Maritime Union of Australia v DP World (Fremantle) Limited

[2014] FWC 7338

[2014] FWC 7338

FAIR WORK COMMISSION

DECISION

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

Maritime Union of Australia
v
DP World (Fremantle) Limited
(C2014/805)

COMMISSIONER CLOGHAN PERTH, 01 DECEMBER 2014

Alleged dispute about any matters arising under the enterprise agreement.

[1] This is an application by the Maritime Union of Australia (MUA) for the Fair Work Commission (Commission) to deal with a dispute in accordance with a provision contained in an enterprise agreement pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[2] The MUA is in dispute with DP World (Fremantle) Limited (DPW or Employer).

[3] The ability to refer the matter to the Commission is contained in the DP World Fremantle Enterprise Agreement 2011 (Agreement) which reads as follows:

“22.4 Implementation of change

22.4.1 It is agreed between the parties that after the above notification and discussion have taken place that the Company, after careful consideration of the views of Employees may implement the change with thirty (30) days notice.

22.4.2 Where subject to the provisions of the clause, the Company exercises its rights to implement change in the workplace and the Union [MUA] disagrees with that decision, subject to there being no stoppage of work as a result of the decision of the Company, the Union may refer the matter in dispute to FWA for conciliation and arbitration if necessary.” (my emphasis)

[4] The employees have not engaged in a stoppage of work, accordingly, there is no conditional impediment to the dispute being referred to the Commission.

[5] The application was the subject of conciliation conferences but remained unresolved.

[6] At a hearing on 15 October 2014, the MUA was represented by Mr L Edmonds, National Legal Officer. Evidence was given on behalf of the MUA by Mr A Evans, Deputy Secretary, MUA, Western Australian Branch.

[7] DPW was represented by Mr D Perry of Counsel. Evidence was given by Mr M Hulme, Chief Operating Officer.

[8] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

APPLICATION TO COMMISSION

Initial application to Commission

[9] The initial application to the Commission sets out that the clause in dispute in the Agreement, is Clause 22.0 Introduction of Change.

[10] The application states that the dispute is about:

1. Clause 22 of the Agreement provides a process whereby change can be introduced into the workplace subject to compliance with the procedure laid out in clause 22;

2. The parties have been in discussions in relation to changes that are proposed to be introduced to the workplace including implementation of redundancies and changes to the roster;

3. The company has issued a 30 day notice to the workforce and the MUA, advising that the proposed changes will take effect from 9 June 2014;

4. The MUA disputes the proposed changes the company seeks to introduce.

[11] The relief sought in the application is, “The MUA seeks the Commission urgently conciliate and, if necessary, arbitrate the matters in dispute”.

[12] At the commencement of the hearing, the Employer sought that the MUA clarify its application in accordance with its outline of submissions which reads:

“1. ...
2. The Applicant contends that, pursuant to clause 22.5.4 of the Agreement, the new roster should not and could not have been implemented under the terms of the Agreement.

3. The Applicant seeks an order that, on a proper interpretation of the Agreement:

1) The Respondent must:

(a) Reinstate the roster that existed prior to the implementation of the change; and
(b) Compensate employees for any salary lost or deducted as a result of the change implemented by the Employer...” 1

Amended application

[13] Pursuant to the Employer’s request for clarity of the MUA’s application to the Commission, the MUA sought that its originating application be amended in the terms set out in paragraph [12].

[14] Pursuant to s.586(a) of the FW Act, I considered it appropriate that the originating application be amended to reflect the words in the MUA’s outline of submissions as set out in paragraph [12] above.

RELEVANT LEGISLATIVE FRAMEWORK

[15] Section 738 the FW Act which is as follows:

“738 Application of this Division

This Division applies if:

(a) ...
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) ...
(d) ...”

[16] Section 739 of the FW Act relevantly is as follows:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) ...

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

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

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

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

(6) ...”

RELEVANT PROVISIONS OF THE ENTERPRISE AGREEMENT

[17] Clause 22 of the Agreement is as follows:

“22.0 INTRODUCTION OF CHANGE

22.1 This Agreement recognises that Company management is obligated to carry out its responsibilities in accordance with Company policies and additionally, where such policies relating to production, program, organisation or technology may also affect the rights and interests of its Employees, Company management is also obligated to consider the rights and interests of its Employees in the implementation of such policies. Accordingly:

22.2 Company duty to notify

22.2.1 Where the Company has made a definite decision to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, the Company undertakes to notify the Employees who may be affected by the proposed changes and the National Secretary and relevant Branch Secretary of the Union.

22.2.2 Without limiting the generality thereof, significant effects includes termination of employment, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs and the use of contractors.

22.3 Company duty to discuss change

22.3.1 The Company undertakes to discuss with the Employees affected and the Union, inter alia, the introduction of the changes referred to in clause 22.2, the effects the changes are likely to have on Employees, measures to avert or mitigate any adverse effects of such changes on Employees and give prompt consideration to matters raised by the Employees and/or the Union in relation to the changes.

22.3.2 The discussion shall commence as early as practicable after a decision has been made by the Company to make the changes referred to in clause 22.2. For the purposes of such discussion, the Company undertakes to provide in writing to the Employees concerned and the Union, all appropriate information about the changes including the nature of the proposed changes, the expected effects of the changes on Employees and any other matters likely to affect Employees.

22.4 Implementation of change

22.4.1 It is agreed between the parties that after the above notification and discussion have taken place that the Company, after careful consideration of the views of Employees may implement the change with thirty (30) days notice.

22.4.2 Where subject to the provisions of the clause, the Company exercises its rights to implement change in the workplace and the Union disagrees with that decision, subject to there being no stoppage of work as a result of the decision of the Company, the Union may refer the matter in dispute to FWA for conciliation and arbitration if necessary.

22.5 Roster Changes

22.5.1 The rosters within this Agreement are based on current ship berthing arrangements at the commencement of this Agreement and the salaries reflect those rosters. The basis for any roster is to provide secure permanent rostered jobs and maintain as much regularity and predictability of working shifts as possible as well as the flexibility to ensure rostered shifts are generally worked within an Employee's primary skill.

22.5.2 When ship berthing arrangements change and the Company has an essential need for roster changes, the Union/Employees shall provide the flexibility to address the necessary changes. Any such changes will be implemented in accordance with clauses 22.3 and 22.4. In these circumstances, information relating to changed berthing arrangements will be provided to the Union and Employees to facilitate such discussions.

22.5.3 The requirement for roster change may not only be based on changed working arrangements, but also be based on maintaining and increasing, where appropriate, permanent rostered jobs and ensuring shifts are generally worked within an Employee's primary skill so that the integrity of the roster is maintained.

22.5.4 Any change agreed shall not be inconsistent with the intent of this Agreement, and shall not erode or diminish conditions of employment. Any change to a roster may occur only after all other mechanisms and alternatives have been considered and proved ineffective.”

RELEVANT BACKGROUND

[18] The Employer operates a stevedoring terminal in Fremantle, Western Australia. A stevedoring company is involved in the loading and unloading of ships.

[19] On 31 December 2013, the Employer lost what is described as its “K-Line” contract. The K-Line contract accounted for approximately 52% of the Employer’s revenue and container movements at the Fremantle terminal.

[20] DPW asserts that the loss of the contract was partly due to industrial action by the employees at the Fremantle terminal which had occurred since late October 2013. Those matters are not directly relevant to these proceedings but the Commission’s decisions can be found at [2013] FWC 10145 and [2014] FWCFB 19.

[21] Following the loss of the K-Line contract, the Employer advised its employees and the MUA on 22 January 2014, of its decision to downsize its workforce and introduce rostering arrangements to provide greater labour flexibility and availability.

[22] On 29 January 2014, the Employer met with MUA representatives and members of the Employee Representative Committee (ERC), to consult on its communication of 22 January 2014 described above.

[23] On 31 January 2014, all employees were provided with a summary of the consultation discussions which occurred on 29 January 2014.

[24] Between 29 January and 5 March 2014, a further three (3) meetings occurred between the Employer and the MUA and/or ERC.

[25] On 5 March 2014, DPW sent all Operations Fixed Salary Employees (FSEs) at the Fremantle terminal, correspondence calling for expressions of interest in voluntary redundancy.

[26] On 21 March 2014, DPW communicated with 34 FSEs and confirmed acceptance of their desire to take voluntary severance.

[27] On 17 April 2014, the Employer wrote to the 34 FSEs confirming their notice period and cessation date of employment due to redundancy. On the same day, DPW communicated with all employees regarding the proposed changes at the Fremantle terminal.

[28] On 22 April 2014, the Employer communicated with Mr P Crumlin, National Secretary of the MUA.

[29] On 6 May 2014, DPW provided 30 days notice of the implementation of the proposed workplace changes at the Fremantle Terminal to the National Secretary of the MUA and its affected employees.

[30] On 13 May 2014, the MUA filed this application in the Commission.

[31] On 25 May 2014, 15 Operations employees and one stores person ceased employment by reason of voluntary redundancy.

[32] On 26 May 2014, a conference in the Commission pursuant to this application failed to resolve the dispute.

[33] On 1 June 2014, a further 19 Operations employees ceased employment as a result of voluntary redundancy.

[34] On 3 June 2014, DPW posted a bulletin reminding employees of the proposed roster changes to take place on 9 June 2014.

[35] On 4 and 5 June 2014, DPW advised employees of their positions on the new roster.

[36] On 5 June 2014, the MUA made application to the Federal Court seeking injunctive relief to prevent DPW from implementing the new roster. The application was heard on 6 June 2014.

[37] On 7 June 2014, DPW again reminded employees of the new roster arrangements commencing on 9 June 2014.

[38] The new operations roster came into effect on 9 June 2014.

[39] The changes to the operations roster result in employees:

• working an additional 52 days where employees are currently rostered off;



• effectively being “on call” for the entire year including shifts where they are currently allocated and know that they are working; and



• having their salaries reduced to reflect the different rostered shifts.

APPLICANT’S CASE

[40] The Applicant contends:

• it was properly notified of the changes the Employer proposed to introduce but employees were not properly notified;



• that discussions occurred between the MUA and the Employer but that DPW failed to properly consider the measures raised by the MUA to mitigate or avert the proposed changes to be introduced by the Employer;



• that although the Employer may implement changes after considering the views of employees, DPW failed to properly consider the views of employees, and as such, should not have introduced the changes;



• that the new roster has eroded and diminished conditions of employment; and



• that the Employer failed to consider the alternatives raised by the MUA and that these alternatives had not been proven ineffective. This action is a necessary pre-condition to the introduction of changes to the roster.

[41] Further, and finally, Clause 22 of the Agreement should be given its plain and ordinary meaning within its context.

EMPLOYER’S CASE

[42] The Employer’s case can be categorised into two (2) areas as follows.

Jurisdiction of the Commission

[43] Subsection 739(3) of the FW Act limits the Commission’s jurisdiction to the powers provided by the parties to the Agreement.

[44] The powers given to the Commission by the parties to the Agreement is limited to “disputes arising in the workplace in regard to the application of this agreement or the National Employment Standards (NES)”.

[45] This dispute does not involve the NES.

[46] The Employer contends that this dispute is not a dispute “arising in the workplace in regard to the application of this Agreement”. Further, the Commission does not have the power to declare and enforce legal rights and obligations and relies upon Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16 at paragraphs [31] and [32] and Construction, Forestry, Mining and Energy Union v Geelong Grammar School (2002) 123 IR 216 at paragraphs [24] and [25].

[47] DPW contends that the orders sought by the MUA are a determination of existing legal entitlements, and that the Commission has no power to make such orders for the payment of monies as sought by the Applicant. The effect of such an order would constitute the exercise of judicial power and beyond the jurisdiction of the Commission.

[48] In summary, the Employer asserts that the application by the MUA concerns itself with the legal rights and obligations of the parties under the Agreement, and that is a matter for a court exercising judicial power of the Commonwealth.

Substantive matters of application

[49] The Employer submits that for good operational reasons, following the loss of the K-Line contract, DPW made a definite decision to implement the following operational changes to:

• reduce its workforce both in operations and maintenance areas;



• introduce new operations and maintenance rosters;



• adjust salaries to reflect the necessary roster changes;



• remove cargo care and R&D rosters;



• remove “Man on Deck” and “Yard Foreman” positions;



• remove overtime payments applicable to foreman handovers; and



• adjust staffing levels in various areas.

[50] The Employer has the power, pursuant to the Agreement, to introduce the changes set out in paragraph [49] above and did so in accordance with the procedures in Clause 22 of the Agreement.

CONSIDERATION

[51] Firstly, it is necessary to distinguish between applications made to the Commission pursuant to subclause 22.4.2 and Clause 24 of the Agreement.

[52] Applications pursuant to Clause 24: Dispute Resolution (DSP) are common and dealt with routinely by the Commission.

[53] However, referral to the Commission pursuant to a DSP in an enterprise agreement is not the only means by which dispute resolution can be achieved. Subsection 738(b) of the FW Act enables disputes to be referred to the Commission pursuant to any term in an agreement, including the mandatory term required pursuant to subsection 186(6) of the FW Act which is contained in Clause 24 of the Agreement.

[54] A term of this Agreement is that:

“22.4.2 Where subject to the provisions of the clause, the Company exercises its rights to implement change in the workplace and the Union disagrees with that decision, subject to there being no stoppage of work as a result of the decision of the Company, the Union may refer the matter in dispute to FWA for conciliation and arbitration if necessary.”

[55] Accordingly, the power given to the Commission is pursuant to subclause 22.4.2 of the Agreement. Subject to there being no stoppage of work, the parties have agreed that the Commission can arbitrate “the matter in dispute”.

What is the matter in dispute?

[56] The Applicant, having amended its application, has essentially narrowed the dispute down to the following:

“MR EDMONDS: ...What you're being asked to do, sir, is to look at the conduct that preceded the change being put in the workplace on 9 June 2014 and you're being asked to determine whether or not the conduct that preceded that change complied with the terms of the enterprise agreement and we say that it doesn't. We say, sir, that clause 22 of the enterprise agreement has a process for the implementation of change in the workplace..and the fact that that did not comply with clause 22.5 of the enterprise agreement.” 2

[57] To determine this question, is essentially a finding of fact.

Has the Employer complied with Clause 22 of the Agreement?

Subclause 22.1 - Preamble

[58] The preamble acknowledges the validity of management to carry out its responsibilities in conducting its business. However, where that conduct affects the rights and interests of employees, it is obligated to consider those rights and interests when introducing change in the workplace.

Subclause 22.2 - Company duty to notify

[59] The Applicant does not dispute that the Employer made a definite decision to introduce change that was likely to have a significant effect on the affected employees 3.

[60] The Applicant concedes that it was notified of changes but disputes that employees were properly notified 4.

[61] Prior to the decision to introduce the changes, the Employer, on 7 January 2014, confirmed with all DPW Fremantle employees the loss of the K-Line contract. Due to the loss of contract, the Employer, in its communication to employees, stated that it would conduct a review of its Fremantle terminal business. DPW stated that once the review had been completed, the Employer would communicate to employees the actions required as a result of the review.

[62] On 22 January 2014, the Employer communicated to all relevant DPW Fremantle employees that the review had been completed, and in light of the significant loss of volume and revenue from the K-Line contract, it had made a definite decision to:

“(a) reduce its workforce numbers in both Operations and Maintenance;

(b) introduce new General and Operations and Maintenance rosters;
(c) salary variations to reflect roster changes;
(d) remove the Cargo Care and R&D rosters;
(e) remove overtime payments applicable to shift handovers;
(f) amend manning levels; and
(g) other changes that may arise out of discussions with ERC and State Branch officials.” 5

[63] The MUA does not submit what “properly” means.

[64] “Properly”, as defined by the Australian Concise Oxford Dictionary (ACOD) means “fittingly, suitably, accurately and correctly”.

[65] On the evidence, I find that the Employer properly notified its employees on 22 January 2014 of the proposed changes in accordance with subclause 22.2 of the Agreement.

Subclause 22.3 - Company duty to discuss change

[66] The MUA concedes that the Employer discussed the proposed changes, however, it “failed to properly consider measures raised by the Applicant to mitigate or avert the adverse effects of the proposed changes” 6.

[67] The written evidence produced to the Commission demonstrates a large volume of meetings between the Employer and the MUA and ERC.

[68] The ACOD defines “consider” as including “contemplate mentally; weigh merits of (course of action, claim); give mental attention to”.

[69] The oral evidence of Mr Evans is that the Employer considered and made a number of changes to its original proposal for changes 7 as set out in paragraph [62].

[70] The Employer considered and made the following changes to its original proposals:

• reversed its decision that there would be no voluntary redundancies 8;

all expressions of interest for voluntary redundancy were accepted 9;

reversed its decision on the abolition of the two storemen positions and only made one redundant 10;

reversed its decision to abolish the positions of Man on Deck and Yard Foreman 11;

handover arrangements for foremen 12;

the outsourcing of Cargo Care 13; and

reduced the number of redundancies 14.

[71] All of the changes to the Employer’s original proposal were advantageous to the employees 15.

[72] The total picture is best expressed by Mr Evans when he gave evidence in cross examination:

“...those changes that you refer to aren’t actually matters for dispute. The matter for dispute is the roster” 16 (my emphasis).

[73] Consequently, when the MUA submits that the Employer “failed to properly consider measures raised by the Applicant to mitigate or avert the adverse effects of the proposed changes”, it means only those areas where DPW has not changed its position from its original proposal.

[74] Essentially, the MUA is being selective on where the Employer “failed to properly consider”. “Selective” in the sense that the Employer has properly considered measures to mitigate or avert the adverse consequences of the proposed changes which the MUA agrees with, but failed to properly give consideration to the roster and any other matters which the MUA disagrees with. I am not persuaded by a self serving and self defining approach as to whether the Employer has fulfilled its obligation to consider the matters raised by the MUA/employees in relation to the proposed changes.

[75] On the evidence, I find that the Employer has considered the changes it initially proposed to introduce, and modified or reversed its position on those changes which averted or mitigated the adverse effects on employees. The Employer has considered its position regarding rosters but is not prepared to make a change on that proposal.

Subclause 22.4 - Implementation of change

[76] The Applicant agrees that the Employer may [can] implement the changes after:

• notification of the changes has been given;



• discussions have taken place;



• it has considered and proposals by MUA/employees; and



• 30 days notice has been given.

[77] Of the above conditions, the MUA only takes issue with whether the Employer has properly given consideration to the views of the MUA/employees. I have considered this issued under the previous subheading in paragraphs [67] to [76] and it would serve no useful purpose in repeating my reasons for concluding that the Employer has considered any proposals by the MUA/employees.

[78] Accordingly, and on the evidence, I find that the Employer has implemented the changes in accordance with subclause 22.4 of the Agreement.

Subclause 22.5 - Roster changes

[79] Paragraph 22.5.1 sets out that rosters within the Agreement are based on current ship berthing arrangements existing at the commencement of the Agreement. Further, that the salaries reflect those rosters. Put differently, rosters reflect the berthing of ships and that the salaries reflect those rosters.

[80] In paragraph 22.5.2, where the ship berthing arrangements change and the Employer has an essential need to change the roster, the MUA/employees “shall” provide the flexibility to address the necessary changes. The words shall and address impose a mandatory obligation upon the MUA and the relevant employees, to deliver flexibility where there is an essential need to change the roster.

[81] However, irrespective of any obligation upon the MUA/employees to deliver flexibility where there is a need to change the roster, the introduction of the roster changes can only be implemented in accordance with Clauses 22.3 and 22.4 of the Agreement. I have already found that the Employer has implemented the changes in accordance with Clauses 22.3 and 22.4 of the Agreement.

[82] It would appear that paragraph 22.5.3 is not contentious in this dispute. Put shortly, paragraph 22.5.3 states that, while there may be a case for the roster to change because of ship berthing arrangements, it is not the only circumstances where changes to the roster can be made. Changes can be made for such reasons associated with maintaining or increasing permanent rostered jobs or to accommodate the employees primary skill base.

[83] I now turn to paragraph 22.5.4 of the Agreement.

[84] The construction of paragraph 22.5.4 of the Agreement reminds me of the expression that “a camel is a horse designed by a committee”.

[85] Both parties urged me to adopt the plain and ordinary meaning of the words in the Agreement. The opening sentence of paragraph 22.5.4 of the Agreement reads:

“Any change agreed shall not be inconsistent with the intent of this Agreement...”

[86] Firstly, there is no agreed change to the roster; that is why the matter is the subject of dispute and this application. Secondly, while it is possible that the parties could agree to roster changes that are inconsistent with the intent of the Agreement, it would be remarkable that they would do so.

[87] The opening sentence of paragraph 22.5.4, as set out in paragraph [85] above, continues:

“...and shall not erode or diminish conditions of employment.”

[88] The occasion where “and shall not erode or diminish conditions of employment” applies, is at the time the change to the roster is agreed. As the changes to the roster are not agreed, the preceding words appear irrelevant, as does the condition that any agreed change not be inconsistent with the intent of the Agreement.

[89] Put differently, the opening sentence of paragraph 22.5.4 sets out what appears to be incongruous conditions for the circumstance when an agreed change to the roster comes into effect. However, in these circumstances, the pre-conditions for an agreed change to the roster are irrelevant because there is no agreement between DPW and the MUA on changes to the roster.

[90] For the conditions to be operative in paragraph 22.5.4, the change to the roster is not “any change” but any “agreed” change. The verb “agreed” modifies the character of change [to the roster]. It is no longer any change, but only those changes that are agreed between the parties.

[91] The submission by the MUA that any changes to the roster cannot erode or diminish an employee’s salary is, in the context of this application, an argument about compliance with the Agreement. However, the jurisdiction which would deal with enforcement would need to be persuaded that provisions of paragraph 22.5.4 are employee specific, and not within the overall context of the Agreement. Further, any argument regarding individual employee applicability would also need to surmount the obstacle of the circumstances of an agreed change to the roster - which is clearly not present.

[92] I now turn to the final sentence of paragraph 22.5.4 of the Agreement which reads:

“Any change to a roster may occur only after all other mechanisms and alternatives have been considered and proved ineffective”.

[93] The condition of this sentence is that “any change” to a roster can only take effect if “all other mechanisms and alternatives have been considered and proved ineffective”.

[94] What are the “other mechanisms and alternatives”? One reading of the sentence is that it means something that operates in place of, or outside of, a roster change. It would appear that there have been a number of workplace operational mechanisms considered and implemented. However, for the Employer, a roster change is also essential.

[95] Another meaning or aim of the term contained in the final sentence of paragraph 22.5.4 of the Agreement, is that alternative roster changes must be considered and proved ineffective before the actual roster change is introduced. In this respect, there are competing alternatives to the roster changes necessary as a result of the loss of the K-Line contract and the Employer has determined that the most appropriate, after consideration of the alternatives, is that which it has introduced.

[96] The second sentence or term of paragraph 22.5.4 of the Agreement does not contain the word “agreed” to a change in the roster. However, in the context of the first sentence of paragraph 22.5.4 and the condition “may only occur”, appears to denote that consideration of “alternatives” being proved ineffective, is also applicable to “agreed” changes to the roster.

CONCLUSION

[97] I wish to conclude by returning to the beginning and whether the conduct of the Employer, which preceded the change in the roster, was carried out in accordance with the provisions in Clause 22 of the Agreement.

[98] Firstly, the MUA asserted that there is not a general power to change the roster in the Agreement 17. I agree. The parties have agreed that rosters can be changed when there is a change in ship berthing requirements. However, this is not the only circumstance. A change to the roster can also occur, subject to certain conditions being met, to maintain or increase permanent rostered jobs. Changes to the roster can also eventuate to ensure that shifts are ordinarily worked within the employee’s primary skill set.

[99] It should not be overlooked that subclause 22.5 is entitled “Roster Changes” and Clause 22 of the Agreement is designated “Introduction of Change”.

[100] While Mr Edmonds is correct, in his submission, that the Agreement is binding on the parties for a period of three (3) or four (4) years, it is not true to say that the Employer is “stuck” with the “bargain” 18. The parties acknowledged, at the time of making the Agreement, circumstances can change particularly given the nature of the stevedoring industry and have agreed, in certain situations, for the roster to be changed.

[101] Accordingly, there can be no argument that the roster cannot be changed.

[102] The situation faced by the Employer is that it lost a major contract which accounted for approximately 50% of revenue and container volume at the Fremantle terminal 19. The DPW Fremantle business is expected to suffer in excess of a $10M loss20 this financial year and the proposed roster will have a positive financial year impact of between $1M and $1.4M21.

[103] Putting aside the financial impact, there was clearly a change in the ship berthing arrangement and the Employer had an essential need to make roster changes. I do not consider there can be any dispute that the circumstances existed to enliven the change in roster arrangements permitted in Clause 22 of the Agreement.

[104] With respect to the introduction of changes, other than the roster, subject to the Employer complying with certain procedural requirements of Clause 22 of the Agreement, the Employer can introduce the changes without the agreement of the MUA or its employees.

[105] However, the Employer and MUA cannot agree on the change to the roster.

[106] With respect to the introduction of roster changes, the MUA put the position:

“There is a roster in the enterprise agreement already. It's been agreed to. It's been bargained for and it's been agreed to. The capacity to bargain and agree to things is a fundamental part of the whole process and essentially the parties take a gamble every time they reach agreement on something...That's the impact of reaching an agreement with an enterprise agreement, is the parties are stuck with that. The parties are bound by that for three or four or five years or one year or two years or whatever it is. They're stuck to that bargain that they make.

Now, it's recognised in clause 22 that there are particular things that may occur beyond the power of the employer with respect to ship berthing arrangements that may need a change to the roster itself. But there are particular circumstances or particular conditions that apply to that change to the roster and those particular conditions are designed to protect the integrity of the agreement itself, to protect the integrity of the bargain, protect the integrity of the bargain that the MUA and the employees have reached with DP World. So that DP World does not have carte blanche to say, "Well, we didn't want that roster and we didn't want that salary but we agreed to it and now we're introducing a change, right now, because there's been a slight change to the ship roster, sorry to the berthing arrangements. So now we're going to change the roster to what we did want." That's not the way this process works. The roster and the salary are something that have been bargained for. They can only change it in very limited circumstances.

Now, 22.4 puts in place a mechanism whereby other changes can be put into place. A change to the drug and alcohol procedure, a change to the type of vehicles in the workplace, a change to the type of crane, a change to the way work is structured or organised or those sorts of things are contemplated by 22.4. The company, we say, is not obliged in those circumstances to reach agreement with the union or to prove the union's alternatives to be not, to be essentially not useful or viable before they implement that change. But that's in contrast with the change to the rosters where they are obliged to prove that.” 22

[107] If the MUA is correct and any change to the roster is designed to protect the integrity of the “bargain”, it is notable that under the heading Introduction of Change, the first sentence in subclause 22.1 reads “This Agreement recognises that Company management is obligated to carry out its responsibilities in accordance with company policy...” and further, in subclause 22.2 of Clause 22, it is “where the Company has made a definite decision to introduce changes.”

[108] Put simply, Clause 22 of the Agreement recognises, notwithstanding the “integrity” of the bargain, that over the life of the Agreement, the Employer can (subject to compliance with procedural requirements) make changes to what existed at the time of reaching agreement - including roster changes.

[109] The Employer does not have “carte blanche” but it does have the right to make changes if the required conditions are met.

[110] The MUA acknowledged that the ship berthing arrangements have changed and the roster arrangements have to change, however, they maintain:

“That’s the point of...the roster change clause at 22.5...if ship berthing arrangements change out of the control of the employer then we may need to change the roster itself. But the fundamental items which underpin the roster, the conditions of employment have to be maintained. They can't be eroded or diminished. And before you change the roster, before you change a fundamental term of the agreement you have to try everything else first and prove that to be not effective. And only in those circumstances can you then change the roster. That's the point of it.” 23

[111] However, the circumstance in Clause 22 of the Agreement falls within the designation “Introduction of Change”. Change means, according to the ACOD, “becoming different; substitution of one for another”. The view of the MUA is that the roster can be changed, however, the conditions of employment which underpin the previous roster, must be maintained and cannot be eroded or diminished. This position, as was discussed between the parties in the hearing, is debatable but is not a matter which I have to determine.

[112] When asked the meaning of “agreed” in subclause 22.5.4 of the Agreement, Mr Edmonds submitted, “it doesn’t appear to make much sense. It’s quite possibly a hangover from a previous clause”.

[113] Mr Edmonds is correct that it is a word surviving from previous clauses in industrial instruments. However, Clause 22 of the Agreement has remained almost intact since, at least, the P&O Ports Fremantle Terminal Enterprise Agreement 2003. I say “almost intact” because there has been: grammatical changes in subclause 22.4.1; extension of seven (7) days notice to 30 days in subclause 22.4.1; a change in designation of “Australian Industrial Relations Commission” to FWA in subclause 22.4.2; the introduction of a new sentence in subclause 22.5.2 and the insertion of the word “roster” before “change” in subclause 22.5.3 of Clause 22 of the Agreement. Importantly, subclause 22.5.4 of Clause 22 has remained intact for at least 11 years.

[114] I am unable to accept that the word “agreed” in subclause 22.5.4 of the Agreement was an inadvertent transposing error when enterprise agreements have been replaced. Clause 22: Introduction of Change of the Agreement, is the fourth iteration, at least, and appears to have been examined on at least four (4) occasions and has remained intact, despite other changes to the clause.

[115] The plain and ordinary meaning of “agreed” is where both parties come to the same conclusion; that is, not the circumstances of the roster change in this dispute. Effectively, the MUA is asking the Commission to apply and give meaning to the conditions in subclause 22.5.4 of the Agreement to circumstances which do not exist - that is, an agreed change to the roster.

[116] I am unable to agree to such a request as it would change the whole meaning of subclause 22.5.4 of Clause 12 of the Agreement.

[117] While it may be circular, we call things “agreed” because they are “agreed”. However, in this case, the word “agreed” is informative of what conditions apply to the “agreed” changes to the roster.

[118] Alternatively, Mr Edmonds submitted:

“...why you would place a series of conditions on agreed changes but no conditions on changes that aren't agreed. Say if the changes aren't agreed you can implement anything but if they are agreed it's subject to these certain conditions. It just wouldn't make any sense...” 24

[119] However, this is not a characterisation which the Employer agrees with. For DPW, it submits that it is beyond the jurisdiction of the Commission to force the parties to reach agreement on the roster changes pursuant to s.739(5) of the FW Act, and consequently, apply those conditions attached to subclause 22.5.4 of Clause 22 Introduction of Change. I agree.

[120] Both parties referred me to the statement of Madgwick J on Kucks v CSR as follows:

“But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well understood words are in general to be accorded their ordinary or usual meaning.”

[121] Having considered the statement of Madgwick J, there is nothing in the terms of Clause 22: Introduction of Change, which contemplates the circumstances where the parties do not agree on proposed changes to the roster. In such circumstances, I express no view, nor should I, as to what the parties would have agreed to if they had turned their minds to the issue. In my view, the remedy to the situation lies in the current round of bargaining and the replacement enterprise agreement to the current Agreement.

[122] In conclusion, I return, as requested by the MUA, to determine whether or not the conduct that preceded the change in the roster complied with the terms of Clause 22 Introduction of Change. I am satisfied, for the above reasons, that to the extent of the provisions contained in Clause 22 Introduction of Change, the Employer has complied with its terms when implementing the change to the roster on 9 June 2014.

[123] Pursuant to subclause 22.4.2 of the Agreement, this is my determination of the Employer’s decision which was referred to the Commission by the MUA for arbitration.

COMMISSIONER

Appearances:

L Edmonds on behalf of the MUA.

D Perry of Counsel for DP World (Fremantle) Limited.

Hearing details:

2014:

Perth,

15 October.

Printed by authority of the Commonwealth Government Printer
<Price code C, PR556694>

 1   Exhibit A1

 2   Transcript PN76 and PN77

 3   Exhibit R4(10)

 4   Exhibit A1(13)

 5   Exhibit R6(3)

 6   Exhibit A1(14)

 7   Transcript PN176

 8   Transcript PN178

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 11   Transcript PN184

 12   Transcript PN187

 13  Transcript PN188

 14   Transcript PN192

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 16   Transcript PN207

 17   Transcript PN296

 18   Transcript PN931

 19   Exhibit R6

 20   Transcript PN589

 21   Transcript PN473

 22   Transcript PN931 to PN933

 23   Transcript PN991