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

[2017] FWC 2460

[2017] FWC 2460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Patrick Stevedores Holdings Pty Ltd
v
Maritime Union of Australia, The
(C2017/2103)

Fair Work Act 2009
s.739—Dispute resolution

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

(C2017/2188)

DEPUTY PRESIDENT BOOTH SYDNEY, 4 MAY 2017

Application for an order that industrial action stop, not occur and not be organised and an application for the Fair Work Commission to deal with a dispute

[1] This decision concerns two applications in relation to Patrick Stevedores Holdings Pty Ltd (Patrick).

[2] One application (s.418) was made by Patrick on 20 April 2017 pursuant to s.418 of the Fair Work Act (the Act). In that application Patrick sought an order that industrial action must stop, not occur and not be organised.

[3] In the s.418 application Patrick included in the grounds being relied upon that there was a complete stoppage of work by employees at its Port Botany terminal, that employees are rostered to unload and load containers onto trucks and trains at a railyard that forms part of the Port Botany Terminal and that employees refused and continue to refuse to unload Qube trucks that arrive at the railyard.

[4] The other application (s.739) was made by the Maritime Union of Australia (the MUA) on 26 April 2017 pursuant to s.739 of the Act.

[5] In the s.739 application the MUA said the dispute was about Patrick directing employees to perform work different (sic) to accepted practices and a suspected breach of the Patrick Terminals Enterprise Agreement 2016 (the Agreement).

[6] The s.418 application was listed for hearing before me on 20 April 2017.

[7] I issued an interim order (PR592024) in accordance with s.420 of the Act because I was unable to determine the application within two days and I was satisfied that it was not contrary to the public interest to do so.

[8] The s.418 application was listed for hearing on 24 April 2017. It was adjourned on that day at the request of the parties and was listed for programming before me on 28 April 2017. On that occasion the MUA sought to amend the interim order made on 20 April 2107. That application was declined.

[9] The s.739 application was the subject of a conference before Deputy President Sams on 27 April 2017 in an attempt to resolve the dispute. Unfortunately the dispute was not resolved in conciliation. The MUA applied for an interim order and Deputy President Sams heard the application on 28 April 2017.

[10] Deputy President Sams issued his decision on the same day declining the application for an interim order.

[11] The s.739 application was also listed for mention before me at the same time as the s.418 application on 28 April 2017.

[12] Also listed for mention on that day was another s.739 application made by the MUA on 17 March 2017 concerning Patrick.

[13] In this application the MUA said the dispute was about the failure by Patrick to consult employees and the MUA about the sub-leasing of the receival and delivery facility to Qube in accordance with clause 14.4 and 14.5 of the Agreement.

[14] This application was the subject of two conferences before me on 10 and 26 April 2017 in an attempt to resolve the dispute.

[15] Patrick submit that each of the three applications originate from the same underlying factual circumstance being:

“a decision by Patrick Stevedores Operations No.2 Pty Ltd, the associated entity of Patrick which leases the land on which the Terminal is situated, to sub-lease an undeveloped area within the Terminal to Qube Logistics (NSW) Pty Ltd (Qube) in order for Qube to operate an empty container park.”

[16] This appears to me to be uncontroversial between the parties.

[17] At the mention on 28 April 2017 it was agreed that the three applications would be listed together for arbitration on 3 May 2017 and evidence in one would be considered evidence in the other.

[18] On 2 May 2017 the MUA discontinued the s.739 application in relation to the failure to consult.

[19] The two matters before me for determination were the s.418 application and the s.739 application. This decision is in relation to both applications.

[20] Permission to be legally represented pursuant to s.596 of the Act was given to Patrick and the MUA because I considered that hearing would be more efficient taking into account the complexity the combination of these two matters.

[21] Evidence on behalf of Patrick was given by:

Name	Position	Date of witness statement/s
(a)	Bruce Guy	Terminal Manager	27 April 2017 and 1 May 2017
(b)	Jarrad Graham	Automation and Landside Manager	28 April 2017 and 1 May 2017
(c)	Malcolm Rowe	Continuous Improvement Manager	1 May 2017
(d)	Daniel Jonathan Laroche	Logistics Manager	1 May 2017
(e)	Peter Balzen	Grade 6 Permanent Operations employee	27 April 2017

[22] With the exception of Mr Rowe, these witnesses were all cross-examined by Mr Crawshaw for the MUA.

[23] There were no witnesses on behalf of the MUA.

[24] I think that it is important to determine a s.418 application as soon as possible even when an interim order is in place. Therefore I am writing this decision immediately following yesterday’s hearing and without the benefit of transcript. I do not refer to all the submissions of the parties but I have taken all the evidence and submissions into account in making this decision.

s.418 application

[25] At yesterday’s hearing Patrick said, in effect, that I am obliged to make an order that industrial action must stop, not occur and not be organised because the conditions of s.418(1) of the Act are satisfied.

[26] Section 418(1) of the Act is in the following terms:

(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.

Note: For interim orders, see section 420.

[27] The order sought by Patrick includes a description of the industrial action that must stop, not occur and not be organised corresponding to the four “species” of industrial action it says is occurring or has occurred:

[28] The four species are as follows:

• industrial action in the form of a stoppage of work or refusal to attend for, or perform work, at the Port Botany terminal;



• industrial action in the form of a ban on the loading or unloading of trucks arriving at the railyard of the Port Botany Terminal;



• industrial action in the form of a ban on the working of overtime;



• industrial action in the form of a ban on the performance of shift extensions.

[29] The order also includes a requirement that the MUA must not organise any industrial action as described above.

[30] Industrial action is defined in s.19 of the Act:

Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited , PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).

[31] I will deal with each of the categories set out by Patrick in turn.

Stoppages of work

[32] The uncontested evidence of Mr Guy is that following a toolbox meeting held at the commencement of the evening shift on 20 April 2017, all of the 20 April evening shift employees who were due to commence at 2pm waited in the crib room and refused to perform any work. By around 4.05pm nearly all of the 20 April evening shift employees had departed the Port Botany terminal.

[33] Mr Guy also gave evidence that the 20 April night shift employees who were due to commence at 10pm refused to commence work. At about 10.15pm 20 April night shift employees started to leave the terminal and by 10.20pm all but three had left the site.

[34] Mr Guy also gave evidence that that 21 April day shift employees who were due to commence at 6am refused to commence work. At about 6.20am 21 April day shift employees refused to leave the crib room.

[35] Mr Guy also gave evidence that 21 April day shift employees on the lashing gang who were due to commence at 7am refused to perform work on the shift.

[36] I consider that each of these instances meets the definition of industrial action found in s.19 of the Act.

[37] Patrick acknowledges that at the time of the hearing of this matter there are no stoppages happening, however it says I should find that it is probable that they will occur in the future.

[38] This is because firstly, the stoppages on 20 and 21 April 2017 did not end until the Federal Court issued an injunction requiring that they do so and secondly, the underlying dispute which gave rise to the stoppages has not been resolved.

[39] The MUA do not deny that these stoppages took place but say there is no reason why they would recur and notes that Patrick have removed references to such stoppages from the Federal Court injunction that they are seeking.

[40] I accept this submission. I think the focus of the underlying dispute is the railyard and the action being taken referred to below is absorbing all the heat of this dispute.

[41] The action is not happening. There is no evidence that it is threatened. I do not consider that it is impending or probable. It follows that I do not find that it is being organised.

Bans on handling containers from Qube trucks

[42] It is clear from uncontested evidence on behalf of Patrick and agreed by the MUA that employees are declining to unload containers from Qube trucks and load them onto the rail and have not done so since an initial cessation of this work on 20 April.

[43] However the MUA say that this action is not industrial action as defined in the Act because it is action taken in conformity with clause 1.3 of Schedule 4 Port Botany of the Agreement.

[44] Clause 1.3 is in the following terms:

1.3. Where a dispute arises in the workplace as a consequence of the Company directing employees to work different to accepted practice/s or a suspected breach of the Enterprise Agreement, work shall continue as existed prior to the dispute arising for a period of 72 hours, and a discussion has taken place between the MUA Branch Secretary and General Manager of Terminal Operations or their nominated representatives. Where the Company proceed with directing employee/s to carry out work contrary to the terms of this Agreement or accepted practice, work shall continue as existed prior to the dispute arising until the matter has been determined through the Dispute Resolution Procedure. It is the intention of the Parties that clause 1.3 will not apply where there has been genuine consultation under the consultation and change clause.

[45] The MUA say that action taken in conformity with clause 1.3 of the Agreement is action that is “authorised or agreed by the employer” because the Agreement was agreed by Patrick and is subject to the exceptions in s.19(2) of the Act.

[46] As outlined by the MUA in its written outline of submissions there are two alternative bases for clause 1.3 to be invoked.

[47] One is “as a consequence of the Company directing employees to work different to accepted practice/s’ and the other is where there is a “suspected breach of the Enterprise Agreement”

[48] If either of these two conditions are present the clause requires work to continue as existed prior to the dispute for a period of 72 hours. This has been described as the status quo period.

[49] The MUA says that the “work different to accepted practice” is the work described in Exhibit C1 which is a memo to the rail team from Jarrod Graham Automaton and Landside Manager. In summary this is the work of unloading empty containers from trucks driven by Qube employees out of the Qube Empty Container yard to the Patrick railyard and loading them onto trains using a reachstacker.

[50] Patrick says the work that rail employees are being asked to do (unloading and loading empty containers using a reach stacker and ancillary activities thereto) is no different to the work they have always done. I am not taking into account the 5 occasions when the new arrangements were implemented from 12 April. I agree with the MUA that to do so would be inappropriate.

[51] Patrick concedes that the source of the empty containers is different being the Qube Empty Container Yard rather than imported on a vessel. Patrick concedes that all the containers are empty compared to a mix of empty and full containers. Mr Graham gave evidence that it is less likely for the containers to be empty when their source is imported on a vessel although he doesn’t monitor whether he containers are full or empty. He also said that the only source of containers prior to the introduction of this work was trucks carrying containers that had been imported on a vessel. In response to a question from Mr Crawshaw Mr Guy disagreed that the normal number of containers on a truck was two. He said that normally there were four containers to a super B double. He calculated the cycle time for each truck in the new process to be 22 minutes based on four containers on a truck. He said the process was consistent with accepted practice irrespective of whether there were one, two, three or four containers on a truck. In terms of work load Mr Guy, in response to a question from Mr Crawshaw, said it was not necessarily the case that there would be increased truck movements. He said that truck movements were limited by the number of trucks. He said that normally there were four containers to a super B double. Mr Guy answered questions about an email thread from a health and safety representative who expressed concern about a number of safety risks associated with the new arrangements. Mr Guy conceded that the Risk Assessment had not yet been carried out. Mr Guy conceded that the Standard Operating Procedures would need to be updated.

[52] Although there are some obvious distinctions between the new arrangements and existing arrangements (source of container, full or empty, potentially the number of containers on the truck) the question arises as to whether these are distinctions that affect work practice.

[53] Mr Graham gave evidence that the rail work team is made up of a rail co-ordinator, a rail team leader, two reachstackers and a work where required employee.

[54] There is no evidence that the composition of the team or the work employees are undertaking constitutes different work practices. In the absence of evidence from employees performing the work I am unable to conclude that employees are being directed to “work different to accepted practice”.

[55] In terms of this basis for clause 1.3 of Schedule 4 of the Agreement to be enlivened I find that this condition is not met.

[56] The MUA says that there is a “suspected breach of the Enterprise Agreement”. This is the other basis upon which clause 1.3 is enlivened. The suspected breach of the Agreement is said to be a breach of clause 14 Consultation and Communication.

[57] Clause 14 Consultation and Communication is in the following terms:

14.1 The parties are committed to working together to consult over change that impacts employees covered by this Agreement. This clause sets out the processes through which the Company, employees and the Union will consult about significant change.

14.2 This clause applies if the Company has made a definite decision to introduce a significant change.

14.3 Without limiting the generality thereof, significant change includes redundancy, 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.

14.4 Once the Company makes a decision that it intends to proceed with any significant change it shall advise the employees and the Union of:

14.4.1 the nature of the change;

14.4.2 the reason for it;

14.4.3 the timing of it; and

14.4.4 any other relevant information.

14.5 After providing the above information the Company, prior to implementing the change, will consult with the employees and consider any views or advice from the Union or employees in relation to the proposed change. This consultation will be conducted over a period that is appropriate to the scope and urgency of the change, and will be a minimum of two weeks.

14.6 After the above notification and discussion has taken place the Company, after careful consideration of the views of employees, may implement change with 21 days' notice. This sub-clause does not affect all, and any rights of the Union or employees in accordance with Schedule 1 of the Agreement.

14.7 Where employees disagree with the change, subject to there being no stoppage of work other than in accordance with Schedule 1 of this Agreement, the employee or the Union, may at any stage refer the matter in dispute to the FWC in accordance with the Dispute Resolution Procedure set out in Schedule 1 of this Agreement.

14.8 Consultation in respect of major technological change will be undertaken in accordance with Schedule 11.

[58] The parties agree that clause 1.3 has two steps. Step one is the 72 hour period which has two triggers – work different to accepted practice/s and suspected breach of the Agreement.

[59] I consider that employees might have reasonably suspected that there was a breach of the Agreement – suspecting something does not require a finding that there was a breach of the Agreement.

[60] In light of the way the existence of the Qube sub-lease and its use as an empty container park and then the requirement for Patrick rail workers to unload and load containers coming from this area crept up on employees and the MUA, it is not surprising that they could consider that clause 14 might have been breached.

[61] The evidence discloses that the existence of the sub-lease was a rumour that was required to be confirmed by the MUA proactively reaching out to Mr Guy. Once Mr Guy had confirmed the rumour additional effort in communication had to be undertaken to secure a meeting about it. The evidence about the timing of the engagement with the Employee Representative Committee members was inconsistent as between Mr Laroche, Mr Guy and Mr Graham. In any event it appears to me that the engagement was more in the nature of information provision rather than consultation which is a process of consensus seeking dialogue and not one way communication let alone procedural directions.

[62] For its part Patrick maintained that it was not obliged to consult because the change was not significant.

[63] Patrick maintain that clause 14 Consultation and Communication is not enlivened unless change is significant and points to the types of impacts in sub clause 14.3 that are amongst those that signal that change is significant.

[64] Notwithstanding the ideal expressed in sub clause 14.1 (which I sincerely believe enhances employee engagement and enterprise performance) Patrick says this is an aspirational clause only. Patrick consider that that are not obliged to consult in the absence of the precondition “significant”. Given it commences with the words “the parties are committed …” rather than something more affirmative I think Patrick’s interpretation is correct. The MUA disagree with this interpretation and consider that the clause obliges the parties to consult over change, significant or otherwise. I don’t think that is a plausible construction since nothing else in the clause supports it. In other clauses of this nature when there is a consultation process for significant change as well as other change it is clearly spelt out with pathways for both.

[65] I think that the first step of clause 1.3 was exhausted 72 hours after 19 April 2017 when the dispute was advised to Patrick and discussions commenced. The MUA say the 72 hours was never exhausted because when they acted in conformance with the clause they were stood down. There is no evidence that they were stood down. In fact the evidence shows the employees unilaterally left the workplace.

[66] Step two is the period after the 72 hours and it is triggered by the Company directing employees to carry out work contrary to the terms of the Agreement or accepted practice. In my view if this period was triggered it commenced 72 hours after 19 April 2017.

[67] I have already addressed “accepted practice” and found it does not apply to enliven the clause.

[68] The next question is “did Patrick direct employees to carry out work contrary to the terms of the Agreement”. This requires a different consideration than a suspected breach. It requires a finding that the Agreement is not being correctly applied.

[69] I have made a finding that clause 14 of the Agreement deals with significant change. If the new arrangements are not significant change then it follows that Clause 14 has no application to this circumstance.

[70] Patrick submit that the Commission has no power to arbitrate – a process that would be required to be undertaken to establish whether the new arrangements are significant change. This is because both clause 1.3 and clause 1.4, even if the “significant” threshold could be met, direct the parties to the dispute resolution procedure which prevents the Commission arbitrating in circumstances where there is or has been industrial action occurring in relation to the matter at hand.

[71] Schedule 1 of the Agreement sets out the dispute resolution procedure:

1. In the event of a dispute arising in the workplace in regard to the application of this Agreement, the National Employment Standards, or any matter pertaining to the employment relationship (including Company policy) the procedure to be followed to resolve the matter shall be as follows: Step 1 workplace discussions

2. The parties shall attempt to resolve the matter at the workplace level within 7 days by:

2.1. An Employee, the Employee's representative (if requested), and their supervisor meeting and conferring on the matter; and

2.2. If the matter is not resolved the matter will be raised at senior levels of management, employee representatives and Union officials (as appropriate).

Step 2 National level discussions

3. If the matter cannot be resolved at workplace level, the matter may be referred by either party to National level for discussion between the parties.

Step 3 Fair Work Commission

4. If the matter cannot be resolved at National level, either party may refer the matter to the Fair Work Commission (FWC) or such other tribunal as may replace it. The FWC may deal with the dispute in 2 stages:

4.1. The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

4.2. If the FWC is unable to resolve the dispute at the first stage, and at the request of either party, the FWC may, subject to there being no industrial action occurring or having occurred in relation to the matter at hand: (my emphasis)

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

4.3. If the FWC arbitrates the dispute:

(i) It may also use the powers that are available to it under the Act, and

(ii) An appeal may be made against the decision.

4.4. While the parties are trying to resolve a dispute in good faith using the procedures in this clause, the FWC has the power to issue an interim determination which may include an order requiring that, while the parties are trying to resolve the dispute using the procedures in this term, work will continue under the conditions and arrangements that existed before the dispute arose pending finalisation of the dispute (interim determination).

4.5. In deciding whether to make an interim determination, the FWC must have regard to all relevant circumstances, including, where relevant:

(i) the strength of the case (at final arbitration) of the party seeking the interim determination;

(ii) the respective consequences for each party of an interim determination being made, or not made, as the case may be;

(iii) the conduct of the parties in relation to the dispute, including,where relevant, the conduct of the parties in respect of clause 14 of this Agreement; and

(iv) any other matters that the Commission considers relevant.

4.6. Nothing in this sub-clause prevents either Party from seeking an interim order or stay pursuant to the FW Act.

4.7. An interim determination is binding on the parties.

5. Either Party may refer the dispute to FWC at any stage of the procedure if the procedure is not being followed or is otherwise inappropriate in the circumstances.

6. While the parties are trying to resolve the dispute using the procedures in this term:

6.1. Employees will continue to perform their work as they normally would unless there is a reasonable concern about imminent risk to their personal safety.

6.2 If an employee has stopped work due to an imminent risk to their health or safety, the employee will comply with a direction given by the Company to perform other available work on full pay at the same workplace, unless:

6.2.1 the work is not safe; or

6.2.2 applicable occupational health and safety legislation would not permit the work to be performed; or

6.2.3 there are other grounds upon which the direction is not reasonable.

7. The parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible.

[72] This barrier to the Commission excising the power of arbitration appears in sub clause 4.2.

[73] The MUA say this is no barrier because the action it acknowledges is taking place (refusal to unload and load empty containers) in relation to the matter at hand (the new arrangements for unloading and loading containers) is not industrial action.

[74] The matter at hand in relation to the stoppage of work is considered by the MUA to be different. That is considered to be the lease of space to Qube and the deduction of pay for rail employees.

[75] I think that is splitting hairs. Mr Fernon took me to paragraph after paragraph in the statement of Mr Guy and Mr Graham to demonstrate that the “matter at hand” was indeed a holistic dispute and I don’t think it is possible to apportion industrial action to one part of it but not another in the manner suggested by the MUA.

[76] Furthermore I don’t think the Act envisages employees taking a power option when they consider that an employer is breaching an agreement. The rights based framework of enforcement exists to allow a less destructive means of resolving these kinds of issues. Two wrongs don’t make a right, if you like.

[77] I find that the refusal to load and unload containers in the rail yard is industrial action and is not exempt by virtue of the exception in s.19(2)(a) of the Act.

[78] I also need to consider whether this industrial action is being organised by the MUA. I have only the evidence given by witnesses on behalf of Patrick to go on.

[79] I rely upon the evidence of Mr Guy at paragraphs 39, 40, 41, 42, 43, 51, 55, 59, 60, 61, 62, 69 and 103 of his first witness statement, and paragraphs 23, 24, 44, 45 and 69 of Mr Laroche’s witness statement that officials and delegates of the MUA were involved in the process of employee decision making concerning this industrial action. I consider that the MUA is organising this industrial action.

[80] From the conduct of this case by Mr Crawshaw it is apparent that officials and delegates of the MUA believe that they are not engaged in industrial action in relation to the railyard. Deputy President Sams at paragraph 14 of his decision in relation to the application by the MUA for an interim order in this matter said:

“In my opinion, the Union has made out a case that there is a serious issue to be tried in respect to the interpretation and application to the present disputed circumstances of cl 1.3 of Part B: Schedule 4 of the Agreement.”

[81] This is mere speculation on my part, but it may be that officials and delegates have felt no inhibition in being involved with members in the organisation of this action for that reason.

[82] Nevertheless I find that the MUA is organising this industrial action and the order will reflect this finding.

Bans on shift extensions and overtime

[83] The MUA say that this category concerns overtime and it is not appropriate to separate them into two categories. The parties agree that the clause of the Agreement that deals with overtime, clause 22 Overtime and Meal Allowance applies to both.

[84] However it is useful to separate them for the purpose of understanding the trend data which is the basis upon which Patrick urges a finding of industrial action upon me.

[85] A witness statement of Mr Rowe was tendered (Exhibit F4). Mr Rowe was not required for cross-examination and the statement was accepted, uncontested. Mr Rowe’s evidence was that under the terms of the Agreement, employees can nominate themselves to be available for overtime. He attached to his statement a number of charts showing the number of employees who volunteered for overtime, by shifts per day over a range of dates. In respect of the period 27 February 2017 to 6 April 2017, he said the average number of shifts per day for which employees volunteered was 6.8, compared to 3.5 shifts per day from 6 April 2017 to 26 April 2017.

[86] A further chart was tendered (Exhibit F5) showing the number of employees who volunteered for overtime, by shifts per day from 16 October 2016 to 2 May 2017 and the seven-day moving average over the same period. The number of employees volunteering for overtime shifts per day and the seven-day moving average over this period show volatility. What is clear from the chart is that from 24 April 2017 the number of employees volunteering for overtime, by shifts per day, falls dramatically. The seven-day moving average falls below the lowest rate on the chart, to be close to zero by 2 May 2017.

[87] Mr Rowe’s statement also deals with volunteers for shift extensions. He provides a chart that shows the number of shifts worked that were in excess of 9.5 hours each day, and also the moving average of the number of shifts worked that were in excess of 9.5 hours since 1 January 2017 to 26 April 2017. Like the data in relation to the number of employees who volunteered for overtime, the data shows volatility over the period but there is a distinct change revealed, commencing on or around 10 April 2017 when the number of employees accepting requests to extend their shifts drops to zero. It remains at zero for the remaining period.

[88] Patrick say that I should draw an inference from this data from the temporal connection between the reduction in employees making themselves available for overtime and accepting shift extension and the other industrial action occurring. The inference Patrick says I should draw is that the change in the data reveals that industrial action in the form of bans on shift extensions and overtime are in place. The MUA on the other hand say that there is another inference that could be drawn and that is that employees are unhappy and don’t want to volunteer.

[89] As between these two inferences I think the more plausible inference is that employees have made a collective decision to refrain from offering themselves for overtime and accepting request to extend shift. I find no evidence that this is being organised by the MUA.

[90] An order will issue consistent with this decision.

s.739 dispute

[91] The MUA submits that an order should be made that there “be no handling of empty containers from the QUBE Container Depot until the dispute over the new work is resolved.” (Outline of Submissions). The MUA contends that the dispute should be resolved by Patrick meeting all of the requirements for consultation contained in clause 14 of the Agreement.

[92] In this circumstance the Commission exercises its powers in relation to dispute resolution pursuant to sections 595, 738 and 739 of the Act. Section 595 provides that the Commission may only deal with a dispute if the Commission is expressly authorised to do so under or in accordance with another provision of the Act. Further that the Commission may only deal with a dispute by arbitration if it is expressly authorised to do so under or in accordance with another provision of the Act. Section 738 enlivens Part 6-2 dealing with disputes of the Act in this circumstance because s.738 (b) provides that the Division applies if an enterprise agreement includes a term that provides a procedure for dealing with disputes.

[93] The Agreement contains such a clause and it is set out above.

[94] Section 739 (1) of the Act provides that the section only applies if a term referred to in s.738 requires or allows the Commission to deal with a dispute.

[95] Section 739 (3) – (5) set out below are of relevance to this application:

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

(4) [FWC may arbitrate] 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) [FWC must not make a decision inconsistent with Act or Instrument] 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.

[96] It is uncontroversial that industrial action in the form of a stoppage occurred on 20 and 21 April 2017. Whilst I have decided that it is no longer happening past conduct of industrial action operates as a bar to the exercise of the power of arbitration in the dispute resolution procedure.

[97] As outlined above the MUA differentiate between the matter at hand that this industrial action related to and submit that arbitration remains available in this application because the stoppage concerned another matter - the lease of space to Qube and the deduction of pay for rail employees, not the new arrangements for unloading and loading containers.

[98] As already indicated I think that is splitting hairs. Mr Fernon took me to paragraph after paragraph in the statement of Mr Guy and Mr Graham to demonstrate that the “matter at hand” was indeed a holistic dispute and I don’t think it is possible to apportion industrial action to one part of it but not another in the manner suggested by the MUA.

[99] I also have found that employees are declining to unload containers from Qube trucks and load them onto the rail and have not done so since an initial cessation of this work on 20 April. I have found that this is industrial action. This is plainly relating the matter at hand of the new arrangements to unload and load containers from trucks onto rail.

[100] I find that the Commission is unable to exercise the power of arbitration in this circumstance due to the industrial action that has taken place and continues to take place.

[101] The order sought is declined.

[102] The Commission remains available to assist the parties in relation to the dispute through the exercise of the powers set out in s.595(2) of the Act and clause 4.1 of the dispute resolution procedure of the Agreement at the parties request.

DEPUTY PRESIDENT

Appearances:

Mr J J Fernon, senior counsel, appeared for Patrick Stevedores Holdings Pty Ltd and with him, Mr D Perry, solicitor, of Seyfarth Shaw

Mr S Crawshaw, senior counsel, appeared for The Maritime Union of Australia and with him, Mr A Slevin of counsel, and with them, Mr A Jacka of the MUA

Hearing details:

2017

Sydney

May 3

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