Maritime Union of Australia, TheandTransport Workers' Union of AustraliavPort Waratah Coal Services Limited

[2015] FWC 1462

[2015] FWC 1462

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Maritime Union of Australia, The
and
Transport Workers' Union of Australia
v
Port Waratah Coal Services Limited
(C2013/7609 & C2013/7746)

COMMISSIONER CAMBRIDGE SYDNEY, 13 MARCH 2015

Alleged dispute about matters arising under an enterprise agreement.

[1] These matters involve applications made pursuant to section 739 of the Fair Work Act 2009 (the Act), for the Fair Work Commission (the Commission), to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The applications were lodged at Sydney on 10 and 18 December 2013. The applications were made by the Maritime Union of Australia (the MUA) and the Transport Workers’ Union of Australia (the TWU) and were taken against Port Waratah Coal Services Limited (the employer).

[2] The Commission is empowered to deal with these matters by virtue of a DSP found at Clause 9 of the Port Waratah Coal Services Limited Enterprise Agreement 2009 (the 2009 Agreement). The essence of the dispute involves a claim by the MUA and the TWU (collectively referred to as the Unions) about the staffing numbers at two terminals operated by the employer in Newcastle, namely, the Carrington Coal Terminal and the Kooragang Coal Terminal.

[3] The matters were the subject of unsuccessful conciliation and the arbitration of the substantive matters in dispute has involved a Hearing conducted in Newcastle on 27 and 28 October 2014. At the Hearing, the Commission granted permission for the Unions to be represented by Mr T Slevin, barrister, and permission was also granted for the employer to be represented by lawyers with Mr Y Shariff, barrister, appearing for the employer.

[4] Shortly after the commencement of proceedings on the first day of Hearing an issue arose as to the practical utility of any remedy that might be provided in satisfaction of the claims made by the Unions. Mr Shariff contended that the claims made by the Unions could not be particularised as obligations or rights arsing from any terms contained in the 2009 Agreement. Further, the Commission inquired as to the practical consequences of any interpretation and determination of terms contained or implied in the 2009 Agreement, in circumstances where that Agreement had passed its nominal expiry date of 6 October 2012, and the Parties were actively engaged in enterprise bargaining for a replacement Agreement.

[5] Mr Slevin said that the 2009 Agreement continued to operate and the Unions sought to agitate what he described as “an old-fashioned arbitration” which involved, as he put it, “...we’ve got a blue at the workplace and we’d like some help sorting it out.” Consequently, the Hearing continued and various witnesses were called to provide evidence for the respective Parties. Following the evidence, the barristers for each side made oral submissions which amplified documentary material.

[6] The issue of the practicality of any remedy was revisited towards the conclusion of proceedings on the second day of the Hearing. Mr Slevin acknowledged that if the 2009 Agreement was replaced by a new Agreement the applications in these matters “would fall” and any Decision particularly as to any remedy would become a “dead letter”.

[7] On 12 March 2015, the Commission issued a Decision [2015 FWCA 1688] approving of the Port Waratah Coal Services Limited Enterprise Agreement 2015 (the 2015 Agreement). The 2015 Agreement has replaced the 2009 Agreement.

[8] Consequently, the applications made in these matters no longer have any capacity for practical remedy to be provided and must be dismissed accordingly. An Order dismissing the applications shall be issued separately.

COMMISSIONER

Appearances:

Mr T Slevin of Counsel, together with Mr A Guy of the Transport Workers’ Union of Australia and Mr D Outram of the Maritime Union of Australia.

Mr Y Shariff of Counsel, together with Ms K Dommerson of Herbert Smith Freehills for Port Waratah Coal Services Limited.

Hearing details:

2014.

Newcastle:

October 27, 28.

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<Price code A, PR561578>