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

[2014] FWC 2822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

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

COMMISSIONER CRIBB

MELBOURNE, 30 APRIL 2014

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

[1] The Maritime Union of Australia (MUA, union) has sought orders in respect of the labour model for the changed business and the selection criteria for involuntary redundancies by the company.

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

(a) Labour Model

[3] 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.”

[4] I decline to issue the order sought. There is not a sufficient evidentiary basis on which to supplant the company’s decision about the appropriate labour model for its business moving forward. There would have to be strong evidence before the Commission would step into the shoes of the company and determine that either the union’s or the Commission’s view about staffing was the correct model, rather than that of the company.

(b) Conduct of performance assessments

[5] 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.”

[6] I have formed the view that the issue about who should conduct the performance assessments is not covered by the terms of clause 10.3 of the Patrick Bulk and General Melbourne Enterprise Agreement 2012 1 (the Agreement). This clause refers to the size and composition of the workforce but not to identity.

[7] I have been persuaded that it would be unreasonable not to have the input of the people, who have the most knowledge of the employees’ skills and work performance, in the assessment process, in addition to the Shift Supervisors. I also accept that it would not be appropriate for forepersons to assess each other’s performance.

[8] Therefore, I order that: For those employees who report to forepersons, the forepersons, in conjunction with the Shift Supervisors, will conduct the performance assessments of these employees.

[9] An order 2 to this effect will be issued separately.

(c) Selection criteria

[10] 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%.”

[11] I have not been convinced that it is necessary to interfere with the decision of management in respect of the selection criteria. This is because what they are proposing is neither unfair nor unreasonable

[12] Finally, I propose to adopt Mr Follett’s suggestion, made at the end of the hearing on 29 April 2014, that full written reasons for this decision, together with the jurisdiction and interim orders decisions (of 8 May and 10 May 2014), be issued as one decision.

Appearances:

Mr J Fetter of counsel for the MUA

Mr M. Follett of counsel for the Respondent

Hearing details:

2014

Melbourne.

28, 29 April

1 AE898760

2 PR550103

Printed by authority of the Commonwealth Government Printer

The case of Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd involved a dispute between the union and the company over the latter's proposed changes to its workforce. The matter was heard in the Federal Court of Australia, where the union sought an injunction to prevent the company from proceeding with its plans. The legal issues at hand centred on whether the company's actions constituted an industrial change and if the union had the right to seek an injunction to halt such changes.

The court examined the scope of the term "industrial change" and considered whether the company's plans constituted a change that would significantly affect the workforce. The court also had to determine if the union had standing to seek an injunction to prevent the company from implementing the proposed changes. The Maritime Union of Australia argued that the company's plans constituted an industrial change and that the union had the right to seek an injunction to prevent such changes from occurring.

The court found that the company's plans did constitute an industrial change and that the union had the right to seek an injunction to prevent the implementation of the proposed changes. The court held that the term "industrial change" was not limited to changes in the nature of the work or the skills required, but also included changes that would significantly affect the workforce. The court further found that the union had standing to seek an injunction to prevent the company from implementing the proposed changes. The court granted the union's application for an injunction, preventing the company from proceeding with its plans.

The court's decision in this case highlights the importance of considering the scope of the term "industrial change" and the rights of unions to seek injunctive relief to prevent significant changes to the workforce. The court's finding that the union had standing to seek an injunction also underscores the importance of protecting the rights of workers and their representatives in the context of industrial relations.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established