Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Ltd
[2010] FWA 1808
•8 MARCH 2010
[2010] FWA 1808 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
v
Patrick Stevedores Holdings Pty Ltd
(C2009/10558)
Maritime industry | |
COMMISSIONER RAFFAELLI | SYDNEY, 8 MARCH 2010 |
Proposed introduction of day work.
[1] This decision concerns an application made by the Maritime Union of Australia (MUA) to have Fair Work Australia deal with a dispute in accordance with a dispute procedure under the Patrick Bulk and General Ports Collective Workplace Agreement 2008, Darwin (the Agreement). The other party to the dispute is Patrick Stevedores Holdings Pty Limited (Patrick).
[2] The dispute has arisen as a result of Patrick’s decision to create five new positions at its Darwin facility. Those positions are to be permanent, full-time and generally to operate as Monday to Friday day work.
[3] Until now, the employees of Patrick in Darwin have been engaged in one of three categories of employment. They are either full-time permanent employees, permanent guarantee employees (PGE’s) or supplementary employees. The dispute is not concerned with PGE’s or supplementary employees.
[4] According to the evidence of Mr Michael O’Leary, a consultant to Patrick, and who gave evidence:
“Permanent employees are shift workers that work in accordance with a set roster. PGE’s are effectively part-time employees who are guaranteed a certain minimum salary. Supplementary employees are effectively casual employees.”
[5] It was explained by Mr O’Leary that the operational needs at the Darwin facility has become increasingly focused on work that is carried out during day shifts from Monday to Friday. In the interests of efficiency, Patrick consider the increased employment on day work is desirable. The use of additional shiftworkers (at the composite or penalty-loaded rate) on such work is not cost-effective.
[6] Patrick’s proposal was to have such Monday to Friday day workers employed as full-time permanents with daily hours of between 8 to 12 hours per day. They would start work from 6.00 a.m. and cease no later than 8.00 p.m. each day. Their hours would average 35 hours per week and they would be entitled to five weeks annual leave.
[7] The MUA’s position has been that the only full-time permanent employment available under the Agreement is that of shift work and in accordance with a roster giving an average fourteen weeks work and two weeks off. The roster provides that employees are to regularly work on weekends and on shifts in the evening and at night as well as day shifts. Those rostered shifts, together with some other matters, are the basis for the payment of an annualised composite rate payable to all full-time permanent employees at Darwin.
[8] It seems clear that the only types of employment specifically provided for (by way of reference to rates of pay, rostering arrangements and other entitlements) in the Agreement are those referred to in [3] above. Indeed, it was not the case of Patrick that the Agreement provided for wages and conditions for the day workers it now desires to employ.
[9] An instrument of relevance is the Stevedoring Industry Award 1999 (the Award), now a transitional instrument. It provides at clause 17.2.1:
“An employer may introduce day work arrangements in accordance with this clause”.
Certain provisions then follow.
[10] The Award is relevant here because the Agreement provides at clause6 – Operation of Agreement and Relationship to the Award, as follows:
“6. OPERATION OF THE AGREEMENT AND RELATIIONSHIP TO THE AWARD
6.1 Subject to sub-clause 6.2, this agreement incorporates the terms of the:
a) the Stevedoring Industry Award 1999; and
b) the Stevedoring Long Service Leave Award
(collectively, the ‘Awards’) as in operation at 26 March 2006.
6.2 This Agreement does not intend to include any terms of the Awards which contain prohibited content (as defined in the Act). Any terms of the Awards which contain prohibited content are expressly excluded from this Agreement to the extent of the prohibited content. Specifically, the following clauses of the Stevedoring Industry Award 1999 are not included in the agreement to the extent that they contain prohibited content:
Clauses: 8.5.2, 15, 22.6.5
6.3 In the event of any inconsistency between any terms of the Awards (as incorporated into this Agreement) and an express provision set out in this Agreement, the express provision in this Agreement shall prevail to the extent of any such inconsistency
…”
[11] It was Patrick’s position that the day work provisions of the Award (clause 17.2.1) were incorporated into the Agreement and could be availed of by this employer. Furthermore, clause 6.3 did not inhibit this, as there was no inconsistency between the provisions of the Award and any express provision in the Agreement.
[12] Nowhere in the Agreement was day work prohibited. As well, provisions going to day work and consistent with clause 17.2 of the Award could operate without affecting the operation of the other three categories of employment provided for in the Agreement.
Conclusion
[13] There is no doubt that the Agreement only refers to and provides conditions and wages for the three categories of employment, full-time, PGE and supplementary. The Agreement makes provision for no other type of employee.
[14] Patrick referred to Schedule 1 – Avoidance of Dispute Procedure and item 14 which set out the matters on which the Commission was given power to arbitrate. These matters included at item 14(q) as follows:
“type of employment, such as full-time employment, casual employment, regular part-time employment and shift work.”
Patrick considered that those terms made it clear that full-time employment and shift work were not the same thing. One could have full-time employment that was not related to working shifts (i.e. day work).
[15] I decline to draw any such inference. Firstly, what is referred to in a dispute procedure cannot automatically determine what is provided elsewhere in an Agreement. After all the matters listed in item 14 include “rates of pay for juniors, trainees and rates of pay for employees under the supported wage system” (item 14(b)) even though those rates are not provided in the Agreement. Secondly, if we focus on item 14(q) one readily sees that “casual employment” is referred to. Although this is a well known industrial term, it is not one found in the Agreement. In my view, the items in item 14 are a broad series of industrial concepts over which the Commission is given arbitration powers. They are not to be read as a series of matters that are specifically provided for in the Agreement or as tools for interpreting other clauses in the Agreement.
[16] It is the proposal of Patrick to employ these day-workers on a full-time permanent basis and to which annual salaries will apply (see the evidence of Mr O’Leary (Exhibit Patrick 1) and particularly clause 16(a) ).
[17] However, clause 18.12 provides:
“18.12 Unless otherwise agreed in Part C of this agreement each full time salaried employee will be paid one-twenty sixth 1/26th of the annual salary each fortnight less any deduction of unpaid absences for which there is not entitlement for payment plus any additional overtime hours worked in excess of the required annual worked hours”
and clause 19.1 provides:
“19.1 Unless otherwise agreed in Part C of this Agreement each full time employee will be paid one-twenty sixth of the annual salary each fortnight less any deduction of unpaid absences for which there is no entitlement for payment, plus any additional overtime hours worked in excess of the required rostered hours, together with any bonus payment achieved in the preceding fortnight”
and in Part C, clause 1 provides pay rates for permanent employees.
[18] At the very least, any full time employee must be paid one-twenty sixth of the annual salary set out in Part C, clause 1 each fortnight.
[19] Thus, I find that even if Patrick was entitled to engage permanent day workers (a matter I need not decide) they would need to comply with the provisions of clauses 18.12 and 19.1 and Part C- Pay Rates and pay the annual salary rates set out for permanents.
[20] As it is clear that Patrick is not proposing to engage persons on that basis, I consider that Patrick should now cease and desist form creating and filling such positions, and I recommend accordingly.
[21] I made the observation, during proceedings, that the greater use of PGE might be a means of dealing with the increased incidence of day work. I note that clause 17.1 gives Patrick certain rights in that regard.
[22] Finally, it is not clear to me what order I should make. If it is necessary that I make an order, I may need to hear further from the parties.
COMMISSIONER
Appearances:
A. Slevin of counsel with E. Maiden, solicitor for the Maritime Union of Australia.
C. Gardner, solicitor with M.O’Leary for Patrick Stevedores Holdings Pty Ltd
Hearing details:
2009
Sydney:
October 27;
November 20.
2010
February 23.
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