obviously not yet in place. Mr Euers was not aware if the Union had sought coverage for the Production Manager at Brisbane and was unaware that the positions in Brisbane had not been advertised internally.

[18] The bulk of Mr Doleman’s statement dealt with a chronology of events involving the negotiation for the Agreement, the communications between Patrick and the Union about the Port Botany redevelopment, associated Court proceedings and the Commission’s conciliation process. Much of his statement was ruled irrelevant to the issue before the Commission.

[19] Mr Doleman referred to the ongoing discussions between the Union and Patrick over the job losses at Port Botany. He and his members believed that the Production Manager positions should be recruited internally through cl 9 of the Agreement to mitigate the job losses flowing from the automation process. Cl 9 has been a feature of the Agreement since 2004.

[20] Mr Slevin tendered a letter from Ms Elizabeth Ferrier, Change Manager to the Union dated 9 August 2013 outlining Patrick’s position. It is annexed to this decision as Annexure 1.

[21] In oral submissions, Mr Slevin recalibrated the nature of the dispute by reference to cl 14 of the Agreement concerning Consultation and Change and, in particular, the identification of the words ‘changes in the composition, operation or size of the workforce’ and ‘promotion opportunities’ (cl 14.3). This was what the dispute was about and what followed was the Commission’s power to arbitrate disputes about such matters. Cl 9 is simply the remedy proposed by the Union in resolution of the dispute. It was not suggested that in a regulatory sense, the Commission should broaden the application of cl 9. It was a convenient way of applying an agreed and readymade recruitment process to the recruitment and selection of Production Managers.

[22] Mr Slevin argued that the Union did not accept that cl 9 applied only to supplementary employees. Mr Freestone’s evidence was that it had applied to other management positions. Mr Slevin also relied on the definition of ‘stevedoring operations’ in the Stevedoring Industry Award 1999. It was a broad definition as follows:

‘Stevedoring operations means:

(a) the loading or unloading of all types of cargo including containers, motor vehicles and bulk liquid or non-liquid cargoes into or from ships;

(b) the loading or unloading, into or from ships, of ships stores, coal or fuel oil (whether bunkers or not), passengers’ luggage or mail;

(c) the receival, delivery, storage, handling or preparation of all types of cargo including containers, motor vehicles and cargo in unit forms or other goods, for the purpose of loading or unloading such cargoes into or from ships, and including the monitoring, maintenance and repair of refrigerated containers and other equipment;

(d) the driving or operation of all mechanical appliances or equipment used in relation to the receival, delivery, storage or handling of all types of cargo (including the moving of rail trucks) or used in relation to the unloading or loading of all types of cargo from and onto ships including the operation of ships gear and all equipment on board a ship used in relation to loading and unloading;

(e) the haulage or trucking of all types of cargo or other goods from wharf sheds, wharf storage or stacking areas to the ship or from the ship to the wharf shed, storage or stacking area;

(f) clerical functions involved in the tallying, receival, delivery, sorting and stacking, storage, or other work connected with the loading or unloading of cargo into or from ships (whether in containers or not) or involved in the receival, delivery, packing, unpacking, loading, unloading or storage of containers in preparation for loading into ships or after their discharge from ships. In connection with the foregoing work it may include those engaged in manifesting, freighting, preparation of ship’s cargo disposition, timekeeping, labour allocation, roster preparation, preparation and distribution of payrolls, maintenance stores functions, computer operation, operation of other equipment used in connection with electronic data processing, or any other clerical work in or in connection with stevedoring operations or a wharf office on a wharf or on a ship;

(g) maintenance, construction and repair work where such work is performed in relation to stevedoring operations by maintenance tradespersons and maintenance tradespersons special class in relation to any vehicles, mechanical and/or electrical equipment, buildings, materials or facilities;

(h) watching, guarding and protection duties in relation to the operational activities and functions specified in this definition;

(i) the supervision, direction, checking and instruction of stevedoring employees;

(j) general functions and duties such as the lashing and unlashing of containers, working in a ships hold, driving of motor vehicles including buses, marshalling, general cleaning, cleaning and attendance to amenities areas and offices, mooring and unmooring of ships, cleaning and maintenance of containers, preparation and maintenance and repair of gear and equipment used in loading and unloading, packing and unpacking of containers, pallets or flats and the sorting, stacking, preparing, or otherwise handling of loose goods and cargo, preparation and cleaning of ships’ holds, removal or replacement of beams or hatches, plugging and unplugging of refrigerated containers, preparatory or closing work in relation to the loading or unloading of ships, the handling of dunnage or ballast, general inspection of vehicles and buildings, general duties in connection with the loading and unloading of ships and the provision of first aid.

(k) work of an employee required to plan, control, co-ordinate and integrate stevedoring operations in connection with vessels, and/or cargoes allocated to the employee by the employer, from time to time, and the work of other stevedoring employees in relation thereto, and to compile records, reports and information in connection therewith, but excluding the work of persons employed as wharf managers, assistant managers, and outside managers;

NOTE: The inclusion of the words “but excluding the work of persons employed as wharf managers, assistant managers and outside managers” is subject to the outcome of Commission proceedings in respect to stevedoring employee grade 8 in clause 10 of this award;

where any of the foregoing operations, functions or activities are carried out or performed by a stevedoring employee(s) as defined.’

He compared this definition to the Production Manager’s job description and submitted that it was clear the role was associated with ‘stevedoring operations’.

[23] Mr Slevin also relied on Mr Euers’ evidence that the recruitment and selection of persons related to the RMG automation had been through an internal promotion process. Past practice demonstrated that cl 9 had been used for promotional opportunities to management roles.

[24] Mr Slevin disagreed that the new roles were not covered by the Agreement because they were promotional opportunities comprehended by the significant change clause (cl 14.3). He said that any vacant position should be first advertised internally, rather than opening it up to both internal and external applicants. Such an approach was envisaged by the history of the TCR provisions where there is a requirement to consult in order to minimise job losses. The Union had always contemplated agreed recruitment and selection procedures for new employees arising from the automation of the Port and had, from the outset of this dispute (12 August 2012), put Patrick on notice that that was what it intended.

[25] Mr Slevin added that the terms of the Agreement contemplated obligations in relation to work outside Grades 1-6 in the Award (clauses 14 and 15).

For Patrick

[26] Mr Shariff called Ms Ferrier to give evidence. He tendered the job description for the Production Managers through her testimony. Ms Ferrier agreed that the positions have been advertised internally and externally. She described the position as a management role, similar to a Terminal Manager, Shift Manager, Operational Manager and other functional management roles (HR, safety, finance). The persons will not be employed or paid under the Agreement.

[27] Ms Ferrier believed that the Union had never complained about the recruitment of other management positions. Cl 9 had never applied to such positions and the Union had never sought to have it apply. Ms Ferrier deposed that the Brisbane Production Managers are not covered by the Agreement and there was no complaint to her knowledge, about the recruitment, the non-application of cl 9, the mode of payment or coverage for those positions, which have existed since 2007. The Production Managers are employed under a specific contract of employment. This applies to all management positions. Ms Ferrier accepted that when automation was introduced at Fisherman Islands, there were no simultaneous retrenchments.

[28] Mr Shariff welcomed Mr Slevin having finally articulated what the dispute was about. However, his client had prepared its case on the question of whether cl 9 shold be applied to the recruitment of Production Managers. Now the Union’s position had shifted, it placed Patrick in a difficult position as to what different evidence it might have adduced had it known it was responding to a different case.

[29] Mr Shariff submitted that Patrick had agreed to do exactly what the Union sought - to provide the existing workforce with promotional opportunities. Ms Ferrier’s letter was very clear that existing employees were encouraged to apply and would have an advantage over external applicants. He asked how, on any view, could this be a denial of promotional opportunity? Mr Shariff said that what the Union really seeks is to foist on the Company a very particular selection procedure, negotiated for specific circumstances, to apply to a specific scenario - a PGE employee moving to a permanent position.

[30] Mr Shariff emphasised that Ms Ferrier, in her letter of 9 August 2013, had squarely raised Patrick’s view that the Production Manager’s role was not covered by the Agreement. Mr Slevin had not said anything about the role being covered by the Agreement. Mr Shariff referred to cl 2.1 of the Agreement to demonstrate it applied only to Grades 1-6. Cl 15.2 is a higher duties provision. It is not a clause applying in respect to permanent appointment to a higher grade.

[31] In any event, Mr Shariff referred to the words of cl 9.4, which gave Patrick an absolute discretion to fill any vacancy from within or outside the existing workforce. This was the agreed position of the parties. Mr Shariff stressed that these were not vacancies, but new positions.

[32] Mr Shariff reiterated his concerns as to the jurisdiction of the Commission to determine this dispute. He drew attention to the fact that the Union’s case has changed to reliance on cl 14 of the Agreement. Yet, nowhere in the Union’s letter to the Commission seeking to have this matter arbitrated is there any reference to cl 14. The situation remained unsatisfactory to the extent that Patrick has been deprived of an opportunity to address the cl 14 issue through its own evidence.

[33] However, Mr Shariff said that Patrick did not want to stand in the way of the dispute being determined. He reaffirmed that there had been no denial of promotion opportunities. There are five jobs which have been advertised and internal applicants are encouraged to apply. They would be given due consideration and experience at Port Botany would be an advantage. What the Union wanted was to have ‘first dibs’ over the vacancies. This raised the question of managerial prerogative. Patrick was entitled, where a new position was created, that was not covered by the Agreement, to exercise its discretion to implement the appropriate selection criteria.

CONSIDERATION

[34] Despite Mr Slevin’s submission on permission to appear, this dispute is not complex, difficult or ambiguous. It is not ‘rocket science’ and does not involve difficult or complicated principles of agreement interpretation. In short, it is straightforward and the result, I think, will hardly be surprising.

[35] Firstly, I deal with the jurisdictional concerns raised by Mr Shariff. I appreciate that the Union’s position shifted during the course of the proceedings. Mr Shariff complained that this shift had prejudiced Patrick’s capacity to properly address the case it had to meet. He has a point. However, I think Mr Shariff’s problems with the jurisdictional foundation of this dispute are more illusory, than real.

[36] In my view, there can be no doubt what this dispute is about. Patrick has not contended otherwise. It seems to me that while the initial question posed by the Union might have been neater or more sharply focused, the question to be determined could have been framed in a myriad of ways. A few examples serve to demonstrate the point:

• Does the Company have the right to determine the process for the selection and recruitment of Production Managers?;
• Is Ms Ferrier’s letter to the Union, dated 9 August 2013 consistent with the Company’s obligations under the Consultation and Change clause in the Agreement?;
• Should resort be had to clause 9 for the purpose of recruiting and selecting the new Production Managers?; or
• Should the recruitment for the positions of Production Manager be limited to internal candidates only?

[37] That said, the original dispute notification, filed on 9 October 2012, under the heading ‘What is the dispute about?’ identified that one of the issues was:

‘4.8	On 3 September 2012, Asciano announced that 44 automated straddle carriers had been ordered as part of the redevelopment of the Terminal.
4.9	In correspondence dated 4 September 2012, the director of the respondent confirmed that the company had agreed to purchase 44 automated straddles for the Terminal.
4.10	The applicant contends that the respondent has not correctly applied clause 14.2 of the agreement because by agreeing to purchase 44 automated straddles it has implemented significant change:
a.	Without providing all relevant information about the introduction of automation; and/or
b.	Without considering all of the views and advice of the applicant and the stevedoring employees; and/or
c.	Without giving 21 days notice to the applicant or the stevedoring employees of the implementation of the change.’

[38] In my opinion, the reference in the original notification above is entirely consistent with both parties’ understanding of what this dispute is about. It seems an unassailable proposition that the determination of this dispute is encompassed within the framework of the original dispute notification. Accordingly, no jurisdictional grounds exist which would bar the Commission from determining the matter, pursuant to the dispute settlement procedure under the Agreement. I note that Mr Shariff criticised the Union’s letter to the Commission initiating these proceedings, in that it made no reference to cl 14 at all. As will be self-evident, the original dispute notification at para 4.10 (above) expressly makes reference to the Union’s allegation that cl 14 had not been complied with.

[39] As I apprehend the evidence, the only difference the Union could point to between the Production Managers at Fisherman Islands and Port Botany is that the introduction of the autostrads at Fisherman Islands was not in an environment of the redundancy of a significant number of employees. In one sense, such a distinction is irrelevant to the determination of this dispute. This is so because the Union’s case hinged primarily on its view that the recruitment of Production Managers should be restricted to internal applicants only and by means of an established selection process in the Agreement (cl 9). It was said that this would ameliorate the impact of the redundancies proposed at Port Botany.

[40] On its face, the Union’s case does not appear to be unreasonable or devoid of merit. However, it must be seen in the context of a number of countervailing factors; including, not least of all, the experience of the introduction of the role at Fisherman Islands. Coincidently, I had the benefit of visiting Fisherman Islands and observing the work of the Production Managers for the same amount of time as Mr Euers. I shall come back to this shortly. I address the Union’s contentions as follows.

[41] Firstly, it is highly likely that there are existing employees at Port Botany with the necessary skills, experience, expertise and interest to undertake the role of a Project Manager or are capable of being trained up to the position. Indeed, unlike Brisbane, Patrick has positively encouraged internal applications and have recognised that experience with Port Botany’s processes and procedures will be a distinct advantage over external candidates. I agree with this observation.

[42] In my view, what Patrick has done in encouraging internal applications, is to recognise and agree with the Union’s view that the redundancies should be ameliorated by whatever options are available. It seems to me that this is precisely what Patrick is doing. It is consistent with its obligations under general industrial principles dealing with significant workplace change. Of course, that does not mean there might be arguments about an individual’s capacity or skills necessary for the position. There are existing means of addressing such arguments, if the occasion arises.

[43] Secondly, it seems to me that the recruitment for five new positions is not going to dramatically impact on the large number of job losses which seem inevitable at this point - even on the Union’s proposed labour model. The Union estimates that Patrick’s model will result in job losses of over 200.

[44] Thirdly and most importantly, the Port Botany Production Manager’s role is, in my opinion, directly analogous to the same role at Fisherman Islands, where the following evidence disclosed:

(a)	the role was first introduced in 2007;
(b)	there was no suggestion at the time, or subsequently, that the position was not a management role;
(c)	the Union has not sought to agitate a claim for either coverage of the role or its inclusion under the enterprise agreement;
(d)	there has been no position put that the persons engaged as Production Managers should not be covered by individual contracts of employment;
(e)	there was no evidence to suggest that the role was covered by an existing classification under the Agreement. I note the salary applicable to the role is above the highest Level 6 rate under the Agreement; and
(f)	there was no dispute as to the recruitment process of Production Managers at the time, or subsequently, and unlike here, the advertising for the positions excluded internal applicants, seemingly without demur from the Union.

[45] In my assessment, the resemblance of the role to the Production Managers at Fisherman Islands is persuasive evidence telling against the Union’s arguments. However, even putting the Fisherman Islands experience to one side, I have no doubt that the Production Manager’s role at Port Botany is a management position, not contemplated by coverage under the Agreement. Once that finding is made, it seems to me that the Union’s case is doomed. It follows that:

(a)	the consultation clause (cl 14) on significant change is not applicable; and
(b)	Cl 9 is similarly is not applicable.

[46] Nevertheless, even if the terms of the Agreement were applicable to Production Managers, I do not understand how cl 9 can be relevant to these new positions. It will be readily apparent that cl 9 is directed towards a particular group of employees (supplementary) and a specific set of circumstances. It is not permissible, as a matter of agreement interpretation, to isolate or ‘cherry pick’ particular words, phrases or subclauses and give them a meaning inconsistent with the overall intention and context of the clause; See: Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 (‘Amcor’) and Kucks v CSR Ltd (1996) 66 IR 182 (‘Kucks v CSR’).

[47] The fact that the processes under the clause may have been conveniently used to recruit and select other Management positions at Port Botany is not the point. It certainly is not determinative. The Union’s argument cannot derogate from the principles of agreement interpretation when the words are in contest. In addition, as I understand it, cl 9 has only been used for existing vacancies and not where new positions are being created. This seems to be perfectly consistent with the reference to filling ‘existing full time positions’ which become vacant as set out in cl 9.5.

[48] In any event, cl 9.4 can only be read as giving Patrick an absolute and unfettered discretion to select and recruit ‘any person from within or outside the existing workforce/s to fill a vacancy.’ Had cl 9 been relevant, this provision would be an almost insurmountable hurdle for the Union to overcome when viewed from the prism of management prerogative. Moreover, the clause constitutes an agreement between the parties.

[49] Finally, it is also of some significance to note the wording of cl 2.1 of the Agreement, setting out the parties bound. There can be little doubt that the express coverage of the Agreement is only to those stevedoring employees in Award classifications from Grades 1-6. The classification of Production Manager falls well outside this express coverage. I agree with Mr Shariff that cl 15 of the Agreement has nothing to do with extending coverage of the Agreement to managers. It is an unremarkable and conventional higher duties provision.

[50] For the aforementioned reasons, I find that Patrick is entitled to recruit and select persons for the positions of Production Managers at Port Botany by the process outlined in Ms Ferrier’s letter to the Union, dated 9 August 2013, Annexure A.

DEPUTY PRESIDENT

Appearances:

Mr A Slevin, Counsel with Mr A Jacka for the applicant

Mr Y Shariff, Counsel with Mr D Perry, Solicitor and Mr A Lambert, Solicitor for the respondent

Hearing details:

2013

Sydney:

30 August

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