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

[2014] FWC 3615

[2014] FWC 3615

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Ltd
(C2014/3370)

Stevedoring industry
COMMISSIONER CRIBB	MELBOURNE, 11 JUNE 2014

Alleged dispute concerning the respondent’s intention to implement significant change including a reduction in workforce numbers.

[1] This is the fourth and final Reasons for Decision in respect of a cluster of disputes notified by the Maritime Union of Australia (the union, MUA) between itself and Patrick Stevedores Holdings Pty Ltd (Patrick, the company) regarding the closure of Webb Dock. The decision deals with the final step in the process (arbitration of the union’s application) following determination of various jurisdictional objections by the company and an application for interim orders by the union. In terms of the disputes to be arbitrated, the union withdrew 1 dispute C2013/7789 on 24 April 2014. Therefore, this decision concerns one dispute notification only - C2014/3370.2

[2] The hearing of this dispute took place on Monday 28 April 2014 and Tuesday 29 April 2014. As a quick decision was requested by the parties, the following day, 30 April 2014, the Commission issued a brief written decision 3 regarding the orders sought by the union.

[3] Consistent with the previous hearings, the issues that were dealt with on 28 and 29 April 2014 were intertwined and a combination of jurisdictional points and an arbitration. At the commencement of the hearing, Mr Follett, on behalf of the company, made submissions that:

1. The orders sought by the MUA are not capable of being made by the Commission because of the nature of the arbitral function being performed ie. it is not a merit arbitration.

2. In the alternative, if it were a merit arbitration, the Commission could not make the orders sought by the union because of section 739(5) of the Fair Work Act 2009 (the Act).

3. If the Commission is against the company on points 1. and 2., assuming it were a merit application and the Commission is entitled to make the orders, the manner in which the Commission should approach the question from a merit perspective is consistent with the XPT principles. These were said to be that the Commission does not interfere unless and until what is proposed by the employer is unfair or unreasonable. 4

[4] From the union’s perspective, the hearing was said to be a merit arbitration on three issues. These were defined as the labour model issue (the union has set out a minimum staffing level that the Commission should impose); the question of who is to conduct the performance assessments (the forepersons rather than the Shift Managers) and what the weighting of the various selection criteria should be.

[5] In terms of the jurisdictional issues raised by the company, Mr Fetter argued that, if the Commission is satisfied that it can make the orders the union is seeking, the Commission will have to decide whether, based on the merits of the case, to make the orders. 5

ORDERS SOUGHT BY THE UNION

1. Labour model

[6] The union is seeking the following order:

“1. That the respondent not dismiss any employees on ground of redundancy such that its workforce falls below the following levels:

(a) Full-time employees: 25

(b) PGE employees: 32

(c) A supplementary employees: 42

(d) B supplementary employees: 40.”

(a) Witness evidence

Mr Hoy

[7] Mr Hoy has been an employee of the company at Webb Dock for 7 years. He is also the job delegate for the MUA at Webb Dock. 6

[8] It was Mr Hoy’s evidence:

• It was confirmed that the voluntary redundancies and transfers had been proceeded with by the company. 7



• As at 18 April 2014, when the union met with the company, the number of employees was 27 permanents and 32 PGE’s. The number of PGE’s is now 32 rather than 40. The Committee has not wanted anyone to be made compulsorily redundant or moved to maintain those numbers. 8 The union is also trying to retain as many permanents and PGE’s as possible.9



• In terms of recent car ship movements, these were said to include - 17 April (dayshift) – Divine Ace; 19 April (night shift and dayshift) - Heritage Leader; 23 April (evening shift) - Prestige Ace; 24 April (day and evening shift) - Perseus Leader; 26 April (dayshift) - Transfuture; 26 April (evening) - Modern Peak; 28 April (evening) - Hoegh America. 10 If there are 1000 or more cars being discharged, up to 58 employees will be required.11 It was acknowledged that these ships were listed on the forward shipping schedules but it was stated that the actual arrival date of some of the ships was different to the scheduled arrival time.12



• Originally, one day shift only had been allocated to the Heritage Leader but it ended up being two shifts (night shift and day shift). This type of situation would not happen very often. 13



• He has worked sporadically at Geelong; at Westernport (frequently in the past) and one day at East Swanson Dock (ESD). 14 He has no direct knowledge of the composition of the workforce at these ports.15



• It was confirmed that the number of employees at the commencement of the Agreement, in December 2012, was 45 full-timers; 53 part-timers and 66 A Supplementaries. These numbers had varied, particularly A Supplementaries, due to natural attrition. A Supplementaries had reduced from 66 to about 45 in September 2013. 16



• The number of B Supplementaries had increased from 60 to 80 in October/November 2013 as 20 had probably left. It was common for B Supplementaries to leave due to insufficient work. Webb Dock has been supplementing the labour from ESD to try and retain Webb Dock’s current numbers. 17



• The labour model put forward by the union in March 2014 was for 25 permanents, 40 PGE’s, 45 A Supplementaries and 40 B Supplementaries. 18



• In terms of the costings of the union’s labour model undertaken by Mr Hoy, 19 it was explained that it was based on information provided by the company. The assumptions, on which the union’s model is predicated, come from the information provided by the company together with the contents of the Patrick Bulk and General Melbourne Enterprise Agreement 2012 (the Agreement) plus commonsense.20



• He was not aware that the company had amended the cost of its labour model from $9.478M to $9.172M. 21 The union’s labour model was said to cost $9.430M.22



• In terms of Mr Tobin’s costing of the union’s labour model ($10.3M), this was thought to be based on the union labour model provided to the company in March 2014. This labour model was said to be 25 permanents, 45 PGE’s, 45 A Supplementaries and 45 B Supplementaries. 23



• The current union labour model is different to the one that Mr Tobin costed and the union has not had the opportunity to present the revised one to him. It was said that the numbers may be identical but that that distribution of hours (those shifts being worked by each category) might be different. 24 It was agreed that the union’s model, based on 40 PGE’s, resulted in 124,000 hours. If eight PGE’s are taken out, only 115,000 hours are provided for albeit at a cheaper total cost.25



• It was said that, perhaps, the union labour model is a little more restrictive employing employees compared with Supplementary employees as Supplementary employees are the easiest labour to allocate and are more flexible. However, PGE’s were said to be easily accessible as well. 26



• PCC (car vessel) work (to be done at Webb Dock West) is the most unpredictable in terms of when and how it arises. 27 Delays can be caused by a Qube vessel, in front of a Patrick’s one, being stevedored first and unforeseen circumstances including weather, delays in the previous port etc.28 It has been possible (but highly unlikely) for multiple vessels to arrive on the one day. The number of employees required to stevedore a vessel is approximately 40 - 50 (up to 58).29 It was said to be physically possible to stevedore three car vessels in one day through a combination of Webb Dock West (proposed to increase from 1 to 3 berths) and Appleton Dock (where Patrick and Qube both operate).30 The company has indicated that probably 70% of the work will be done at Webb Dock West with 30% out of Appleton Dock (now a common user berth and very congested).31



• The proposed work going forward is predominantly PCC work with some of the break bulk and container cargo going to Geelong. 32



• The MUA labour model operates on the premise that full-time employees will not be required to work 1645 hours per year (the normal number of full-time hours) but 1480 hours. However, this would not attract the same rate of pay as currently. It was explained that the 185 days (185 x eight hours = 1480 hours per annum) in the union’s labour model is based on a reduction in the salary on a pro rata basis to retain those numbers. This was said to be the only way to make it workable. 33 Based on the company’s figures, there was also a difference for PGE’s.34 The MUA’s model is preferable and more appropriate.35



• There is work available at Geelong which Webb Dock employees could be sent down to perform. If Webb Dock employees go to Geelong they are not necessarily taking shifts that would have been available for Geelong employees. This is because there is an order of pick at Geelong before the work is supplemented by Webb Dock employees. 36



• There is a list of Webb Dock volunteers provided to the company for inter-port transfers to Geelong. Geelong would need labour from Webb Dock when they hit a peak. Bulk and general cargo was said to be known for its peaks and troughs. 37



• The company advertised for about 20 casuals at Geelong approximately 4 weeks ago. New work had commenced at Geelong (Swire contract) with bulk and general cargo moving from Webb Dock to Geelong. 38 It was his understanding that the permanents were making their hours at Geelong. The extra work (Swire contract) has not been factored into the company’s labour model.39



• It was suggested that there will be growth in the work in the future and therefore more hours available that Mr Tobin has estimated, e.g. car imports. 40



• If Webb Dock employees want to work also at Geelong and Westernport, the company needs to obtain the employees’ consent. 41 It was agreed that the cost of the temporary transfers is borne by the company. The windmill work at Westernport has just commenced with the company having obtained a general stevedoring licence there.42



• A document - Anticipated Operations post WDE 43 was presented to the union by the company and reflects the company’s anticipated operations following the closure of Webb Dock East together with Mr Tobin’s costing of the company's labour model.44



• The document indicates that, between 1 January 2012 and 31 December 2012, there were 18.25 movements (PCC operations) per month. 45



• For each of the five shipping companies, it set out the number of shifts required and the average manning per shift resulting in a yearly total. The total number of hours required for all of the shipping companies were stated as 118,264. 46



• In terms of the proposed manning, the company’s labour model was said to be based on, for permanents, 14 employees x 193 day’s work resulting in a total of 2702 days. 47



• The union’s labour model assumes permanent employees will work 185 days per year which is eight days less than Patrick has budgeted for. It was also assumed that, through consultation, the hours and wages would be reduced by 10% to sustain the permanent numbers. The total cost for full-time employees would be $3.6M. 48



• In terms of PGE’s, the union’s model is based on 32 PGE’s x $68,299.00 (including on-costs) which comes to a total of $2.1 85M. 49 This means that the PGE figures in Mr Hoy’s statement had changed with a reduction in the number from 40 to 32 but with a slight increase in the cost per worker from $67,108.00 to $68,299.00. The net result was a lower total figure of $2,185,572.00 instead of $2,684,320.00.50



• The union’s figure for A Supplementaries of $2.329M (45 employees) has not changed. 51 However, the number of B Supplementaries has reduced from 45 to 40.52 This meant about a $500,000.00 reduction a year on the previous labour model numbers. The total cost had reduced from $9.43M to approximately $8.93M.53

Mr Tobin

[9] Mr Tobin is the Southern Regional Manager, Patrick Stevedores Holdings Pty Ltd.

[10] It was Mr Tobin’s evidence that:

• Prior to the recent changes, the work being performed at Webb Dock East was PCC container cargo and break bulk cargo operations (steel, timber, pulp et cetera). There are three berths. 54



• PCC vessels will be the main core business moving forward. There are no berths available in Melbourne for Patrick to lease so that it can stevedore general or break bulk cargoes. Projected revenue for this year had been $30.9M but, going forward, it will only be $13M. 55



• At Webb Dock West, Patrick holds a stevedoring licence which Qube also has and potentially another company. 56 A similar arrangement exists at Appleton Dock. (Transcript PN 2379)



• Container vessels required 6 - 8 shifts of about 10 people per shift depending on whether operating one or two cranes. Break bulk vessels required about 6 or 7 shifts of 8 - 10 people depending on the number of cranes. 57



• With PCC vessels, 35 - 50 people are needed and sometimes 55 for a loader with railway on board. 200/250 cars - 300 cars could be on a PCC vessel. 58



• Prior to the changes, there were 45 full-time, 53 PGE, 45 A Supplementary and about 60 B Supplementary employees. 59



• The changes to the vessels being stevedored means that knowing exactly when the vessel is going to arrive will be less certain and the quantum of labour on each shift will increase to up to 50 people and on three shifts per day - a peak of 150 people. 60



• With respect to the Forward Schedules, 61 which looks ahead two weeks, the arrival times of the vessels changes constantly due to inclement weather et cetera. The Forward Schedule dated 25 April 2014 shows seven PCC vessels over 16 days and the Forward Schedule dated 28 April 2014 shows five ships over 16 days. Currently, three ships are scheduled to arrive on 6 May 2014 which was said to be a real possibility.62



• The business model moving forward is based on 16 - 18 vessels per month (the number of vessels in 2012/2013). 63 Looking at the Forward Schedules, it was said that an average of 7 movements per 16 days was going to be representative of what would happen.64



• Based on customer figures, the volume of cars has been decreasing since 2009 and is expected to continue to decrease to 229,000 cars, based on customer's forecasts for next year. This had therefore been incorporated into the business’s budget for next year. The business had, together with their customers, looked at the forecast for car imports over the next 12 months. It was suggested that the downturn in car production in Australia will not occur until 2015/2016 so that this would not have a significant impact over the next 12 months. As well, given the quantity of cars in storage in Australia, there will be a decline in imports over the next 12 months, in Melbourne. Therefore, work will decline by 4.6% between this year and next year (240,000 cars this year and 229,000 cars next year). This is a significant decrease in business. 65



• In terms of the article which cites the possible future operator of Webb Dock West (MIRRAT) as saying that car imports into Webb Dock will increase, it was Mr Tobin's view that this was an inflated figure put out in an attempt to win the contract at Webb Dock West. 66



• In five years time, he assumed that there will be an increase in the level of car imports due to Australia’s population growing and Australian car production declining. 67



• Based on the projected 16 - 18 vessels per month, full-time employees would need to work on every vessel but would still struggle to meet their hours (1645 per year). 68



• In terms of the projected budget moving forward regarding the number and composition of employees, the company made the assumption that 150 people would need to be available at the peak periods totalling 118,000 hours for the year. These hours needed to be cost-effective and provide the business with flexibility moving forward. 69



• Patrick’s labour model, compared with the union’s, gives greater flexibility. If the number of permanents remains, there will be a significant number of down hours based on the number of hours the model shows that they are able to work. Supplementaries provide greater flexibility as they are available on a regular basis on call and are more freely available than full-timers. 70 Purely from a labour flexibility perspective, the best model for the company would not include full-time employees. However, the company is proposing to retain 15 full-timers.71



• Webb Dock West and Appleton Dock (common berth facilities), which are shared with Qube, are managed by a third party (AAT) who determines the stevedoring schedules for the two berths. 72 If a Qube vessel is given priority, Patrick’s work will be delayed. This has implications in terms of the cost, walk up starts etc. If the vessel is delayed into a weekend this would have significant ramifications for the business. This is due to full-time permanent employees not generally being available as, over a period of 8 weekends, they would have 4 weekends off.73



• The estimated cost of the company’s labour model had reduced to $9.172M from $9.478M due to computation errors in the first version. The revised model is based on 15 full-time, 24 PGE, 45A Supplementary and 60 B Supplementary employees. 74



• In terms of the union’s labour model which provides for 90 shifts for A Supplementaries and 30 shifts for B Supplementaries, it was said that these employees will not stay in the business. This view is based on the high turnover of Supplementary employees. 75



• It had been conveyed to him that, if a full-time employee works over 1480 hours, they would receive penalty payments. Further, the union’s model was said to anticipate that full-time employees would be paid the full Agreement rate for working 10% less hours. 76



• The work at Westernport was said to be the stevedoring of the five remaining windmills vessels only requiring 8 - 10 people, four shifts. It will end by about June/July 2014. 77



• If an employee works at Westernport or Geelong, the cost is borne by Webb Dock. Positions (permanent transfers) were offered at Geelong and two Webb Dock employees (out of 45) expressed an interest in doing so. No employees have taken up any of the positions as they do not want to work 12 hour shifts. 78



• The company is taking its obligation to try and minimise compulsory redundancies seriously and it has a genuine commitment to preserve permanent employment. The company’s labour model is the best model for the business moving into the future. The main reason for maintaining any of the full-time employees (15) is to retain a skill base in terms of leadership and qualities for the business going forward. The company is unable to keep the current 27 full-time employees. The attraction of casuals is that they give the business flexibility to man up in peak periods. They cost more on an hourly basis but are flexible. 79



• Full-time employees are not required to be loading/unloading every minute of their shifts (e.g. safety meetings etc). The company’s labour model has enough fat in it with the reduction of cargoes to account for the additional peripheral hours. 80



• The business is a whole new business model compared with what it was previously (two months ago). 81 The labour numbers set out in the Agreement were said to have been the commencement numbers at the commencement of the Agreement. As the numbers of A and B Supplementaries have diminished over time (through natural attrition), the company was not going to reduce the current numbers any further. The new Patrick labour model is very different to what the parties anticipated at the beginning of the Agreement.82

• Patrick Stevedores Holdings supplies the labour that is used at Webb Dock East and Webb Dock West and Appleton Dock. Geelong is a different entity. Mr Tobin confirmed that he is the manager responsible for the Southern Region which includes both Webb Dock and Geelong and that the business managers for both ports report to him. It was stated that, subject to employees giving consent to be transferred to Geelong, he still needed to get Geelong's permission for labour to be sent to Geelong from Webb Dock on a temporary basis (inter-port transfer). There had been issues in trying to get Geelong people to volunteer for inter-port transfers in that they will not volunteer. 83 Historically, it was explained that Geelong requested labour from Melbourne about every three or four weeks. The company had to continuously ask employees to volunteer as volunteers did not come freely.84 It was agreed that, within his region, if there was a call for additional labour and an employee has volunteered, then the company can transfer them.85



• In terms of the PGE hours at Geelong, it was indicated that Supplementaries, late last year/early this year, may have been doing approximately 1200 hours in a nine-month period. 86



• It was confirmed that Geelong had advertised, about two - three weeks ago, for 10 casual employees and that he had advised the union. Only two full-time employees had put in an expression of interest to permanently transfer to Geelong and the person who was going to take the Geelong position had pulled out. Since the voluntary redundancies had taken place, the company had not gone back to the pool of remaining employees and asked if they would consider transferring to Geelong. The reason for this was that the company had already asked employees twice about their expressions of interest. 87



• It was said that the company may lose the new work at Geelong (the Swire contract) in the future if the company did not perform. He did not cavil with the union's figure of 40,000 hours for the contract and said that it is one vessel every 16 days. The work involved unloading containers which was the work that Webb Dock employees had done until a couple of months ago. It was agreed that the Swire contract work was a constant stream of work which casuals are not appropriate for. 88



• He did not accept the proposition that, when making people redundant, the business needed to look beyond one financial year. This was because he doubted that, 12 months out, he would have to hire people as over the next two - three years, the port will be going through significant re-development. In two - three years, he might have to hire new people which involves the cost of advertising, training et cetera. Mr Tobin stated that he had taken into account, in developing the company’s labour model, that there will be little change to the business over the next two - three years. The cost of hiring people in the future has not been budgeted for. He did not envisage that, if over the next two - three years the business needed to hire people, they would need the skills of some of the current permanent employees. This was because it is a totally different model of business. It was agreed that, if Geelong needed to hire new employees in six months time, it may not have access to some of the people let go now. 89



• Patrick will probably be bidding for the stevedoring of the ships that will occasionally bring pilings into Webb Dock East for the redevelopment. He expected that Qube would also bid for that work. 90 It was explained that Qube are undercutting significantly Australia-wide and are tending to win contracts for this reason.91 It was confirmed that the company will be bidding for the oil and gas work in Bass Strait (a couple of vessels). Mr Tobin explained that it was finite work with a definite end - the end of the project. The company would also be bidding for other work at Westernport after the windmill work has finished.92



• In terms of the Forward Schedules, it was stated that this period is not a quiet time but one of the busiest periods as the Japanese car makers try and get in as many car vessels as they can (the end of their financial year). 93



• With respect to the company’s labour model and the need to access 150 or so persons for the peak periods, it was explained that having 39 permanents would result in the company needing to rely on casuals at times. 94



• It was agreed that stevedoring is inherently a fluctuating and unpredictable industry. It was accepted that 98 permanent employees had previously been able to be employed in such an industry - in the company’s previous business. However, it was stated that cars do not fluctuate, like bulk and general cargo, and are predicted to stagnate around 230,000 - 235,000 cars per annum. 95



• In terms of the company’s ability to predict future work, it was said that, to some degree, he could predict where cars are going. Over the next two - three years, there will be little or no bulk and general work in Melbourne for the company. The level of the division’s work was staying flat. Geelong had gone up but Whyalla and Adelaide have gone down. The combined Victorian operations has not increased. Revenue this year for Melbourne was predicted to be $39M and $18M for Geelong. Next year Melbourne is predicted to be $13.5M and $21M for Geelong. This was an increase of $3M for Geelong. 96



• With respect to the company’s costing of their labour model, 97 it was confirmed that what is being modelled is the labour required to load/unload particular ships (118, 264 hours). These hours include an administrative component but not the monthly safety meetings or quarterly consultative meetings. Mr Tobin said that it could be assumed that, in terms of the 18.25 ships per month, there are more than 118,264 hours of actual work needed. However, he said that there are not always going to be seven shifts per NYK vessel or always 45 people on NYK vessels et cetera. As there was no allowance for delays et cetera it was conceded that this was an assumption of the time required to unload the ships in a best case scenario.98



• This costing is a costing of a slightly different model to the one that Patrick has been seeking to implement (14 full-time, 24 PGE, 46 A Supplementary and 65 B Supplementary employees). The current model is 15 full-time, 24 PGE, 45 A Supplementary and 60 B Supplementary employees. 99 The estimated cost of the current model is $9.127M for the next year.100



• Another assumption is that a full-time employee, under the Agreement, works 206 days each year. It is also assumed that each employee would take their 13 days of sick leave resulting in 193 work days. 101 This results in about 124,000 hours which covers the projected 118,000 hours needed with a small overhang.102



• The full-time wage rate assumed ($113,403.00) includes the Agreement increases effective August 2014 and the rate of pay is the top range ie. a foreman’s rate rather than a general hand’s wage rate. It was argued that the majority of the general hands are close to the foreman’s level and that the majority across the different classifications is near the higher classification level. The average rate of pay for a full-time employee was said to not be significantly different to the figure in the table. With the addition of on-costs, the estimated annual cost of a full-time employee is $144,580.00. 103



• For PGE’s, the estimate in the model is 169 rostered days (about 75% of a full-timer’s shifts). This was said to give an indication of the number of days they need to be allocated to reach their guarantee. Pro rata sick leave days (9) have been deducted from the 169 days, resulting in an assumption of 160 working days per PGE employee. The hourly rate of $37.77 is an assumption and is pitched between grade 2 and grade 3. This rate is then loaded for penalties et cetera (62% is taken as the average penalty rate). The annual hours worked are estimated at 1240 hours x $47.90 = $59,390. The figure of 62% for penalty rates factors in all of the shifts worked by PGE’s over the fiscal year of 2012/2013. 104 It was not accepted that the basis for making this assumption was data for a different set of work ie. that an average of 62% in penalties no longer needed to be paid.105



• In terms of A Supplementary employees, the labour model costing was done based on 46 A Supplementaries. The company is not intending to change the current number of Supplementaries. The company’s “old” labour model costing shows 46 A Supplementaries and that is the same number in the company’s “new” labour model. 110 shifts had been factored in which reduced the amount of labour from 124,112 hours to 118,632 hours. The difference between the two costings was described as compressing the number of hours of work that the company was going to pay for so that there is a closer match between the hours required and the hours paid for. As well, it was stated that there is fat in the number of shifts that the NYK Loaders and the MOL vessels take to complete. 106



• The wage rate assumed for an A Supplementary employee is at a fairly low level and has been multiplied by 1.62 to give an hourly rate of $57.48. It was accepted that, on face value, a casual is at least $10 an hour more expensive than a PGE employee. The company is prepared to pay that differential in return for the flexibilities casuals give. 107



• It was agreed that, in the company’s labour model, the company is paying almost as much in total for a casual as a PGE but the casual is doing 20% less work. 108



• The current labour model is estimated to cost $9.128M for the next year (old model - $9.5M) which is more than what has been budgeted for ($8.25M). It was denied that this meant that the company is prepared to spend $9.128M on wages. However, it was stated that there are some cost initiatives that have to be introduced over the following 12 months to make savings in areas other than wages. The company has elected to absorb some of the extra costs to get this model through. The business has a remit from Asciano to attempt to try and make some profit but is not allowed to make a loss in this business. The cost reduction process is currently being implemented. 109



• The business was said to be currently losing half a million dollars a month. If the company achieves its labour model of $9.128 M, together with the other cost saving measures, the company will come close to a profit in 2014/2015. If the cost savings initiatives are not achieved this year, the business will not make a profit in 2014/2015. 110



• Even if the union’s labour model costs the same as the company’s, it was stated that it is not purely about cost (one component only). It is also about being able to have 150 - 160 people available at peak times. It was said to also be about getting 118,632 hours without excess overflows and idle time for permanent employees. 111 The union was said to have placed restrictions in the model on making arrangements to get additional labour when there is a spike in demand.112



• He believed that the Asciano group had received money from the Port of Melbourne in compensation for their forced exit from Webb Dock. Discussions had taken place within the management team in terms of compensation. He had not been told by his direct managers that he will be getting any of the money paid by the Port of Melbourne. It was indicated that he had not directly asked whether there was any money available from the compensation paid by the Port of Melbourne to absorb overruns on the budget. He assumes that it is a large amount of money that was paid to Asciano. Mr Tobin recounted that he had been told that there is no money available for compensation for redundancy or compensation full stop. He assumes that the money is going to Asciano. 113 It was stated that Mr Tobin did not know why he needed to ask for money. He regarded the compensation money as belonging to Asciano.114

Mr Meek

[11] Mr Meek is the Human Resources Manager, Southern Region.

[12] It was Mr Meek’s evidence that:

• Once the company’s preferred labour model was identified, the process for reducing the labour numbers started with a call for expressions of interest about a number of options. These included voluntary redundancy, relocation to Geelong or East Swanson Dock or another port and remaining at Webb Dock. If insufficient volunteers for redundancy and transfers were received, there would then be a selection process for compulsory redundancies. The compulsory redundancies would only occur after the transfers and voluntary redundancies. It was confirmed that a number of employees had accepted voluntary redundancy and transfers. 115



• In terms of Geelong, five positions (one full-time and four PGE) were available for permanent transfer without the need for a reciprocal redundancy arrangement. Six PGE’s indicated they were interested and all were offered an interview. Only 2 of the 6 employees took up the option of an interview and were offered a position. However, both have since rejected the offer. One other PGE has been able to secure a position at Geelong through a reciprocal swap (redundancy) arrangement. Five PGE’s have therefore gone down to Geelong. 116



• The offer of a permanent transfer to Geelong has not been repeated since the voluntary redundancies took place. Mr Meek was not aware of anyone left in the pool who might prefer a transfer to Geelong rather than compulsory redundancy. It was understood that Geelong is seeking to hire 10 casuals as there is more work that needs to be done at Geelong than Geelong has the capacity to do. It was said that there is some capacity for people at Webb Dock to move to Geelong. 117



• The reason why permanent transfer to Geelong has not been re-offered is because, of the eight employees who expressed an interest in transferring to Geelong, only two took up the offer of an interview and then both of them rejected a subsequent offer to transfer permanently to Geelong. 118



• In terms of the six employees who had expressed an interest, they had not attended an interview. Mr Meek did not accept that, since the voluntary redundancies have left, people might have a different preference in terms of transferring permanently to Geelong. This was because the six employees did not attend an interview in the first place so therefore, why would they change their mind. It was said that, if they were really interested, they would have attended the interview. 119



• Prior to the changes, there were 45 employees at Webb Dock. 120 None of these employees had volunteered for temporary transfers to Geelong (inter-port transfers) previously.121 The voluntary list was said to have been in place for a number of years and it was open to anyone to volunteer.122



• There are currently more employees remaining at Webb Dock then there are positions available (following the voluntary redundancies and transfers). 123



• The length of service of service of the permanent employees ranges from 4 to 40 years and the workforce could be described as loyal. Generally speaking, it could probably be said that the employees have limited formal education, particularly the older ones. There are a number of employees who are in their 50s and 60s and the workforce is predominantly male. 124



• The company notified in early March 2014 that the compulsory redundancies were scheduled to take effect on 30 April 2014. The date was moved forward to 29 April 2014 in late February/early March following a joint management decision to do that. The reason for moving the date was thought to be because Tuesdays are generally quieter than the other days of the week. It was accepted that the letter dated 7 March 2014, which was sent to all employees, stated that the redundancy process would be completed by the end of April 2014. 125



• With respect to the behaviour of casual employees versus permanent employees, it was not accepted that casuals have a stronger incentive to keep in the company's good books than permanent employees. As a general proposition, Mr Meek accepted that casual employees are less likely to disagree with management decision-making. 126



• In terms of the company’s labour model, which has a higher proportion of casuals than in the past, he accepted the view that the company needs a business model for a completely changed business. The ideal workforce was not said to be all casual employees. There are a number of reasons why it is important to have a solid permanents base. These included that full-time employees develop on-the-job skills, they tend to stay longer than casuals and they deepen their skill base every year. The downsides include the cost of employing permanent employees when the work fluctuates with the number of employees needed on any one day also fluctuating. 127

(b) Submissions

The union

[13] It was submitted by Mr Fetter that the Commission is to decide the fate of 20 permanent employees and that it is open to the Commission to choose either of the parties’ labour models or come up with a more appropriate one. 128 The workforce at Webb Dock was described as being long standing employees who, the company conceded, will find it very difficult to get other work. In addition, the decision will impinge on the future of stevedoring and the structure of the workforce in this company, with flow-on effects to other companies. It was stated that the dispute is really about whether Patrick is to return to the 19th Century model of a casualised workforce versus the model that was built up painfully over the course of the 20th Century of full-time and permanent employment.129 The union contended that the company is seeking the wholesale casualisation of the workforce in circumstances where the jobs have always had some down time which has been supported by employers. It was stated that the employer is not entitled, under the rubric of flexibility, to say that it should not have to pay for any labour except the actual minutes when people are loading or unloading ships, particularly given the prospect of new work.130

[14] With respect to the issue of power, it was the union's contention that clause 15.5 of the Agreement gives the Commission its power. It was said that it is clear from the terms of this clause that it allows the union to refer a dispute to the Commission where it disagrees with a decision or its implementation. The broad language of the clause, including reference to disagreeing with the decision, was said to clearly show that the parties intended for the Commission to be able to arbitrate the merits in the classic sense of going both to the substance of the decision and process issues. This is to be contrasted with the much narrower language of Schedule 1 which is confined to an arbitration on the question of whether the Agreement has been applied properly. 131

[15] In terms of the orders that the Commission can make, the union argued that clause 10.3 has to be read in the context of the whole Agreement. It was contended that clause 10.3 and the other clauses that purport to give the company absolute discretion about something, represent the position on a day-to-day basis. Clause 15.5 only makes sense if all of the other clauses are read as giving way to the clear intent of the parties (in clause 15.5) to refer a matter to the Commission for arbitration on the merits. If it is not read that way, one would end up with the result that the union could refer a dispute to the Commission about change, under clause 15.5, and the Commission could not make orders of the sort that a union would naturally be seeking in such a dispute. There is therefore no relevant limitation on the Commission's powers to make the orders that the union is seeking. It was said to be a question of discretion and it was acknowledged that the union has the onus of showing that its model is to be preferred. 132

[16] The union provided a revised set of costings for its labour model. 133 The union is still seeking to keep 25 full-time employees and 32 PGE’s. However, in order to make the numbers work, the union has revised its model in terms of A Supplementary employees by reducing the number from 45 to 42. It was stated that the principal driver regarding the labour model issue is cost. The purpose of the revised costings is to show the Commission that the union’s model can be implemented at the same cost as the company's labour model covering the same number of working hours.134

[17] Therefore, if the cost issue comes out of the equation, it then becomes about other issues going to merit, e.g. the retention of permanents over casuals. It was explained that the union has accepted the company's assumptions and has used their cost per worker figure of $144,580 resulting in a total cost to the company of $3.6M for 25 full-time employees over a year. The union also indicated that, in the revised costings, some allowance has been made for the fact that not every worker is going to take all of their sick leave. Therefore, the total cost of the labour model is $9.168M and for that, people will work between 115,000 and 121,000 hours with the difference being the amount of sick leave taken. It was stated that sick leave is a matter that, to some degree can be managed by the company in that some of it is unavoidable but some of it can be managed. 135

[18] With respect to the revised union labour model, 136 it was argued that the company’s representation of it as providing 6000 more hours than required was a misreading of the document. If the same assumptions as Mr Tobin’s are included (all sick leave will be used), then the 6000 hours overhang disappears. In terms of the company’s contention that casuals are allocated too few shifts, it was argued that there is no direct evidence in regard to casuals.137

[19] In terms of the criticism that the union’s model is not delivering 150 people for peak periods, it was recalled that Mr Tobin’s evidence was that, going forward, there is one berth at Webb Dock West as opposed to the previous three berths. Based on this, it was said that there will always be at least 27 - 52 people per shift available on the union’s model. In total, it was said that there is quite a significant labour force (around 138/139) which the business would run with. This is permanents doing most of the work with casuals being used for spikes. 138

[20] Marrying up the numbers between the company’s labour model costing and the union’s labour model costing was said to result in a company figure of $9,127,773.00 compared with a union figure of $9.168M. The company is seeking 118,264 hours of work which the union model provides - when no sick leave is taken or if intermediate levels of sick leave are taken. If there are spikes in demand, it has always been without prejudice to the ability of the company to hire ad hoc labour to deal with those spikes. Therefore, the difference between the two models is that the union’s labour model is marginally more expensive (about .05%) 139

[21] However, it was stated by the union that it should be noted that the company’s self-imposed budget was $8.25M and that the company has already allowed itself to go over that by a significant amount. Secondly, Mr Tobin evidence’s was that it was all about making sure at the end of the next financial year that the business runs at a profit or at least break even. None of the usual expected documentation to support all of this had been provided by the company. It was said that the tenor of Mr Tobin’s evidence was that he was trying to cut costs in other areas and it was all a bit fluid but he thought he would make it. Therefore, there is no suggestion that an extra $40,000.00 approximately would break the bank. As there is no evidence to support the company’s position, the Commission needed to be very cautious about accepting the company's position. The union has made a number of concessions in modifying its model to make sure that it has a model that, within a very small tolerance, matches the company's model. 140

[22] Further, the Commission was urged to be cautious about the company's projections for the business going forward. The Commission was invited to draw an inference from company’s evidence that the business is going to be better than Mr Tobin has forecast. It was stated by the union that the company has forecast that car imports into Australia are projected to fall by 4.6% this year. The union suggested that the Commission should accept that the forecasts by the proposed operator of Webb Dock are the real forecasts and that, with the high Australian dollar, the exit of Australian car manufacturers and the consequential growth of imports, this has to mean that more imports are likely over at least the medium-term at least. 141

[23] It was contended that the objective evidence tended to contradict the gloomy picture that Mr Tobin was trying to paint about the business moving forward. Work at Geelong was said to have increased by 40,000 man hours of work recently with five people having been taken on from Webb Dock and recruiting for another 10 people. In terms of Westernport, the union stated that, whilst it was true that the windmill work is only five shifts, it was said to be clear that the company was going to bid for more work afterwards e.g. the oil and gas project. The only inference that could therefore be drawn is that Mr Tobin’s costings, in terms of forward work, had been done on a conservative basis. As it is likely that the company is wrong in terms of forward work projections, the union’s labour model was said to put the company in a position where it can easily upscale to deal with more work and where it can easily make its budget. The evidence was said to show that it is likely that the risk is on the upside and that the company is going to do better than forecast. It was stated that it is not necessarily a business whereby the work has reduced by 2/3 and it is only going to reduce further. Rather, the company is doing everything it can to increase business and why would the Commission assume that it is going to be unsuccessful in achieving that. 142

[24] In summary, the union submitted that the union’s labour model suits a scenario where there is upside risk because it retains the skilled workforce and will allow the company to easily get more out of the permanent employees for no additional cost. This is because their wage has already been spoken for in the $9.168M so, every additional shift at Webb Dock West is essentially for free. Work undertaken at the other ports through inter-port transfers was said to not be a significant additional cost. 143

[25] On the other hand, if the company adopts the model it was, it leaves itself in a position where, if there are new jobs, they have to hire casuals. The casuals will then require training, the cost of which has not been factored into the company’s model as it only provides for the cost of unloading. It was stated that it is very expensive for the company to not have permanent employees and to have to rely on casuals, who are less well trained, more expensive and less skilled. 144

[26] The company’s preference for their labour model appeared to be based on flexibility and the avoidance of too much downtime. However, it was argued that, in this industry, it has always been the case that there are long periods of time when people are not working. Ships come and go but the industry has afforded and supported a largely permanent workforce over the last hundred or so years and it has just been part of the employer's cost of doing business. The changes were said to not be so dramatic for it to no longer be possible or appropriate for the company to continue to do that, particularly with the prospect of new work coming on stream. 145

[27] It was acknowledged that Mr Follett is correct that there are different types of arbitrations available. A rights arbitration was said to typically be one where an arbitrator is required to do what a court does - declare whether or not there has been compliance with someone’s rights. The other type of arbitration is an interest-based (industrial) arbitration where the arbitrator is not asked to apply an existing document giving rights. Rather, the arbitrator determines a dispute presented to it without clearly applicable standards and decides what should happen ie. what the parties should do to resolve the dispute. 146 The Commission was said to have been, for most of the 20th Century, doing interest - based arbitrations when it was making awards.147

[28] With the advent of enterprise agreements, it was argued that there was a concern that agreements might provide the Commission with the power to conduct a rights arbitration. This arose from a worry about the separation of powers and was said to be the question that the High Court was resolving in the Private Arbitration Case. 148 The High Court’s answer was recalled to be that, if the parties asked the Commission to do a rights arbitration in an agreement, then the Commission can do it. It was contended that neither the Private Arbitration Case nor any other case, says that, when parties refer a dispute to the Commission, it is referred for a rights arbitration. Mr Fetter indicated that the union and the company seemed to agree that parties, also, can empower the Commission to conduct a merits arbitration e.g. reserved matters.149 However, the parties do not agree on the construction of this Agreement and the nature of clause 15.5. It was argued that this has to be a merits arbitration otherwise clause 15.5 makes no sense. This is because it gives the union the hollow right to refer a dispute to arbitration but then it cannot ask the Commission to rule on the dispute.150

[29] Secondly, the union submitted that the Commission’s default powers require the Commission to act in a way that is fair and just and to take into account equity, good conscience and the merits of the matter (sections 577 and 578 of the Act). 151 Where the parties have provided for the Commission to “arbitrate”, it was argued that it was capable of referring to either a rights or an interest arbitration. Regard has to be had to the statute which requires the default position to be that the Commission has all of its usual powers, unless the parties say otherwise. The company was said to be saying the opposite - that the parties have to expressly say “merits arbitration”. However, it was argued that sections 577 and 578 suggest the contrary - that the default is (when “arbitration” is specified) that the parties are expecting the Commission to do a merits based arbitration. A couple of recent decisions of the Commission were referred to in this regard.152

[30] The union submitted that each case has to be looked at on its own facts and language. The NUW v Pacific Dunlop Tyres Pty Ltd case 153 (Pacific Dunlop) was highlighted as an example of a merits arbitration whilst the RACV Road Service Pty Ltd v AMWU154 (RACV) decision was highlighted as an example of a rights arbitration.155

[31] The crux of theunion’s case was said to be that there is something different going on with this Agreement. It was argued that, although clause 15.5 does not spell out whether it is a rights or interest arbitration, in the context of the Agreement, this clause can only have been intended by the parties to allow the Commission to do a merits or an interest arbitration in the context of significant change. It was recalled that the company had argued that significant change means any change in the workplace including any redundancies. The Commission was cautioned against accepting that as Mr Fetter was not sure that the company really meant that any time it makes a person redundant, it has to go through clause 15.5. It was contended that the change has to be significant. 156

[32] With respect to the company’s contention that clause 15.5 is essentially the same as clause 8.5, it was submitted that all clause 8.5 does is refer to Schedule 1. However, clause 15.5 was said to be not like that because it provides that there can be a dispute over a decision which is wider then Schedule 1 which only provides for disputes over the application of the Agreement. Rather than being similar, clause 15.5 and clause 8.5 should be contrasted with each other. Attention was also drawn to clause 11, which was said to utilise the language of “application”, which is very different to that of clause 15.5. This was because clause 11 provides for a dispute over the application of the rules set out in clause 11 rather than a dispute over a decision to subject an employee to a grievance process. Clause 8.3 of Schedule 3, together with clauses 11.6 and 8.5 were said to be the types of clauses that Mr Follett was referring to - where they generally refer the reader back to Schedule 1 and do no work of their own. Clause 15.5, on the other hand, was argued to be very different. 157

[33] Further, the union argued that the Agreement should not be read as a legal document drafted by lawyers but should be given its practical and industrial utility. All the different provisions need to work in sync and, as part of that, clause 15.5 was stated to come into its own in the context of significant change. The other clauses that give the company day to day discretion in terms of workplace matters were said to fall away. 158

[34] In addition, it was argued that the whole of clause 10 should be considered and not just clause 10.3. It was stated that clause 10.1 gives the company an obligation, not a discretion, to employ sufficient labour to meet skill and operational requirements. Clause 10.2 was described as an expression of intent to minimise casual employment. These clauses were said to not provide the company with absolute discretion about something. Therefore, clause 10.3 had to be read in this context which includes clause 10.4 concerning the timing of the filling vacancies. 159

[35] With respect to thedecision in CEPU v Thiess 160 (Thiess), it was contended by the union that it is opposite to the facts in this case rather than identical. This is because there was a provision in the Thiess agreement about the implementation of 4 x 4 rosters and that was all there was. There was also something in the dispute settlement procedure which allowed a dispute about the application or interpretation of the agreement - a rights based arbitration which Tracey J was said, in effect, to have found. What was not present in the Thiess agreement was a clause, immediately following, which says that, in the event the union disagrees with the implementation of the 4 x 4 roster, the union may refer it to the Commission. Therefore, the two cases could not be said to be identical because there was not the equivalent of clause 15.5 in the Thiess agreement.161

[36] In terms of the union’s labour model, the union clarified that the nature of its case is that the company’s labour model is unfair, unreasonable or unjust. This is on the basis that, unless ordered otherwise, the company is going to dismiss 20 long serving employees in circumstances that it is:

• Unreasonable to do so when there is a way of saving those jobs at the same cost with no manifest disadvantages.



• Also unreasonable and unfair considering the impact on the employees. 162

[37] It was concededby the union that it is not sufficient in a merits arbitration to simply say that there is a better way. It was accepted by the union that it is a relatively high hurdle to persuade the Commission to exercise its discretion but it was said to not be as high as the company was submitting. 163

[38] In terms of the company’s reliance on the XPT 164 case, the union contended that things have moved on since then. Reference was made to the Telstra decision165 and the High Court decision in Re:Cram: Ex parte NSW Colliery Proprietors’ Association Ltd and Others166 (Re:Cram).It was argued that these decisions stood for the proposition that, it is not any interference with management prerogative that is a problem. Rather it was a question of proportionality and degree. Re:Cram was said to be saying that, if the Commission is making a permanent change to the employer’s power, the Commission should exercise caution. In this matter, it was said that this is a dispute over the application of the significant change at a particular point in time. If things do not eventuate as the union predicts, there is no suggestion that the Commission’s orders will bind the employer for all time from implementing redundancies. If the facts change, the company would be free to exercise its prerogative. Re: Cram was about permanently restraining the employer from exercising its prerogative whilst the union is seeking that the Commission restrain at this time and that, if the facts change, all bets are off. The APESMA v Yallourn Energy Pty Ltd167 (Yallourn) and Caltex Refineries (NSW) Pty Ltd v AWU168 (Caltex)cases were also referred to in terms of the union’s proposition about timing.169

[39] In summary, the union submitted that a specific intervention is being sought to stop redundancies which, given the picture of the business at this point in time, are unwarranted, unfair, unreasonable and unjust. If, in six months time, things change, the employer’s prerogative was said to be preserved. 170

The company

[40] On behalf of the company, Mr Follett argued that it is not a merit arbitration, that the orders sought by the union are precluded by section 739(5) of the Act and that there is no merit. The easy way home was described as the Commission ‘assuming but not deciding’ because, when the Commission comes to deal with the merits, it should have no difficulty whatsoever in dismissing the application. 171 It was argued that there was no suggestion by the union that the company has breached the Agreement or that the company has not consulted or followed a particular procedure or practice. It was stated that the case was about the union not liking the outcome and proposing a different outcome.172

[41] The company contended that the Commission cannot issue the orders sought by the union because the orders do not resolve any contested application of the provisions of the Agreement, having regard to the nature of the arbitration which the Commission exercises under the Agreement and/or the orders sought are precluded by section 739 (5) of the Act. In the alternative, it was argued that the Commission is required to approach to each of these issues consistent with the principles in the AFULE v State Rail Authority 173 (XPT case) which would result in an order dismissing the application.174

[42] It was stated that there are two types of arbitration - an interest/industrial arbitration and a rights arbitration or legal arbitration (also known as a private arbitration). The company stated that the union’s argument that, in the Commission's role as a private arbitrator under a dispute resolution procedure, the Commission is engaging in a merit or an interest arbitration, is wrong. It was said that the distinction between private arbitration and industrial arbitration is well-known and the Commission was referred to NUW v Pacific Dunlop Tyres Pty Ltd 175 where the two types of arbitrations were clearly distinguished.176 Reference was also made to the Private Arbitration Case in the High Court177 where it was determined that the powers the Commission exercises under an enterprise agreement are the powers of private arbitration.178 The Full Bench decision in University of Western Sydney v Fletcher179 was also referred to in this regard.180 The company therefore submitted that the Commission is conducting a private arbitration to determine legal rights under the Agreement and that the Commission’s decision is not discretionary. It is either right or wrong whereas a merit or fairness arbitration is the epitome of a discretionary decision.181

[43] It was acknowledged that it is possible for the parties to an enterprise agreement to empower the Commission to conduct a merits arbitration. However, it was argued that the Agreement in question does not do that. Clause 15.5 was said to not be a source of power because, if Schedule 1 was not in the Agreement, the Commission could not arbitrate. Rather, clause 15.5 simply says that if the union has a dispute about change, the dispute can be referred to the dispute settlement procedure and then one takes the dispute settlement procedure (Schedule 1) as one finds it. Schedule 1 says that there can only be a dispute about the application of the Agreement. It was accepted that there is an argument that clause 15.5 might skirt around the application of the Agreement. However, it still does not take the union where it needs to go. It says nothing about the nature of the arbitration which might arise at the end of the dispute resolution process which can only be a private arbitration involving the identification of the parties’ legal rights and obligations. 182

[44] The facts of Thiess were described as being almost identical to this matter. There was power in the agreement for Thiess to terminate the 4 x 4 roster. Thiess indicated that it was intending to do this and the union notified a dispute about the manner in which the matters have and will be implemented. Tracey J decided he had jurisdiction as there was a dispute about the application of the agreement. The only difference compared with this case so far was said to be that Thiess had discretion rather than an absolute discretion. It was submitted that His Honour accepted that the company had an unfettered discretion and that the right may not be abrogated against their will even if the dispute is ultimately arbitrated. The company argued that Thiess also stood for the proposition that the union cannot get what they are asking for. 183

[45] In terms of this matter, clause 15.5 was said to merely bring in Schedule 1 which provides for arbitration. Further, the company submitted that, although the union was arguing that, in the absence of anything else, “arbitration” means a merit arbitration, it is actually the opposite. “Arbitration” was said to refer to private arbitration (legal arbitration). As clause 15.5 does not talk about arbitration and simply opens access to dispute resolution, it is difficult to say that the clause changes the nature of the arbitration provided for in Schedule 1. There was said to be nothing unusual about clause 15.5 which would end a private arbitration and start a merit arbitration. 184

[46] With respect to the union’s proposition that the specific prevails over the general i.e. clause 15.5 prevails over clause 10.3, it was argued that the reverse is actually the case. Applying the ordinary principles, clause 10.3 prevails over clause 15.5. Even if this is not the case, the company submitted that section 739(5) of the Act would still operate. 185

[47] In terms of the union’s contention that clause 15.5 relates to significant change which is to be distinguished from clause 10.3, the company argued that clause 15.5 defines what is significant change. This includes redundancy and changes to the composition of the workforce. If the union is right, it was submitted that clause 10.3 would have no work to do. 186

[48] With respect to the orders sought by the union, the company argued that the union wanted the Commission to determine the labour model. As clause 10.3 states that the company determines the labour model, it was contended that it is impossible for the Commission to make that decision. This is because section 739(5) means that the Commission cannot make a decision that is inconsistent with clause 10.3. This includes the assessment and selection orders. It was indicated that the only way the union’s orders would not be inconsistent with management’s unfettered discretion in the Agreement is if the orders led to the same outcome. Clause 10.3 was said to provide the company with the right to decide the number of employees and the make up of the employees. 187

[49] If the Commission rules against the company on all of the previous points, and assuming that this is a merit arbitration, the company submitted that the union’s application lacks industrial merit and should be dismissed. Putting it plainly, it was stated by Mr Follett that it is the company that invests the capital, takes the risks and runs the business. It is therefore not for the union, the employees or the Commission to say that there is a better way. The case was said to be about whether what the company has proposed is unfair or unreasonable. The Commission was referred to the XPT case, to CEPU v Telstra Corporation Limited 188 (Telstra), and to the Yallourn189 and Caltex cases.190 These were all said to be merit arbitrations and are authority for the proposition that the Commission must operate from the perspective of whether what is proposed is unfair or unreasonable. When this approach is adopted, it was argued that, even if the Commission accepted everything in the union’s case at its highest, by definition, the company would still win. It was contended that there is no evidence that anything the company has proposed is unfair, unreasonable or unjust. It was said that the union had not put its case this way but on the basis that the union labour model is preferable and more appropriate because it provides for more permanent employees. The Commission could accept the union’s argument. However, it does not take the union anywhere.191

[50] It was contended that Mr Hoy’s and Mr Tobin’s evidence demonstrated that the nature of the work that will remain is sporadic and unpredictable and that PCC vessels are particularly so in a common use berth situation. The company argued that these facts demand a flexible and responsive workforce and that the most nimble and responsive employees are supplementaries, then PGE’s then full-time employees. Mr Tobin’s evidence that he would not have full-time employees on this basis, except for the retention of skills, was highlighted. 192

[51] In terms of the union’s proposed labour model, Mr Follett made the following submissions:

• Mr Hoy’s evidence was that the union did not have any information to enable them to make an assessment of what work would be available in the future. 193



• Despite the uncertainty and the unpredictability of the future, the union’s labour model is premised on the basis of the company employing a whole bunch of employees that the company does not need but might need in the future. 194



• To deal with sporadic and inconsistent future workflows, why should the company employ full-time employees waiting at home until something happens rather than a casual employee who is not getting paid to wait at home but who gets a call when work is available? 195



• The union is proposing that employees should be retained at Webb Dock but not to work at Webb Dock, rather, to work at Geelong. This is in circumstances where no one from the full-time workforce volunteered to go there permanently or to be on a voluntary daily transfer list. Further, the evidence was said to be that there is no chronic constant shortage of labour at Geelong so as to provide a reasonable basis for keeping all of the full-timers at Webb Dock on. 196



• It is very expensive for the company to daily transfer Webb Dock employees all around the state. To argue that the company should transfer Webb Dock employees to Geelong instead of using Geelong Supplementaries or overtime was said to be an extraordinary submission. To retain employees on the basis that the company may need to hire more people in two - five years’ time was said to be speculation about the future. 197

[52] In terms of the union’s labour model, it was contended that, in the first version, it is premised on the basis of full-time employees not working their hours (10% reduction in full-time hours). The revised union labour model now provides for full-time employees to work their full hours which results in the issue of a bunch of hours that are not necessary. The company's labour model is based on 118,632 hours whereas the union’s labour model’s hours are 124,000 which is 6000 extra full-time hours - which are not required. 198 Further, the union labour model was said to assume that all full-time employees will be able to work on every single vessel. However, it was stated that full-time employees do not work on weekends and a lot of vessels come in on weekends.199

[53] In addition, the number of Supplementary shifts in the union’s model would result in those employees leaving. It was argued that the union's model’s approach to retaining more full timers was to basically give casuals no shifts. 200

[54] A further issue was said to be that the union’s labour model provides for 139 employees when the peaks require 150 - 160 employees. This may not happen all the time but, when it does, it was said that the company would be 20 employees short which would result in the hiring of contractors which the union would object to. 201

[55] With respect to the union’s criticism that the company has not provided financial material to support their case, it was contended that Mr Tobin was not cross-examined about any of these matters. The company stated that it was not put to Mr Tobin that his projected hours or calculations were wrong. 202

[56] In terms of the union’s submission that Patrick can bid for more work, it was said that the company can but questioned whether the company should hold onto full-timers in the expectation that they will win extra work. The Company contended that it is easy to scale up with full-timers but that it is also easy to do that with casuals and casuals are not paid in the down times. 203

[57] In conclusion, the company submitted that, even if the Commission approaches the matter from a merit arbitration perspective, the Commission should not disregard the many Full Bench decisions on the Commission not interfering with management prerogative. The case was said to have been debated on the basis of which model is better or worse. The union’s premise was said to be that the company model should retain a whole bunch of people and either leave them idle or have them doing work in other ports where they are not directly employed. 204

2. Who should conduct the performance assessments?

[58] In terms of who should conduct performance assessments in selecting employees for redundancy, the order the union is seeking is as follows:

“1. That the performance assessment should be conducted by forepersons familiar with the work of the employees who are being assessed.”

(a) Witness evidence

Mr Hoy

[59] Mr Hoy’s evidence was:

• It is more appropriate to have forepersons undertake the performance assessments than shift supervisors as they are more hands on. 205 This is because they are overseeing employees’ work to make sure that what needs to be done is done ie. actually seeing the work getting done.206 He sees the shift supervisors at the beginning and the end of the shift and partially throughout the shift. It was said that shift supervisors and forepersons have different roles with shift supervisors more focused on how the job is going and forepersons focused on how the individual is going. A foreperson sees the employee for 6.5 hours per shift whereas the shift supervisor may only see the employee for 15 minutes.207



• There is concern that shift supervisors will discriminate against people who have been genuinely sick and also because of their union activities. 208 He was aware that it would be unlawful if the company selected an employee for redundancy based on illness or union activity.209



• A shift supervisor’s assessment could turn on whether the shift supervisor likes the employee or not. 210



• His concerns relate to the way in which the process will be applied. 211



• It was not accepted that a foreperson could also discriminate against an employee based on illness or union activity or whether they like them or not. This was because there was a workplace culture of looking out for each other. This did not include the shift supervisor. 212 There was said to have been a tainted process previously involving the shift supervisors.213



• It was reluctantly accepted that the best indication of efficient and productive workers is people assessing that. 214

Mr Meek

[60] It was Mr Meek’s evidence that:

• The Shift Managers are responsible for conducting the assessments. It was explained that the Shift Managers have been given specific training to do this. This included being taken through the company’s values in a 4 hour session (as all employees were) and a 2 hour workshop on how to conduct performance reviews. This was followed by an hour-long meeting with the Shift Managers prior to them doing their final reviews. In addition, Mr Meek was available for follow-up queries from any of the Shift Managers. None of the forepersons or team leaders have undergone this specific training. 215 If the Commission ordered that the forepersons were to do the ratings, the forepersons would need to have two hours of training plus any clarification time. As it is not possible to get all of the forepersons together at the same time, the training would stretch over almost a couple of days.216



• It had not been suggested by the union in the past that Shift Managers should not conduct performance assessments. 217



• There are potentially nine assessors for each employee and 150 employees to be assessed. If a Shift Manager does not have a lot of experience with an individual, they can de-select themselves from assessing that person. It was confirmed that this has occurred. 218 Once the employees have been assessed, the highest and lower scores for each employee are removed to mitigate against any bias. The scores are then ranked based on the average scores against each of the criteria.219



• The process whereby an employee can complain about their score was said to involve a meeting with a Shift Manager and a Human Resources person. The individual is given all of their scores and is able to make comments about them. Following the meeting, these comments are fed back to all of the Shift Managers for a final review. It was confirmed that the scores of some individuals have changed following this process. 220



• Mr Meek was unable to be specific about the number of changes but said they indicated that Shift Managers took on board the feedback they had received and had thought about it and had made some changes. It was agreed that it showed that the original assessment was not the right assessment. 221



• In terms of Mr Martin’s performance assessment, it was confirmed that his score of 2.86 out of 5 for “interacts effectively in all working relationships” means that Mr Martin is falling behind on this criterion. Mr Meek thought that it looked like this was the opinion of at least a couple of Shift Managers. 222



• It was acknowledged that Mr Martin had made a couple of written complaints on the assessment form. 223 The reason Mr Martin wanted a particular Shift Manager removed was because that Shift Manager had never been the Shift Manager rostered on when he (Mr Martin) was working.224



• Mr Martin has been re-rated but Mr Meek did not know if his rating had changed. It was explained that the particular Shift Manager had done the second rating as well because it was the company’s view that Mr Martin works in shifts that this Shift Manager oversees. It was the Operations Manager’s decision that it was therefore appropriate for this particular Shift Manager to do Mr Martin’s rating. He had not gone back and spoken to Mr Martin as it would not have changed anything. It was not considered appropriate to remove the rating. Mr Martin's overall score (3.34) was said to expose him to some risk of compulsory redundancy. 225



• It was said that about one quarter of employees had offered feedback on their rating but that not all of them were complaining - just wanting to add extra feedback. There has also been feedback that people are happy with their rating, about 25%. The remaining 50% of employees did not say anything. Mr Meek did not accept that this is a relatively high level of complaint based on his previous experience. 226



• Shift Managers are able to self exclude if they have no experience with an employee. It was accepted that it is an unlikely risk that a Shift Manager does not self exclude when it is appropriate to do so. A handful of such complaints had been received. It was acknowledged that these rating decisions have very serious consequences for people. The company would not be happy if a handful of employees received an unfair rating. 227



• Shift Managers have been selected to conduct the assessments because they oversee the whole operation and so have a reasonable idea about how people work. They also talk to the team leaders about what is happening on the job day to day. It was accepted that the Shift Managers are not side-by-side with employees as much as the team leaders. Shift Managers were said to understand the values and what the company is looking for as a total operation, better than the team leaders. 228



• It was not accepted that, if forepersons were doing the assessments, complaints such as Mr Martin’s would not arise. It was said that there would be problems with consistency if the forepersons did the assessing because they only work with specific gangs and not with everybody. Therefore, they could not have a balanced view because people rate others differently on the basis of their own interpretations of things. The company had provided consistency through consistent criteria but there is concern that forepersons might show some bias in favour of the people in their gangs. It was stated that there is more potential for this to happen when the foreperson is required to rate another foreperson. Mr Meek said that there is less of a risk for Shift Managers as there is no reciprocal rating going on. There was no concern that union members would prefer union members and therefore give union members a better rating than non-union members. 229



• The difficulty with team leaders assessing each other was said to be the potential for bias when people are assessing their mates. Therefore, it is much cleaner to have the people overseeing the operation do the ratings. Team leaders’ employment is covered by the Agreement while Shift Managers’ employment is not. 230



• It was confirmed that Shift Managers conduct the assessments for upgrades under the Agreement. In terms of the issue raised by Mr Hoy about the role of Shift Managers and upgrades, it was Mr Meek’s understanding that the issue was more about the decisions made by senior management rather than the Shift Manager’s ratings themselves. The use of Shift Managers in upgrades is required by the Agreement. 231

(b) Submissions

The union

[61] The union submitted that, in all of the circumstances, it is unreasonable for the company to use the Shift Managers to perform the assessments. This is because the Shift Managers are removed from direct supervision of the employees and they do not know in any detail the work that the employees do. This was said to be particularly important given that the criteria the company want the assessors to use are very much focused at the level of the actual task. It was argued that forepersons are in the know in terms of the information required by the criteria but that Shift Managers do not know as they are removed from the work. 232

[62] Secondly, the Commission was referred to the large number of complaints that employees are making about the process. This was said to demonstrate the problem with the system. It was argued that it is a problem that would not exist if the forepersons had done the assessments. This was because employees could not say that the forepersons did not know their work as they had not supervised them. The company’s concerns about the fact that the forepersons could not be used because they had not been trained could easily be met by providing the forepersons with the same three hours of training. In addition, the company’s concerns that there would be collusion between the forepersons and that they would give preferential treatment to their friends was said to not be supported by any evidence. It was stated that this was a slight on the professionalism of the forepersons and an implicit view that the forepersons cannot be trusted. 233

The company

[63] The company argued that the evidence did not show that the union had a problem with the Shift Managers performing the assessments per se. Rather, it was that, as soon as humans are involved in an assessment process, the comment could always be made that it should have been done differently. The company argued that the union’s model would not solve this problem. 234

[64] Mr Hoy’s evidence was recalled to be that he accepted that skills, tenure and discipline do not determine efficient and productive employees but are relevant. The best way to assess efficiency and productivity was said to be to conduct a performance assessment. 235

[65] It was asserted that the union’s criticism of the company’s suspicions about collusion by team leaders was said to be a slight on the team leaders. The company contended that it is also an appalling slight on Shift Managers to say that they might act unlawfully in their selections for redundancy. Even if this happened, the company argued that the employees have their rights under the Act. 236 In terms of the collusion issue, it was argued that it is difficult for the company to come up with evidence. The union’s only evidence was said to be Mr Martin and it was submitted that there could be a debate about the merits of having gone back to Mr Martin for his response. However, it was stated that it is difficult to obtain hard evidence about possible discrimination on the basis of sick leave or union activities.237

[66] If the Commission did not also order Patrick to train the team leaders, the Company would have to do that of their own volition if the company wanted to have a fair process. If the Commission did not order that or the company did not do the training, it was contended that the result would not be the outcome the union seeks. 238

[67] In terms of the union’s contention that, if the forepersons do the assessments, there could not be complaints that the forepersons did not know them, it was stated that the evidence supported the opposite view. Mr Meek’s evidence was referred to where he explained that employees do not rotate through the gangs so that there are a lot of forepersons who do not have experience with all of the employees. 239

3. Selection criteria weighting

[68] With respect to the criteria to be used in selecting employees for redundancy, the union is seeking an order that:

“1. The criteria should be:

(a) Experience: 25%

(b) Skills: 10%

(c) Disciplinary record: 15%

(d) Performance: 50%.”

(a) Witness evidence

Mr Hoy

[69] Mr Hoy’s evidence was that:

• There is concern that some of the measures used are not objective enough and are unclear. 240



• The performance appraisals were meant to be on an annual basis. 241



• It was accepted that, just because someone is not a troublemaker, does not mean that they are efficient or productive. 242



• It was said that it can vary as to whether a long serving employee or someone with a particular skill is more efficient and productive. 243



• The union’s proposed weightings place more emphasis on objective markers of suitability eg. skills and a clean disciplinary record. 244

Mr Meek

[70] It was Mr Meek’s evidence that:

• There are selection criteria for assessing which employees will remain with the company. These are based on tenure, any additional skills that might be beneficial to the business going forward, job efficiency and productivity. Tenure is weighted at 23.5% of the total weighting with skills at 5%, disciplinary record at 15% and 71.5% for performance. 245



• The disciplinary criteria works on the basis that, if there is a written disciplinary discussion file note since 31 January 2013, points will be deducted based on the level of disciplinary outcome. 246 This was said to show if somebody is a good or not good performer.247



• The selection criteria for performance are in line with, and based on, the company’s four values - safety, customers, people and teamwork and performance which the company works towards in the most efficient, effective and productive manner. 248 They were said to inform the approach of everyone in the company to work.249 The values apply to the whole of the Asciano group and were rolled out last year.250



• In terms of the tenure selection criterion, it was said that this is an important one as tenure means that a person has on-the-job knowledge - some intellectual property. 251



• With respect to the additional skills, it was explained that people are trained in certain things and that it is important to have those skills remain in the business. 252



• Tenure, skills and disciplinary record were said to be pure judges of on-the-job performance in terms of efficiency and productivity. 253



• It was stated that on-the-job performance is the most important indicator of someone whom the company wants to retain, hence it having the highest weighting. It was therefore not accepted that a 71.5% weighting is too high. It was acknowledged that the union is seeking a weighting of 50% for this criterion and that the union’s proposition is not completely unreasonable. 254



• In terms of the East Swanson Dock selection process, 255 it was stated by Mr Meek that the (different) criteria were developed by East Swanson Dock. These include a criterion of “right fit”. It was indicated that the Shift Managers at Webb Dock were not required to look for people who are the right fit. This was because the employees are already in the company and, if they are not the right fit, this would be played out in their performance against the values.256



• With respect to Mr Martin's performance rating, 257 it was explained that the five statements are the key indicators around the four company values. It was agreed that the company has developed more extensive criteria based on the four values. Shift Managers had not been given instructions on how to rate these sub criteria. The rules and procedures criterion includes any rule and procedure (not just safety). However, it was conceded by Mr Meek that he did not know of any company rules and procedures that may not have any bearing on safety.258



• It was agreed that the third criterion contains two different criteria and that “interacting effectively” is quite broad. There may be some ambiguity but it was said to mean that “effective” is when someone is able to get their communication across and work well with all of the people they are required to work with. It was acknowledged that there is an element of subjectivity and clarification had been sought by the Shift Managers during the workshop. 259



• It was acknowledged that “promoting a positive work environment” could potentially leave a lot of scope for interpretation. Shift Managers were said to have not asked questions about this criterion because they understood the difference between a positive and a negative work environment. If an employee questioned management decisions in an effective and constructive way, they would not be scored low on this criterion. It was recalled that Shift Managers had requested clarification about this particular question. It was indicated that there may be a risk that the criterion is so broad that it would allow a Shift Manager to mark down an employee who actively questions management's decision making. 260



• Shift Managers had also sought clarification regarding “high levels of attendance”. It was stated that Shift Managers had been told not to downgrade their ratings if someone had a high number of sick days. Shift Managers were not told how many sick days people had taken but all of them would have had some experience in dealing with the sick log. It was accepted that people usually have a good reason to take a sick day. 261



• It was accepted that it was a risk that someone who has taken a lot of sick days would be scored low. However, it had been workshopped with the Shift Managers as to what it actually meant. Attendance also included turning up on time, the number of toilet breaks et cetera. It was stated that these were things that Shift Managers would see despite performing a multitude of tasks on shift. 262

(b) Submissions

The union

[71] It was stated that the parties are not terribly far apart on this issue and that performance is clearly an important factor in determining who should be retained. The difference between the parties was said to be that the company has underdone it in relation to some of the other criteria, particularly skills where the union is seeking a 10% weighting whilst the company has only given it 5%. The union argued that this is important in the business context of the company bidding for other work and doing work of a different nature to only cars e.g. a wide range of work is now being done at Geelong. It was submitted that the company should want to keep the people who have got that breadth and depth of skills. 263

[72] It was argued by the union that the Agreement is entirely silent on the selection process for redundancy. If it were to be anywhere, it would be expected to be in the redundancy clause (clause 32) which does not contain anything about the selection process. The union indicated that the company’s argument was therefore that, as the Agreement is silent, it must reserve to the employer the full discretion to make that choice. In response, it was submitted that clause 15.5 puts beyond doubt that implementation of the change is subject to challenge. If clauses 32 and 15.5 are read together, they contain nothing about process. However, clause 32 was said to be incapable of being extended to the question of the weightings to be given to the criteria and the identity of the assessors. 264

The company

[73] The company submitted that clause 10.3 covers who is selected, not in terms but in its implementation. The company has the absolute discretion to decide the composition of the workforce. It was argued that the company has an unfettered and absolute discretion to change the composition of the workforce. This included the discretion to determine redundancies including the number of surplus people and who they are through the selection process which would yield the names. This was described as implementation of the decision. The orders sought by the union regarding the selection criteria and the assessors were therefore inconsistent with clause 10.3 of the Agreement and so are unable to be made due to the operation of section 739(5) of the Act. 265

[74] The evidence was said to not demonstrate that the company’s weightings of the selection criteria are unfair or unreasonable. 266 Given that the union’s view is that the parties are not far apart in terms of their respective weightings, it was submitted that it would therefore be difficult to say that the company’s weightings are fundamentally unreasonable or unfair.267

CONSIDERATIONS AND CONCLUSIONS

[75] It was submitted by the company that the orders sought by the MUA are not capable of being made by the Commission because it is not a merits arbitration or that, if it was, the operation of s.739(5) of the Act would prevent the orders being made. In the alternative, the company contended that, if it is a merits arbitration, it should be approached on the basis of the principles set out in the XPT case.

[76] It will be noted from the brief written decision 268 issued in respect of this matter, the jurisdictional issues raised by the company were not dealt with. The orders sought by the union were the only issues addressed in that decision. As a very quick turn around time for making a decision was necessary, the Commission adopted the company’s proposal that it may take the time honoured approach of “assuming not deciding”.269 Therefore, having carefully considered the submissions of the parties on the jurisdictional points, in the interests if time, the Commission took the approach of assuming, but not deciding, that the Commission, in conducting a merits arbitration, has jurisdiction to make the orders sought.

[77] In deciding whether to exercise its discretion and issue the orders sought by the union, the Commission was guided by the XPT principles and also by the other subsequent decisions including Telstra, Yallourn and Caltex.

[78] I will deal with each of the orders in turn.

(a) Labour model order

[79] In the previous brief written decision, the Commission declined to exercise its discretion and issue this order. Despite the development and then subsequent revision, of a labour model by the union, together with costings, there was not sufficient material before the Commission to find that the company’s labour model was unjust or unreasonable. The union’s predictions in terms of an increase in future work flow were not predicated on enough of an evidentiary base such as would result in a finding that the company’s labour model is unreasonable or unjust.

[80] Further, as Smith C (as he was then) observed in Telstra, the traditional tests regarding management prerogative are:

“It is settled that this Commission, and its predecessors, did not intervene in the prerogative of management to run and organise a business in the way in which it considers the most efficient manner. This prerogative was subject to it not being exercised in a manner which could be regarded as harsh, unjust or unreasonable…” 270

[81] Smith C went on to cite the High Court decision in Re:Cram where, he said 271, it was made clear that, whilst there is jurisdiction for the Commission to deal with matters of managerial prerogative, “caution” should be exercised where the Commission’s dealing amounts to “a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted”272.

[82] Therefore, there would have to be strong evidence before the Commission would step into the shoes of the company and, in this case, determine that either the union’s or the Commission’s view about staffing is the correct model for the future, rather than the model the company, itself, has developed.

[83] Accordingly, there is no basis for the Commission, in this matter, to interfere substantially with the autonomy of management to decide how the business will be conducted efficiently, in terms of its labour model moving forward for the changed business.

(b) Conduct of performance assessments

[84] In the previous brief written decision, the Commission decided to issue an order 273 to the effect that, for those employees who report to forepersons, the forepersons, in conjunction with the shift supervisors, will conduct the performance assessments of these employees. It was stated that the Commission had formed the view that the issue of who should conduct the performance assessments is not covered by the terms of clause 10.3 of the Agreement. This was on the basis that clause 10.3 refers to the size and composition of the workforce but not to the individual identity of employees.274

[85] In reaching this conclusion, the union’s submissions on this issue are accepted. It is my view that, in clause 10.3, “size” refers to the number of employees, how many whilst “composition” relates to how may full-timers versus part-timers versus casual employees. The wording of clause 10.3 does not appear to be able to stretch as far as the company contends ie. it includes “who” in terms of the size and composition of the workforce. Therefore, an order regarding who should conduct the performance assessment is not prevented by the operation of section 739(5) of the Act.

[86] In issuing an order as to the persons who should also conduct the performance assessments, the Commission has been persuaded that it would be unreasonable not to have the input of the people, with the most knowledge of the employees’ skills and work performance, in the assessment process. The majority (71.5%) of the company’s selection criteria concern performance. Given this fact, together with the company seeking to retain the highest work performers for the changed business going forward, it is unjust and unreasonable that those supervisors, with the direct knowledge of employees’ skills and work performance, are not involved in the performance assessments. The exception to this, as provided for in the order, is that it is not appropriate for forepersons to assess other foreperson’s performance.

[87] The order also provided for the forepersons to conduct the performance assessments of the employees in conjunction with the shift supervisors. The order sought by the union required forepersons only to conduct the performance assessments. The Commission was not of a mind to order that the forepersons alone conduct the performance assessments. This is because Mr Meek’s evidence 275 that, what Shift Managers bring to the table, is a better understanding of the company’s values and what the company is looking for as a total operation, better than the forepersons, is accepted. However, given the high weighting for performance in the selection criteria and the need to retain the appropriately skilled and performing employees for the changed business moving forward, assessment input from both the forepersons and Shift Managers, would provide a more reasonable and just assessment of individuals. It should not be forgotten that the purpose of the assessments is to enable the company to determine which employees will keep their jobs and which employees will involuntarily lose them.

(c) Selection criteria

[88] The Commission declined to issue this order which would have altered the relative weightings of the four selection criteria. It was the union’s submission that the parties were not very far apart on this issue with the main differences being in regard to the non performance selection criteria. 276

[89] Given that this is the situation, the Commission has not been convinced that it is necessary to interfere with the company’s decisions regarding the relative weightings of the selection criteria. In all of the circumstances of this matter, the weightings proposed by the company appear to be neither unfair nor unreasonable.

Appearances:

Mr J Fetter of counsel for the MUA

Mr M Follett of counsel for the respondent

Hearing details:

2014.

Melbourne:

April 28, 29.

 1  See email from Maurice Blackburn dated 24 April 2014

 2   Transcript PN 1643

 3   [2014] FWC 2822

 4   Transcript PN 1664 - 1665

 5   Ibid PN 1647 - 1648

 6   Ibid PN 1787 and Exhibit M3 at paragraphs 1 and 2

 7   Ibid PN 1727

 8   Ibid PN 1728 - 1731

 9   Ibid PN 1823

 10   Ibid PN 1736 - 1760

 11   Ibid PN 1761 - 1762

 12   Ibid PN 1783 - 1784

 13   Ibid PN 2279 - 2284

 14   Ibid PN 1793 - 1798

 15   Ibid PN 1806

 16   Ibid PN 1816 - 1818 and Exhibit M3 at paragraph 7

 17   Ibid PN 1819 - 1821

 18   Ibid PN 1729 - 1730 and 1824 and Exhibit M3 at paragraph 26

 19   Ibid at paragraphs 28 - 30

 20   Ibid at paragraph 28 and Transcript PN 1841 - 1854

 21   Ibid PN 1855

 22   Ibid PN 1856

 23   Ibid PN 1858 - 1865 and 2293 - 2299

 24   Ibid PN 1866 - 1874

 25   Ibid PN 2308 - 2309

 26   Ibid PN 1882 - 1895 and 2229

 27   Ibid PN 1897, 1925 and 2217 - 2218

 28   Ibid PN 1932 - 1934 and 2229

 29   Ibid PN 1897 - 1908 and 2229

 30   Ibid PN 1901 - 1907 and 2223

 31   Ibid PN 2225 - 2227

 32   Ibid PN 1920 - 1921

 33   Ibid PN 1953 - 1982

 34   Ibid PN 1989 - 1996 and Exhibit M3 at paragraph 29(b)

 35   Ibid PN 2060 - 2062 and ibid at paragraph 32

 36   Ibid PN 2007 - 2021

 37   Ibid PN 2285 - 2287

 38   Ibid PN 2237 - 2241

 39   Ibid PN 2264 - 2269

 40   Ibid PN 2023 - 2039 and Exhibit M3 at paragraphs 33 - 34

 41   Ibid PN 2044 - 2046

 42   Ibid PN 2044 - 2057

 43   Exhibit M3 at Attachment 6

 44   Transcript PN 2125 - 2128 and 2150

 45   Ibid PN 2132 - 2134

 46   Ibid PN 2135 - 2147

 47   Ibid PN 2148, 2151 - 2156 and 2161

 48   Ibid PN 2164 - 2166 and 2207 and Exhibit M3 at paragraph 30

 49   Ibid PN 2209 - 2210

 50   Ibid PN 2213 and Exhibit M3 at paragraph 30

 51   Ibid PN 2211 and ibid

 52   Ibid PN 2212

 53   Ibid PN 2214 - 2215

 54   Ibid PN 2369 - 2372

 55   Ibid PN 2377 and 2373

 56   Ibid PN 2378

 57   Ibid PN 2380 - 2381

 58   Ibid PN 2382 - 2383

 59   Ibid PN 2384 - 2387

 60   Ibid PN 2391 and 2658

 61   Exhibit R1

 62   Transcript PN 2392 - 2406

 63   Ibid PN 2413 - 2414

 64   Ibid PN 2657

 65   Ibid PN 2594 - 2618

 66   Ibid PN 2620 - 2624

 67   Ibid PN 2627 - 2629

 68   Ibid PN 2418 - 2420

 69   Ibid PN 2421 - 2424 and 2658

 70   Ibid PN 2425 - 2428

 71   Ibid PN 2917 - 2918

 72   Ibid PN 2429 - 2430 and 2589 - 2593

 73   Ibid PN 2429 - 2436

 74   Ibid PN 2437 - 2444 and 2841 - 2842

 75   Ibid PN 2445 - 2448

 76   Ibid PN 2459 - 2460

 77   Ibid PN 2461 - 2462 and 2701

 78   Ibid PN 2645 - 2467

 79   Ibid PN 2471 - 2494

 80   Ibid PN 2495 - 2502

 81   Ibid PN 2481 and 2505

 82   Ibid PN 2506 - 2510

 83   Ibid PN 2511 - 2531 and 2538 - 2539

 84   Ibid PN 2919 - 2921

 85   Ibid PN 2540 - 2545

 86   Ibid PN 2546 - 2555

 87   Ibid PN 2556 - 2569

 88   Ibid PN 2571 - 2584

 89   Ibid PN 2634 - 2649

 90   Ibid PN 2650 - 2655 and 2703 - 2704

 91   Ibid PN 2922

 92   Ibid PN 2667 - 2669 and 2702

 93   Ibid PN 2656

 94   Ibid PN 2658 - 2664

 95   Ibid PN 2670 - 2675

 96   Ibid PN 2680 - 2696

 97   Exhibit M 3 at Attachment 6

 98   Transcript PN 2723 - 2727

 99   Ibid PN 2733 - 2738

 100   Ibid PN 2747 - 2748 and 2925

 101   Ibid PN 2728 - 2732 and 2751

 102   Ibid PN 2752

 103   Ibid PN 2753 - 2770

 104   Ibid PN 2773 - 2794

 105   Ibid PN 2795 - 2798

 106   Ibid PN 2800 - 2810

 107   Ibid PN 2811 - 2813

 108   Ibid PN 2814 - 2816

 109   Ibid PN 2817 - 2829 and 2923 - 2928

 110   Ibid PN 2832 - 2833

 111   Ibid PN 2834

 112   Ibid PN 2835 - 2836

 113   Ibid PN 2843 - 2856 and 2893 - 2905

 114   Ibid PN 2906 - 2907

 115   Ibid PN 2954 - 2958

 116   Ibid PN 2959 - 2960 and 3043

 117   Ibid PN 3045 - 3053

 118   Ibid PN 3054 - 3055

 119   Ibid PN 3056 - 3061

 120   Ibid PN 2961

 121   Ibid PN 2962 - 2963

 122   Ibid PN 3035 - 3038

 123   Ibid PN 2966

 124   Ibid PN 3007 - 3025

 125   Ibid PN 3062 - 3084

 126   Ibid PN 3269 - 3273

 127   Ibid PN 3276 - 3283

 128   Ibid PN 3419 and 3446

 129   Ibid PN 3348 and 3416

 130   Ibid PN 3419

 131   Ibid PN 3348 - 3349

 132   Ibid PN 3350 - 3351

 133   Exhibit M4

 134   Transcript PN 3355

 135   Ibid PN 3356 - 3363

 136   Exhibit M4

 137   Transcript PN 3725 - 3729

 138   Ibid PN 3729 - 3733

 139   Ibid PN 3363 - 3395

 140   Ibid PN 3395 - 3398

 141   Ibid PN 3399 - 3407

 142   Ibid PN 3408 - 3411

 143   Ibid PN 3412

 144   Ibid PN 3413

 145   Ibid PN 3417 - 3418

 146   Ibid PN 3680

 147   Ibid PN 3682

 148 CFMEU v AIRC (2001) 203 CLR 645

 149   Transcript PN 3682 - 3684

 150   Ibid PN 3685

 151   Ibid PN 3685 and the Applicant’s outline of submissions on jurisdiction and power to make interim orders, dated 8 April 2014 at paragraph 14

 152   Ibid PN 3685 - 3687

 153 (1992) 37 FCR 419

 154   [2014] FWCFB 1629

 155   Transcript PN 3690 - 3694

 156   Ibid PN 3695 - 3696

 157   Ibid PN 3697 - 3700

 158   Ibid PN 3701

 159   Ibid PN 3702 - 3706

 160 (2011) IR 327

 161   Transcript PN 3711 - 3712

 162   Ibid PN 3713

 163   Ibid PN 3714

 164 (1984) 295 CAR 188

 165   CEPU v Telstra Corporation Ltd (PR958009)

 166 (1987) 163 CLR 117

 167   PR908444

 168 (2001) 110 IR 322

 169   Transcript PN 3714 - 3721

 170   Ibid PN 3722

 171   Ibid PN 3493 - 3494

 172   Ibid PN 3496 and Further Submissions of the Respondent, dated 29 April 2014, at paragraphs 5 - 6

 173 (1984) 295 CAR 188

 174  Further Submissions of the Respondent, dated 29 April 2014, at paragraph 9

 175 (1992) 37 FCR 419

 176   Transcript PN 3497 - 3505 and Further Submissions of the Respondent, dated 29 April 2014 at paragraphs 10 - 14

 177 CFMEU v AIRC (2001) 203 CLR 645

 178   Transcript PN 3505 - 3506 and Further Submissions of the Respondent, dated 29 April 2014 at paragraphs 15 - 16

 179 (2009) 183 IR 256

 180   Transcript PN 3507 - 3508 and Further Submissions of the Respondent, dated 29 April 2014 at paragraph 17

 181   Ibid PN 3509 - 3510 and ibid at paragraphs 18 - 19

 182   Ibid PN 3511 - 3516 and ibid at paragraphs 20 - 23

 183  Ibid PN 3516 - 3525 and ibid at paragraphs 24 - 27

 184   Ibid PN 3525 - 3527, 355 - 3563 and 3565 and ibid at paragraphs 28 - 29

 185   Ibid 3528 - 3529 and 3554 - 3555 and ibid at paragraph 30

 186   Ibid PN 3531 - 3533 and 3564 and ibid at paragraphs 31 - 32

 187   Ibid PN 3589 - 3594 and ibid at paragraphs 36 - 39

 188   PR958009

 189   PR908444

 190 (2001) 110 IR 322

 191   Transcript PN 3629 - 3648 and Further Submissions of the Respondent, dated 29 April 2014 at paragraphs 43 - 47

 192   Ibid PN 3650 - 3652

 193   Ibid PN 3653

 194   Ibid

 195   Ibid PN 3654

 196   Ibid PN 3654 - 3655

 197   Ibid PN 3656

 198   Ibid PN 3657 - 3658

 199   Ibid PN 3662 - 3663

 200   Ibid PN 3658 - 3659

 201   Ibid PN 3659

 202   Ibid PN 3661 - 3662

 203   Ibid PN 3665 - 3666

 204   Ibid PN 3672 - 3673

 205   Ibid PN 2064 - 2066 and Exhibit M3 at paragraph 44

 206   Ibid PN 2082 - 2085

 207   Ibid PN 2087 - 2094

 208   Ibid PN 2067 - 2068 and Exhibit M3 at paragraphs 45 - 46

 209   Ibid PN 2070

 210   Ibid PN 2069

 211   Ibid PN 2071 and 2081

 212   Ibid PN 2072 - 2075 and 2288

 213   Ibid PN 2076 - 2077 and 2289 - 2291

 214   Ibid PN 2110

 215   Ibid PN 2983 - 2984 and 3204 - 3207

 216   Ibid PN 3208

 217   Ibid PN 2986 - 2988

 218   Ibid PN 2989 - 2994

 219   Ibid PN 2995 - 2996

 220   Ibid PN 2997 - 2999

 221   Ibid PN 3225 - 3231

 222   Ibid PN 3167 - 3169

 223   Ibid PN 3170 - 3172

 224   Ibid PN 3195 - 3196

 225   Ibid PN 3232 - 3242

 226   Ibid PN 3174 - 3190

 227   Ibid PN 3198 - 3203

 228   Ibid PN 3000 - 3001

 229   Ibid PN 3244 - 3264

 230   Ibid PN 3002 - 3004

 231   Ibid PN 3213 - 3222

 232   Ibid PN 3421 - 3425

 233   Ibid PN 3425 - 3443

 234   Ibid PN 3649

 235   Ibid PN 3649 - 3650

 236   Ibid PN 3663 - 3664

 237   Ibid PN 3669 - 3671

 238   Ibid PN 3665

 239   Ibid PN 3667 - 3668

 240   Ibid PN 2069

 241   Ibid PN 2104

 242   Ibid PN 2107

 243   Ibid PN 2101 - 2102 and 2107 - 2108

 244   Exhibit M3 at paragraph 15

 245   Ibid PN 2967 - 2970, 2972, 3295 and 3298 - 3299

 246   Ibid PN 2971

 247   Ibid PN 2979

 248   Ibid PN 2973 - 2976 and 3085 - 3090

 249   Ibid PN 3091

 250   Ibid PN 3101 - 3104

 251   Ibid PN 2977

 252   Ibid PN 2978 - 2979

 253   Ibid PN 2980

 254   Ibid PN 2981 - 2982, 3295 - 3296, 3311 - 3317 and 3325

 255   Exhibit M3 at Attachment 9

 256   Transcript PN 3092 - 3110

 257   Exhibit M3 at Attachment 10

 258   Transcript PN 3113 - 3126

 259   Ibid PN 3127 - 3131

 260   Ibid PN 3132 - 3142

 261   Ibid PN 3143 - 3152

 262   Ibid PN 3153 - 3166

 263   Ibid PN 3443 - 3445

 264   Ibid PN 3707 - 3709

 265   Ibid PN 3594 - 3603 and 3617 and Further Submissions of the Respondent, dated 29 April 2014 at paragraphs 40 - 42

 266   Ibid PN 3663

 267   Ibid PN 3671

 268   [2014] FWC 2822

 269   Transcript PN 3493 - 3494

 270   PR958009 at [8]

 271   Ibid at [9]

 272 (1987) 163 CLR 117 at 136 - 137

 273   PR550103

 274   [2014] FWC 2822 at [6]

 275   Transcript PN 3000 - 3001

 276   Ibid PN 3443 - 3444

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