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

[2017] FWC 2359

[2017] FWC 2359

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 Ltd
(C2017/2188)

DEPUTY PRESIDENT SAMS SYDNEY, 28 APRIL 2017

Alleged dispute under the Patricks Terminals Enterprise Agreement 2016 – application for an interim order – jurisdiction – principles considered – arguable case made out – balance of convenience does not favour interim order being granted – application dismissed.

[1] This decision will determine an urgent application filed by The Maritime Union of Australia (the ‘Union’), which seeks an interim order in the following terms:

‘The Commission orders that, until further Order, Patrick Stevedores Holdings Pty Ltd be restrained from requiring employees working in the rail operation at the Port Botany Terminal to load empty containers from Qube container yard onto trains.’

[2] The application was filed on 26 April 2017 and listed for conference yesterday, 27 April 2017, and for hearing today, 28 April 2017. The matter will be finally determined in proceedings before Deputy President Booth next Wednesday, 3 May 2017. At the proceedings today, Mr A Slevin of Counsel appeared with Mr A Jacka for the Union, and Mr J Fernon of Senior Counsel appeared with Mr D Perry, Solicitor, for Patrick Stevedores Holdings Pty Ltd (‘Patrick’), with permission being granted, pursuant to s 596 of the Fair Work Act 2009 (the ‘Act’) for both parties to be legally represented.

[3] The dispute as described in the F10 application is said to concern Patrick directing employees to perform work differently to accepted practices, and a suspected breach of the Patricks Terminals Enterprise Agreement 2016 (the ‘Agreement’). At this point, it is relevant to set out the terms of the dispute resolution procedure in the Agreement (Schedule 1) and also cl 1.3 of Part B: Schedule 4 of the Agreement:

‘SCHEDULE 1 -DISPUTE RESOLUTION PROCEDURE

1. In the event of a dispute arising in the workplace in regard to the application of this Agreement, the National Employment Standards, or any matter pertaining to the employment relationship (including Company policy) the procedure to be followed to resolve the matter shall be as follows:

Step 1 workplace discussions

2. The parties shall attempt to resolve the matter at the workplace level within 7 days by:

2.1. An Employee, the Employee's representative (if requested), and their supervisor meeting and conferring on the matter; and

2.2. If the matter is not resolved the matter will be raised at senior levels of management, employee representatives and Union officials (as appropriate).

Step 2 National level discussions

3. If the matter cannot be resolved at workplace level, the matter may be referred by either party to National level for discussion between the parties.

Step 3 Fair Work Commission

4. If the matter cannot be resolved at National level, either party may refer the matter to the Fair Work Commission (FWC) or such other tribunal as may replace it. The FWC may deal with the dispute in 2 stages:

4.1. The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

4.2. If the FWC is unable to resolve the dispute at the first stage, and at the request of either party, the FWC may, subject to there being no industrial action occurring or having occurred in relation to the matter at hand:

(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.

4.3. If the FWC arbitrates the dispute:

(i) It may also use the powers that are available to it under the Act, and
(ii) An appeal may be made against the decision.

4.4. While the parties are trying to resolve a dispute in good faith using the procedures in this clause, the FWC has the power to issue an interim determination which may include an order requiring that, while the parties are trying to resolve the dispute using the procedures in this term, work will continue under the conditions and arrangements that existed before the dispute arose pending finalisation of the dispute (interim determination).

4.5. In deciding whether to make an interim determination, the FWC must have regard to all relevant circumstances, including, where relevant:

(i) the strength of the case (at final arbitration) of the party seeking the interim determination;
(ii) the respective consequences for each party of an interim determination being made, or not made, as the case may be;
(iii) the conduct of the parties in relation to the dispute, including, where relevant, the conduct of the parties in respect of clause 14 of this Agreement; and
(iv) any other matters that the Commission considers relevant.

4.6. Nothing in this sub-clause prevents either Party from seeking an interim order or stay pursuant to the FW Act.

4.7. An interim determination is binding on the parties.

5. Either Party may refer the dispute to FWC at any stage of the procedure if the procedure is not being followed or is otherwise inappropriate in the circumstances.

6. While the parties are trying to resolve the dispute using the procedures in this term:

6.1. Employees will continue to perform their work as they normally would unless there is a reasonable concern about imminent risk to their personal safety.

6.2. If an employee has stopped work due to an imminent risk to their health or safety, the employee will comply with a direction given by the Company to perform other available work on full pay at the same workplace, unless:

6.2.1 the work is not safe; or

6.2.2 applicable occupational health and safety legislation would not permit the work to be performed; or

6.2.3 there are other grounds upon which the direction is not reasonable.

7. The parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible.

…

PART B: SCHEDULE 4 – PORT BOTANY

…

1.3 Where a dispute arises in the workplace as a consequence of the Company directing employees to work different to accepted practice/s or a suspected breach of the Enterprise Agreement, work shall continue as existed prior to the dispute arising for a period of 72 hours, and a discussion has taken place between the MUA Branch Secretary and General Manager of Terminal Operations or their nominated representatives. Where the Company proceed with directing employee/s to carry out work contrary to the terms of this Agreement or accepted practice, work shall continue as existed prior to the dispute arising until the matter has been determined through the Dispute Resolution Procedure It is the intention of the Parties that clause 1.3 will not apply where there has been genuine consultation under the consultation and change clause.’

EVIDENCE

[4] Statement evidence was provided by

● Mr Peter Balzen, Grade 6 Permanent Operations employee whose skills relevantly include performing the role of Rail Coordinator;
● Mr Bruce Guy, Terminal Manager at Patrick’s Port Botany Terminal; and
● Mr Jarrod Graham, Automation and Landside Manager at Patrick’s Port Botany Terminal.

Given the interlocutory nature of this matter, none of the witnesses were required for cross-examination.

SUBMISSIONS

[5] Mr Slevin put the dispute in these terms. It is about ‘new work from a new source’ (the subleased Qube yard), with a number of subsets to the dispute about work practices such as, changes to rosters, hours of work and how long the new work is required to be performed (22 minutes or 2 hours). Mr Slevin contended that the Commission’s powers to determine this application derives from two sources, being the Act and the terms of the Agreement itself (as set out above). Mr Slevin argued that Patrick is constrained by the Agreement’s consultation clause as to ‘status quo’ in the dispute resolution procedure, and also in particular, cl 1.3 of Part B: Schedule 4 of the Agreement, from directing employees to perform work which they contend is new and different work.

[6] Mr Fernon described the Union’s case as ‘very weak’. He opposed the making of the interim order on both jurisdictional and merit grounds. As to jurisdiction, Mr Fernon relied on the evidence of Mr Guy as to the various incidents of industrial action taken by the employees around the issue, interim s 420 orders made by Deputy President Booth and orders made in the Federal Court on 24 April 2017 to demonstrate that the dispute resolution procedure could not be invoked by, or relied upon by the Union because industrial action was occurring or has occurred ‘in relation to the matter at hand’ (cl 4.2).

[7] Mr Fernon further put that the direction to employees to perform the work was no more than a direction to perform the employees’ usual work of loading and unloading containers. The source of the work does not make any difference to the work performed by Patrick employees. He added that while it might be a different source or might involve more work, it was not different work, and therefore cl 1.3 of Part B: Schedule 4 did not arise. Mr Fernon also said the Commission should dismiss this application as to its merits based on the principles to be applied when determining applications for interim orders.

[8] Given that the Commission does not have the benefit of the transcript, I do not set out the submissions of the parties in full, but have taken them and the relevant parts of the witnesses’ statements into account in determining this matter.

CONSIDERATION

[9] Earlier, I set out the terms of the relevant dispute resolution procedure at para [4] above. Sections 739(4) and (5) of the Act are also pertinent:

‘739 Disputes dealt with by the FWC

…

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.’

[10] Given the terms of the Agreement and ss 739(4) and (5) of the Act, I am satisfied that the Commission has no jurisdiction to determine this interim order application. This is so because the Act limits the power of the Commission to arbitrate a dispute to the express terms of the dispute resolution procedure, in this case, cl 4.2.

[11] There is no doubt that the industrial action subject to the s 418 application before and interim orders by Deputy President Booth and orders of the Federal Court are in relation to ‘the matter at hand’, being ‘bans on the loading or unloading of trucks arriving at the rail yard’. Mr Slevin’s attempt to draw a distinction between the s 418 proceedings and the two s 739 dispute notifications that are all before Deputy President Booth next week is, with respect, illusory and a clear case of form defeating substance. I do not regard them as being unrelated. Accordingly, given that those orders have been made and stand unless or until they are reconsidered or appealed, I have no intention of gainsaying those orders. Indeed, it may well be said that I am bound by the Federal Court order.

[12] However, should I be wrong about the jurisdictional question, I would dismiss this application for interim orders as to its merits by applying the principles set out by the High Court in ABC v O’Neill (2006) 227 CLR 57 at para [19]. For interim orders to be granted, the applicant bears the onus of satisfying the Commission that:

a) it has an arguable case;

b) it will suffer prejudice that cannot be remedied by damages if the interim order is not granted; and

c) the balance of convenience favours the orders sought.

[13] The required assessment by the Commission will necessarily be of a preliminary nature only, given:

a) the Commission, as presently constituted, has not been involved in the proceedings and detailed discussions between the parties and another Member of the Commission about the ‘matter at hand’ in this dispute;

b) the Commission has not had the benefit of hearing both parties’ full arguments as to the facts of the matter; and

c) the urgency of the matter being determined in short order.

[14] In my opinion, the Union has made out a case that there is a serious issue to be tried in respect to the interpretation and application to the present disputed circumstances of cl 1.3 of Part B: Schedule 4 of the Agreement. It also seems to me that a serious issue of jurisdiction has also arisen in respect to the prevention of a dispute proceeding through the dispute resolution procedure if industrial action is occurring or has occurred in relation to ‘the matter at hand’, as set out in cl 4.2 of the dispute resolution procedure. I apprehend these are matters to be fully agitated before Deputy President Booth.

[15] As to the balance of convenience, firstly, the Commission refers again to the proceedings resulting in interim orders of this Commission and the orders of the Federal Court as being factors telling against the interim order being made. Secondly, this matter and associated matters are to be heard to finality by Deputy President Booth next Wednesday. This is also a consideration telling against the interim order being made. Thirdly, with respect to the status quo provision within the Agreement’s dispute resolution procedure, given the dispute here involves a critical contest between the parties as to whether or not the work in question is different to accepted practices and this question can only be finally determined following a full hearing to determine that matter, there is no basis to favour one side or the other’s view of the status quo at this preliminary stage.

[16] There is one further matter relating to detriment to the employees in question by being directed to work by Patrick. While I acknowledge the fact that Patrick has foreshadowed docking four hours’ pay from a number of its employees for refusing to work as directed (which the Union strongly contests), the monetary detriment to employees does not yet appear to have materialised. In any event, if the Union is ultimately successful in challenging the basis of the docking of employees’ wages, presumably any docked pay will be recoverable and no detriment will flow.

[17] The balance of convenience favours the interim order being refused. For these reasons, I dismiss the application for an interim order.

DEPUTY PRESIDENT

Appearances:

Mr A Slevin of counsel with Mr A Jacka for The Maritime Union of Australia.

Mr J Fernon SC with Mr D Perry, solicitor, for Patrick Stevedores Holdings Pty Ltd.

Hearing details:

Sydney.

2017.

April 28.

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