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

[2014] FWC 2822

[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

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<Price code A, PR550101>