Qube Ports Pty Ltd T/A Qube Port, Qube Bulk, Qube Ports and Bulk v Maritime Union of Australia

[2016] FWC 2883

[2016] FWC 2883

FAIR WORK COMMISSION

DECISION

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

Qube Ports Pty Ltd T/A Qube Port, Qube Bulk, Qube Ports and Bulk
v
Maritime Union of Australia
(C2016/291)

COMMISSIONER CLOGHAN PERTH, 19 MAY 2016

Dispute about any matters arising under the enterprise agreement.

[1] This is an application to the Fair Work Commission (Commission) by Qube Ports Pty Ltd (Qube or Employer) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[2] Qube is in dispute with the Maritime Union of Australia (MUA).

[3] The dispute is referred to the Commission pursuant to the dispute settlement procedure (DSP) in the Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011 (the Port of Bunbury) (Bunbury EA).

[4] The MUA contends that, as the DSP procedure set out in the Bunbury EA has not been followed, and consequently, the Commission does not have the jurisdiction pursuant to s.739 of the FW Act, to hear and determine the dispute. Accordingly, the application should be dismissed.

[5] To determine whether the Commission has the jurisdiction to hear and determine the matter, I intend to first consider the legislative framework, secondly, the DSP in the Bunbury EA, and finally, the background to the dispute and the dispute itself. The latter two matters will assist in determining the MUA’s jurisdictional objection.

[6] At the hearing, the MUA was represented by Ms E Palmer, Industrial Officer. Evidence, on behalf of the MUA, was given by Mr T Zappa, Stevedore Supervisor and MUA delegate for the past 10 years.

[7] Qube was represented by Ms E Hartley, HWL Ebsworth Lawyers. Evidence, on behalf of the Employer was given by:

• Mr G Gibson, Operations Manager, Port of Bunbury;



• Mr D Mainstone, Operations Superintendent, Port of Bunbury; and



• Mr K Murphy, Shift Manager, Port of Bunbury.

RELEVANT LEGISLATIVE FRAMEWORK

[8] The FW Act relevantly provides at ss.595, 738 and 739 as follows:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(2) …
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(4) …
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

“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) …”

“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 BUNBURY ENTERPRISE AGREEMENT

[9] Clause 45 of the Bunbury EA is entitled Dispute Resolution and reads as follows:

“45.1 In The event of a dispute arising in the workplace, the procedure to be followed to resolve the matter shall be as follows:-

Step 1 The matter will in the first instance be discussed between the employee/s and the immediate supervisor involved.

If the matter remains unresolved:

Step 2 It will be referred for discussion between the Union delegate or other employee representative and the local supervisor.

If the matter remains unresolved:

Step 3 It will be referred for discussion between the appropriate state Union Branch official or other employee representative and the state management representative.

If the matter remains unresolved:

Step 4 It will be referred for discussion between the appropriate national union official or other employee representative and the nominated national management representative.

If the matter remains unresolved:

Step 5 Where the dispute has not been resolved despite the foregoing procedures being followed and subject to there being no stoppage of work in relation to the issue at hand, either party may refer the matter to FWA for conciliation/arbitration pursuant to section 739 and section 595 of the Act, if necessary, in which case the decision will be accepted by the parties, subject to any appeal rights.

45.2 If the matter is referred for conciliation, both parties will participate in the process in good faith.

45.3 During the time when the parties attempt to resolve the matter, either at the workplace level, or through conciliation or arbitration, the parties shall continue to work in accordance with their contract of employment.

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

[10] The substantive dispute concerns the proper meaning and application of subclauses 1.7(b) and 1.7(c) of Part B of the Bunbury EA as follows:

“1.7 Wash-downs, the Following Rules Will Apply:-

(a) …
(b) Wash-downs will be conducted during nominal Day or Evening Shift hours unless there are circumstances of an imminent vessel berthing to load cargo at the Berth to be cleaned and there has been no prior opportunity to complete the task.

(c) At the conclusion of loading operations the employees may be required to carry out a wash-down during nominal Day or Evening Shift hours. If the wash-down has not been completed then it will be carried out on the next available day (Monday-Friday), unless there is an impending vessel to be loaded or limited labour availability.

(d) The foreman on a wash-down will be a Grade 6 duty and will be responsible for the operation of the conveyor system, wash down and shift-loader infrastructure to ensure the safety of employees working in the system.”

RELEVANT BACKGROUND TO THE DISPUTE

[11] Spodumene is a rare mineral sand and comes in several grades. The highest grade being a fine dust-like substance. Spodumene is shipped from the Port of Bunbury.

[12] Qube operates at the Port of Bunbury, 24 hours per day, 7 days per week, 365 days of the year.

[13] On 14 January 2016, spodumene was loaded onto the vessel Trans Friendship 1.

[14] On the afternoon of 14 January 2016, Messrs Gibson, Mainstone and Murphy formed the view that it was necessary for night shift employees to commence the wash-down of the loading area, following the departure of the Trans Friendship 1.

[15] A wash-down is necessary to ensure that there is no contamination of subsequent loadings.

[16] The Employer’s decision to commence wash-down was relayed to the evening shift supervisor, Mr Joe Tassone. Mr Joe Tassone was required to make a note in the shift handover notes that night shift employees were required to commence the wash-down.

[17] Shortly after Mr Joe Tassone was required to make a note that night shift employees were required to commence the wash-down, Mr C Brown, Organiser, MUA telephoned Mr Gibson concerning the wash-down to be carried out by the night shift employees. 1

[18] Following the telephone conversation with Mr Brown, Mr Gibson amended his direction to require the night shift employees to wash-down the ship loader and road hopper only.

[19] On 14 January 2016, Messrs Nick Tassone, McGregor and Hughes (collectively night shift employees) were rostered to work a night shift.

[20] Mr Murphy, as Shift Manager, confirmed and instructed Mr Nick Tassone, as Supervisor of Messrs McGregor and Hughes, to wash-down the ship loader and road hopper at approximately 10:30 pm on 14 January 2016.

[21] Loading of the Trans Friendship 1 was expected to be completed at 8:00 pm but was ultimately completed at approximately 10:55 pm on 14 January 2016.

[22] At 12:22 am on 15 January 2016, Mr Nick Tassone telephoned Mr Murphy to advise him that the night shift employees had washed down the ship loader and road hopper, to “dust suppression standard” and were going home.

[23] Qube does not have a “dust suppression standard” in its procedures.

[24] The night shift employees left the Port of Bunbury at or about 12:22 am on 15 January 2016.

[25] At this point, it is useful to set out the working arrangements for the night shift employees.

[26] Employees, pursuant to the Bunbury EA, are required to work 1820 Annual Accumulated Hours inclusive of annual leave, personal leave, public holidays and closed port days, in each 12 month period beginning 1 July each year.

[27] A normal shift length is seven (7) hours.

[28] Employees generally telephone the Employer after 4 pm on the day prior to the proposed work day, to see if they are rostered to work.

[29] The nominal shift times in the Port of Bunbury are:

• Day Shift 7am to 2pm



• Evening Shift 3pm to 10pm



• Night Shift 11pm to 6am.

[30] Notwithstanding the nominal shift time, it appears the practice is for some of the oncoming shift to start one hour earlier. On this occasion, Mr Nick Tassone and Mr McGregor started work at 10:00 pm. Mr Hughes started at 11:00 pm.

[31] Consequently, at 12:22 am when the night shift employees went home, Mr Nick Tassone and Mr McGregor had been at work for 2 hours and 22 minutes. Mr Hughes was at work for 1 hour and 22 minutes.

[32] Having been rostered to work a seven (7) hour shift, night shift employees are paid a minimum of seven (7) hours for the shift, irrespective of whether they work part or all of the entire shift. The seven (7) hours is deducted from the annual total of 1820 hours.

RELEVANT BACKGROUND AS TO WHY NIGHT SHIFT EMPLOYEES WERE REQUIRED TO COMMENCE A WASH-DOWN OF THE SHIP LOADER AND ROAD HOPPER

[33] Loading of the Trans Friendship 1 was completed at approximately 10:55 pm on 14 January 2016.

[34] In the preparation for the arrival of the next vessel, the Pan Ivy, the Employer had rostered a day and evening shift on 15 January 2016 to carry out the wash-down. 2 Ordinarily, this may have been sufficient hours to carry out the wash-down.

[35] The Pan Ivy was due to berth at 5 am on 16 January 2016.

[36] During the day of 14 January 2016, the Employer was advised that the estimated berthing time of the Pan Ivy had been brought forward from 5 am to midnight on 15/16 January 2016.

[37] Further, on 14 January 2016, the length of time for the wash-down allocated, was compared to a recent wash-down of a similar load of spodumene. The similar sized load had taken over 19 hours to complete. In addition, a visual check by Mr Murphy saw how “messy” the loading area was. 3

[38] The Employer formed the view that the already “posted” allocation of day and evening shifts on 15 January 2016, would be insufficient for the wash-down before the Pan Ivy berthed.

[39] For Qube not to be ready to load the Pan Ivy, when it berthed, would have had commercial consequences and be in breach of its service obligations to the Port of Bunbury.

[40] Having identified the risk of not being ready to load the Pan Ivy when it berthed, the Employer was required to address the issue of having sufficient hours/employees available to complete a wash-down.

[41] By mid-afternoon on 14 January 2016, and in the knowledge of the arrival of the Pan Ivy at midnight on 15/16 January 2016, the Employer activated the provisions of subclause 1.7(b) of Part B of the Bunbury EA to enable the wash-down to take place on night shift.

[42] The known circumstances at the time the Employer activated subclause 1.7(b) were:

• the berthing of the Pan Ivy at midnight on 15/16 January 2016;



• the loading system at the Port was “messy”;



• uncertainty over the ability to engage employees, especially a supervisor, on the night shift of 15 January 2016;



• the loading of the spodumene would take longer than expected and it appeared the evening shift would not be able to commence the wash-down at 8:00 pm; and



• there would be insufficient allocated time to complete the wash-down on day and evening shifts on 15 January 2016, prior to the berthing of the Pan Ivy.

[43] The Employer submits that, in view of these circumstances, it was entitled to direct employees to commence the wash-down on night shift.

[44] I now turn to the interaction between the Employer’s personnel, Mr Brown of the MUA, and the night shift employees.

RELEVANT INTERACTION OF QUBE AND MUA PERSONNEL, AND NIGHT SHIFT EMPLOYEES

[45] Mr Murphy spoke to Mr Joe Tassone who was the evening shift supervisor at approximately 3:00 pm. Mr Murphy requested that Mr Joe Tassone put a note to the Night Supervisor, Mr Nick Tassone, that Mr Gibson required loading to be completed on the Trans Friendship 1 and then night shift employees were to commence the wash-down. 4

[46] A short time afterwards (between 15 and 30 minutes) 5,Mr Brown contacted Mr Gibson. Mr Brown conveyed to Mr Gibson that “the boys, (presumably the night shift employees but unknown employees) did not reckon there was an imminent vessel so they did not have to stay and wash”. Mr Brown also advised Mr Gibson, “the workers said that they only needed 12 hours to complete a wash-down and both a day and evening shift were booked to work on Friday [15 January 2016]”.6

[47] The remaining relevant parts of the discussion between Mr Brown and Mr Gibson are that: Mr Gibson, Mr Mainstone and Mr Murphy had discussed the wash-down in depth before deciding to issue the direction for night shift to commence wash-down; the most immediate wash-down following a similar volume loaded of Spodumene on 13 October 2015, had taken 19 hours and 38 minutes and what “imminent” meant.

[48] Mr Gibson communicated to Mr Brown that the Employer was “under the pump” to finish the wash-down. Mr Brown’s view was that the direction to commence the wash-down was outside the enterprise agreement.

[49] Mr Brown offered a solution to Qube of, “booking a night shift for 15 January 2016, if it became necessary” 7.

[50] At the conclusion of the discussion, Mr Gibson, “understood that Chris [Mr Brown] was going to tell the workers about the agreement we had reached and that they would wash the ship loader and top of the road hopper”. 8

[51] Mr Gibson conveyed his understanding to Mr Mainstone, who in turn, advised Mr Murphy. 9

[52] At this point, Mr Gibson considered that the dispute had been resolved.

[53] Mr Murphy’s uncontested evidence is that he spoke to Mr Nick Tassone at approximately 10:30 pm. Mr Nick Tassone, as the Night Shift Supervisor, was instructed that night shift employees had to wash-down the ship loader and road hopper to, “survey or inspection standard”. Mr Nick Tassone was requested to telephone Mr Murphy when the task was completed. Mr Murphy indicated to Mr Nick Tassone that he would go into the Port to ensure that the wash-down had been done correctly, and after the task had been completed to the required standard, the employees could go home. 10 Mr Gibson estimated that the task should take approximately “two and a half to three hours”.11

[54] Mr Nick Tassone did not raise any concerns with Mr Murphy concerning his direction. 12

[55] Approximately 20 minutes after midnight, Mr Nick Tassone telephoned Mr Murphy and advised him that night shift employees “had done the top of the road hopper and that the ship loader was washed to dust repressed state. I asked Nick if everyone was aware that we wanted to wash down to inspection standard and he told me they were” 13.

[56] Due to the ship loader and road hopper not being washed down to inspection standard on night shift, the Employer had to put an extra employee on day and evening shift on 15 January 2016 (five employees on each shift) 14. This was done after an inspection of the loading equipment by Mr Mainstone early in the morning of 15 January 2016.15.

[57] The wash-down and inspection were ultimately completed at approximately 10:30 pm on 15 January 2016. Mr Gibson’s uncontested evidence is that, “if the vessel had come in at midnight which is when it was scheduled for when the direction was given on Thursday, we would have only just got the job finished in time, it took extra labour to achieve this and without the two extra workers, we would not have.” 16 An inspection to confirm that the wash-down has been completed satisfactorily takes approximately 1.5 hours.17

WHAT IS THE REAL DISPUTE AND WHEN DID IT COMMENCE?

[58] Examination of the evidence, leads the Commission to consider what is the real dispute about and when did that dispute commence.

[59] There is no controversy that the Employer made the decision to require the night shift employees to commence the wash-down. Within a short space of time, that decision was challenged by Mr Brown on behalf of the employees presumably on night shift. As a result of a telephone conversation between Mr Brown and Mr Gibson, a compromise, according to Mr Gibson, was reached to wash the ship loader and the top of the road hopper.

[60] On the evidence, it is clear that there was a dispute arising in the workplace and the MUA chose not to proceed with Steps 1 and 2 in the DSP but to go directly to Step 3. Step 3 refers to a discussion between the, “appropriate state Union Branch official and the state management representative”. Mr Brown is a state union official and Mr Gibson is a state management representative.

[61] I have no evidence from Mr Brown, the night shift employees or a MUA representative, as to why the Union chose to bypass Steps 1 and 2 of the DSP.

[62] The evidence I do have is from Mr Gibson who states:

“Chris [Mr Brown] said to me words to the effect that the boys did not reckon there was an imminent vessel so they did not have to stay and wash…the workers felt that the direction was outside the EA.” 18

[63] In summary, the evidence I have is that on the afternoon of 14 January 2016, there was a dispute between Qube and the MUA concerning subclause 1.7(b) of Part B of the Bunbury EA, in particular, what is meant by the word “imminent”. Further, the evidence demonstrates that Mr Brown, when he became aware of the dispute, chose to bypass Steps 1 and 2 and proceeded, as a state Union official, to engage with the management representative – Mr Gibson.

[64] On 15 January 2016, the night shift employees were issued with a “show cause” letter. This show cause letter led to further communication between the MUA and Qube which is not relevant for my purposes, except to say that the Employer makes it clear that the communication relates to Step 4 of the DSP which, at its essence, relates to subclause 1.7(b) of Part B of the Bunbury EA. 19

[65] I note in the correspondence referred to immediately above, an email dated 5 February 2016, from Mr Smith, MUA Assistant National Secretary who states, “if indeed you believe your assertions are correct [with respect to 1.7(b)] we invite you to lodge the matter with the Fair Work Commission where we will participate in good faith”. Furthermore, Mr Evans, MUA WA Deputy Secretary, who states in an email shortly after Mr Smith’s comment, “…As Warren has indicated in his email, we are happy for you to lodge in the FWC as we believe the EA is clear and members were working in accordance with the agreement”. 20

MUA’S JURISDICTIONAL OBJECTION

[66] The MUA contend that the DSP procedure in Clause 45 of the Bunbury EA has not been followed, and accordingly, the Commission does not have the jurisdiction to hear and determine the application.

[67] The MUA contends that Step 1 required that the matter, in the first instance, be discussed between the employee(s) and the immediate supervisor. That is correct. However, the MUA further submits:

“When the employees told Mr Murphy, via Mr Nick Tassone, that they would not complete the wash down of the ship loader and road hopper to inspection standard, Mr Murphy did not make any effort to discuss or resolve the matters with the employees as required under Clause 45.1.

Step 2 required that the matter be discussed between the Union delegate or other employee representative and the local supervisor. This step was not undertaken at all.” 21

[68] In my view, the MUA is portraying the dispute as one which commenced approximately 20 minutes after midnight on 15 January 2016. According to the MUA, the dispute commenced when the night shift supervisor, Mr Nick Tassone, advised Mr Murphy that the wash-down had been completed to a dust suppression state and not to inspection standard.

[69] In my view, the MUA is retrospectively reconstructing the dispute to overcome the inconvenient fact that, some eight (8) or nine (9) hours earlier, Mr Brown raised the dispute with Mr Gibson without night shift employees going through Steps 1 and 2 as required in the DSP.

[70] I would also say that, in making this application, the Employer has engineered the circumstances to fit within the DSP, rather than stating the facts which are that the MUA chose to bypass Steps 1 and 2.

[71] I have no reason to disbelieve Mr Gibson when he states that the dispute, according to Mr Brown, was about, “the boys did not reckon there was an imminent vessel so they did not have to stay and wash”. 22

[72] This dispute is not about the standard of the wash-down carried out by the night shift employees but the interpretation and application of subclause 1.7(b) of Part B of the Bunbury EA.

[73] This is a dispute which commenced on the afternoon of 14 January 2016. The MUA responded to a decision of the Employer to require night shift employees to commence the wash-down; the real dispute is about the interpretation and application of subclause 1.7(b) of Part B of the Bunbury EA.

[74] I now turn to Steps 4 and 5 of the DSP.

[75] Step 4 of the DSP requires a discussion between the appropriate national union official or employee representative and the nominated management representative. The MUA concede that, “this step was completed by discussion between Mr Tod Emmert for the Applicant and Messrs Warren Smith and Adrian Evans for the Respondent”. 23

[76] Step 5 provides that either party may refer the matter to the Commission for conciliation/arbitration pursuant to s.739 of the FW Act. The Employer has chosen this course of action.

[77] In conclusion, the MUA assert that because “Steps 1 to 3 were not followed, the matter cannot be referred to the Commission”. 24

[78] The primary purpose of Part 6-2 of the FW Act is to enable, where parties have agreed, for the Commission to deal with a dispute arising in the workplace.

[79] The Bunbury EA, at Clause 45, provides for the Commission to deal with unresolved disputes, on application by either party.

[80] In this particular application, the MUA chose not to follow the DSP procedure in Steps 1 and 2 but proceeded straight to Step 3. The MUA concede that Step 4 has been complied with. Notwithstanding this concession, the MUA contends that Qube is prevented from referring the dispute to the Commission for hearing and determination because Steps 1 and 2 have not taken place.

[81] I understand the intention and purpose of the DSP is to provide a complete, certain and final solution to disputes in the workplace. If I accept the MUA’s actions, the MUA can thwart the will of the parties, by instituting itself a “short cut”, and then utilising that “short cut”, to negate the intention and purpose of the DSP. Further, the MUA is effectively submitting that its actions prohibit any application by the Employer to refer the matter to the Commission.

[82] There is no doubt, in my view, that the primary function of the DSP is to have workplace disputes resolved at the “lowest level” possible. Few would argue against disputes being resolved as near to the workplace location of the dispute, as possible.

[83] The Commission must perform its functions in a manner, amongst others, that is:

• fair and just; and



• promotes harmonious and cooperative workplace relations (s.577 of the FW Act).

[84] Further, in performing or exercising its powers, the Commission must take into account:

• the objects of the Act; and



• equity, good conscience and the merits of the matter (s.578 of the FW Act).

[85] The Commission should be cautious in dismissing applications made pursuant to s.739 of the FW Act where it is asserted that the procedural steps have not been complied with, in circumstances where it is manifestly plain that non-compliance is due to the actions of the party seeking the dismissal of the application.

[86] To reverse the facts and circumstances of this application, if an employee’s immediate supervisor steadfastly refuses to discuss a workplace dispute with the employee, according to the MUA’s submission, the Union would be prevented from instituting s.739 proceedings, because all the procedural steps in the DSP clause had not been complied with.

[87] An alternative understanding of Mr Brown’s actions are that he observed the requirements of subclause 45.4 of the DSP which is to ensure that its procedural steps are carried out as quickly as possible. In this respect, Mr Gibson cooperated and Steps 1 to 3 were collapsed into the discussion between himself and Mr Brown on the afternoon of 14 January 2016.

[88] Both Mr Brown and Mr Gibson have extensive experience and knowledge of the Western Australian waterfront. A reasonable inference is that both know that the waterfront is well unionised. Further, that in speaking to Mr Brown, Mr Gibson was speaking to the night shift employees represented by their MUA representative The outcome of the discussion in Mr Gibson’s evidence, went directly to the extent of the wash-down to be carried out by the night shift employees, who were the employees directly involved in the workplace dispute.

[89] If Mr Gibson had refused to discuss the matter with Mr Brown and insisted that the night shift employees follow the DSP “to the letter”, the MUA would have accused the Employer of being obstructive and hindering the resolution of the dispute. I make this point particularly as the workplace dispute is not one which is “person” centred, but one of general application to all employees covered by the Bunbury EA.

[90] Finally, it is noticeable that the MUA’s jurisdictional objection only arose after the conciliation conference and Directions were issued for a hearing. A hearing, which as I have already observed, was encouraged by the MUA upon Qube.

[91] Recourse to s.739 of the FW Act should not, in exceptional circumstances, be denied, where the facts, when reviewed, demonstrate that the party alleging non-compliance with the procedural steps, is properly the cause of that non-compliance. To prohibit a party from making an s.739 application would be unfair, unjust, inequitable and promote disharmony in the workplace.

[92] For the reasons set out above at paragraphs [66] to [91] above, I am satisfied that the Commission has the jurisdiction to hear and determine the substantive dispute.

EVIDENCE

[93] I only want to make four general observations regarding the evidence provided to the Commission.

[94] First, neither Mr Brown, Mr Joe Tassone nor the night shift employees gave evidence for the MUA. In relation to the dispute, ordinarily, it would be expected that one or more of those involved would give evidence. However, that is a matter for the MUA in resisting the Employer’s application.

[95] Secondly, I do not accept that this dispute concerning wash-downs is about safety. While Mr Zappa mentioned safety reasons when carrying out wash-downs on night shift, “due to poor lighting and higher risk of fatigue” 25, there was no compelling evidence with respect to both matters.

[96] Mr Zappa’s evidence is that “wash-downs do happen on night shifts fairly regularly because there is usually an imminent vessel berthing” 26. Mr Zappa, while acknowledging that wash-downs are a “hard job”, conceded, “No, we don’t mind doing wash-downs at all. We can do up to four wash-downs a week”.27

[97] Having considered the evidence, I am satisfied that the subclauses relating to wash-downs are restrictive, at least, for the reason of employee preference. This is best illustrated as follows in Mr Zappa’s examination-in-chief:

“What about the restriction on weekends, because obviously you could do it on a day shift on the weekend.  What would be the reason for not rostering - or for the employees wanting to restrict the rostering of washdowns on weekends as the clause does in 1.7(c)?---Well our shifts and our constant rate pays are made up on a 35 hour week Monday to Friday.  Even though we're a regular stevedores and we work 24:7 - on call 24:7 basically.  If you had prior opportunities to do this job during the week, day and afternoon shift, you would be better do that than work your people on night shift or weekends when there was no need to do it.

There's no imminent or impending vessel and it's not critical because it's a difficult job and so forth, you'd prefer to do it during the week and during the day?---Yes. It can be pouring with rain or it could be boiling hot.  Why would you put your employees through that when there's no need to do that, when you can do it on a day or afternoon shift Monday to Friday when it's quite family orientated to everyone.

Family orientated did you say?---Yes, so you can actually see your family and have a bit of after work, work life.” 28

[98] Thirdly, Mr Zappa had no direct involvement in the substance of the dispute.

[99] Finally, subclauses 1.7(b) and (c) of Part B of the Bunbury EA have been in existence for seven (7) years and, as Ms Palmer stated, “This is the first time we have been in the Commission about it”. 29 If that is the case, it appears that this dispute is an aberration. However, there have been many changes on the waterfront in the last seven (7) years.

INTERPRETATION OF ENTERPRISE AGREEMENTS

[100] The Full Bench of the Commission, in The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 (Golden Cockerel), summarised the principles to be applied in the construction of an enterprise agreement. Both parties referred to Golden Cockerel in their submissions and I intend to follow the principles adopted within that Decision.

[101] With respect to the second principle, in Golden Cockerel, it is necessary to determine whether subclauses 1.7(b) and (c) of Part B of the Bunbury EA have a plain meaning or contain uncertainty; I am satisfied that the words in the subclauses are not plain and are capable of more than one meaning, as evidenced by the respective submissions of the parties.

[102] At this point, it is useful to again set out subclauses 1.7(b) and (c) of Part B of the Bunbury EA:

“1.7 Wash-downs, the Following Rules Will Apply:-

(a) …

(b) Wash-downs will be conducted during nominal Day or Evening Shift hours unless there are circumstances of an imminent vessel berthing to load cargo at the Berth to be cleaned and there has been no prior opportunity to complete the task.

(c) At the conclusion of loading operations the employees may be required to carry out a wash-down during nominal Day or Evening Shift hours. If the wash-down has not been completed then it will be carried out on the next available day (Monday-Friday), unless there is an impending vessel to be loaded or limited labour availability.

(d) …”

[103] Firstly, it is noticeable that, in subclause 1.7(b), wash-downs will ordinarily be conducted during Day or Evening shifts; that is not disputed between the parties.

[104] Secondly, the general rule that wash-downs are to be conducted during Day or Evening shifts is qualified by the word “unless”.

[105] The word “unless” both qualifies the ordinary circumstances of wash-downs but also, of itself, introduces the conditions required to make the exception operative to the normal circumstances.

[106] For the exception to become operative, it is necessary that:

• there be circumstances of an imminent berthing of a vessel;



• the berth at which the vessel is arriving at, has to be cleaned; and



• there has been no prior opportunity to complete the task of cleaning.

[107] The MUA concede that it is ultimately the Employer who must decide whether a vessel is “imminent” and that this decision does not require consultation with employees. 30

[108] However, the MUA assert that such a decision, “must be made objectively, having regard to the full criteria in the relevant clauses and no other criteria”. 31

[109] The Australian Concise Oxford Dictionary (ACOD) defines “imminent” as “impending, soon to happen”. “Imminent” is an adjective and tells the reader in subclause 1.7(b) that the berthing of the vessel is soon to happen.

[110] The word “imminent” in submissions has had its meaning expanded or shortened by the parties, “fore and aft”, so to speak.

[111] The “boys”, if it was the night shift employees, have a self interest in stating that the vessel was not imminent as relayed by Mr Brown to Mr Gibson. Further, as acknowledged by the MUA, the employees have no accurate information on which to base this assertion.

[112] The assessment and information of when a vessel is estimated to arrive is within the knowledge of the Employer. The formation of the estimated time of berthing is subject to many factors including time of departure from the previous port, conditions at sea, weather and mechanical interruptions, etc. To varying degrees, these factors can change and affect the berthing time at the Port of Bunbury. However, the key point is that the meaning of “imminent” berthing, should be interpreted in the context of the maritime industry, and not replaced by a comparison of a “bus on St Georges Terrace”.

[113] While I agree with the MUA that the word “imminent” should be interpreted objectively by the Employer, the assessment of what is “imminent” is one to be made within context, and based on the information available to the Employer, at the time.

[114] I now turn to the condition that the loading berth has to be cleaned for the incoming vessel. In this dispute, this matter was not a contested issue.

[115] Notwithstanding that the cleaning of Berth 8 was not a contested issue, there is meaningful connection between the imminent arrival of a vessel and cleaning of the loading area. The connection is that subclause 1.7(b) of Part B of the Bunbury EA, begins with the general rule that wash-downs can occur on Day or Evening shift, Monday to Friday, irrespective of whether there is the imminent berthing of a vessel. However, for a wash-down to be conducted on Night shift, not only has there to be the imminent arrival of a vessel but also that the loading area must be cleaned before the incoming vessel is loaded.

[116] I now turn to the final issue and that is whether there was prior opportunity for the loading area to be washed down, without the need for the night shift employees to complete the task on 14 January 2016.

[117] The MUA submit night shift employees “cannot be directed to conduct a wash-down unless there has been no prior opportunity on a Day or Evening shift to complete the task before the next vessel berths. If there remains a Day or Evening shift before the next vessel berths, those shifts should be given an opportunity to complete the task before a night shift can be directed to conduct the wash-down.” 32

[118] Unlike the previous condition of fact as to whether the loading berth is to be cleaned or not, the third condition relates to the concept of time and possibility of completing the task of a wash-down.

[119] Subclause 1.7(b) of Part B has not been constructed in such a way, as submitted by the MUA, that night shift employees cannot be directed to wash-down, unless and until, Day and Evening shifts have attempted to complete the task. Should Day and Evening shifts fail to complete the task, the MUA submit, it is only then night shift employees can be directed to carry out the task. In my view, imposing such a condition would be re-writing subclause 1.7(b).

[120] The ACOD defines “opportunity” as a “favourable occasion” of doing something.

[121] Opportunity means, in the context of subclause 1.7(b) of Part B, as to whether there is a favourable time, opportunity, chance or occasion 33 to carry out cleaning of the berth, without it being undertaken by night shift employees.

[122] The circumstances faced by the Employer prior to the departure of the Trans Friendship 1 were a “messy” loading area, the arrival of the Pan Ivy at midnight on 15/16 January 2016 and a possible 19 hour 35 minute wash-down time. This set of circumstances, objectively considered, did not present a favourable opportunity or chance to clean the loading area, before the arrival of the Pan Ivy without the wash-down commencing on night shift.

[123] The question to be asked is whether a Day or Afternoon shift can “complete” the task of a wash-down. If management’s view, objectively considered, is that the wash-down cannot be completed on a Day or Evening shift, it is a matter of when Night shift is engaged in the task of a wash-down to ensure that the wash-down task is completed. It would seem inept to have a vessel berthing at midnight which needed to be loaded at the same time Night shift are finishing the task of a wash-down/inspection, when the opportunity was available for Night shift to commence the wash-down on the previous night (and have that task finished on Day or Evening shift). “Opportunity” means “chance or occasion”.

[124] The exceptions to the general rule in subclause 1.7(c) of Part B are not relevant to this dispute but the parties are seeking its interpretation of that subclause, in view of its association with subclause 1.7(b).

[125] The text of subclause 1.7(c) deals similarly with wash-downs having to occur on Day and Evening shifts between Monday and Friday inclusive, “unless there is an impending vessel to be loaded or limited labour availability”. For the purposes of this application only, I consider the use of “imminent” and “impending” interchangeable. However, the significance is that in subclause 1.7(b), the conditions are cumulative, whereas, in subclause 1.7(c) the conditions are in the alternative.

[126] In subclause 1.7(c), the Employer can activate a wash-down on Night shift, on Saturday or Sunday at the conclusion of loading, if there is an impending vessel to be loaded or limited labour availability.

[127] It is not necessary to repeat my comments with respect to the word “impending”. With respect to whether there is “limited labour availability”, that can only be objectively determined having regard to all the facts and circumstances.

[128] In conclusion, I note that overarching all the provisions in the Bunbury EA is the specific articulated intent of the enterprise agreement at Clause 3, which is, among others, to achieve the objectives of:

• customer retention and growth; and



• business expansion.

[129] Further, the Bunbury EA has the implicit ability and expectation of Qube and employees to “improve on any aspect of the operation [of the business]”.

[130] Finally, the intent of the Bunbury EA is to provide Qube with, “certainty of proficiency, reliability and continuity of operations in order to aid the further development and progress of the Company as the industry market leader in the interests of its shareholders and employees”.

[131] If, as the parties have agreed, this is the intent of the Bunbury EA, it would seem reasonable that the terms of the enterprise agreement are designed and intended to be interpreted in the context of the purpose or objectives set out in Clause 3.

[132] In interpreting subclauses 1.7(b) and (c) of Part B of the Bunbury EA, there is always uncertainty dealing with claims about the true intention of clauses, in and after a dispute. In many cases, the Commission has to deal with subjective self-serving statements of the intention of clauses by both parties. In my view, it is safer to look at the plain words used to express the intention of the parties as set out, in this case, in Clause 3. The intention as expressed in those words, are the words which should prevail of the intention of the clauses in the Bunbury EA and should be considered as the context to the interpretation of subclauses 1.7(b) and (c).

CONCLUSION

[133] In its submission, the MUA state that:

“The true dispute is about the proper interpretation of clauses 1.7(b) and (c) of Part B of the Agreement. It is not about whether or not the employees contravened the Agreement or failed to follow a lawful and reasonable direction”. 34

[134] I agree that this dispute is about the interpretation of subclause 1.7(b) and by association, subclause 1.7(c) of Part B of the Bunbury EA.

[135] This application is not about whether the night shift employees contravened the Bunbury EA or failed to follow a lawful and reasonable direction. Those are matters which, if pursued, can be instituted elsewhere.

[136] Having considered the evidence, submissions and case law, I find in relation to subclause 1.7(b) of Part B that:

• wash-downs are to be conducted ordinarily on Day and Evening shifts; however,



• wash-downs can be conducted on Night shift subject to the following three (3) conditions:

- the imminent berthing of a vessel;
- the berth at which the vessel is arriving, has to be cleaned; and
- there has been no prior opportunity to complete the task of cleaning before the berthing of a vessel.

• with respect to the meaning of “imminent” berthing of a vessel, that is a matter and decision for the Employer having, objectively and reasonably considered all information and circumstances available to it at the time the Employer intends to activate subclause 1.7(b);



• in conjunction with the imminent berthing of a vessel, it is a matter and decision of the Employer, whether the loading area at the berth has to be cleaned prior to the berthing of the incoming vessel;



• it is a matter for the Employer having, objectively and reasonably considered all the circumstances, whether there is no opportunity to complete the wash-down prior to the berthing of the incoming vessel, before directing night shift employees to carry out wash-down duties;



• subclause 1.7(b) does not require consultation or agreement with employees prior to the Employer activating the subclause. This should not be interpreted that consultation should not occur but it is not a mandatory provision in the subclause. Consultation may assist in preventing potential disputes; and



• the provisions of subclause 1.7(b) do not create a “lock step” approach in which Day and Afternoon shifts have to carry out a wash-down, before Night shift can be directed to carry out a wash-down. In conjunction with the imminent berthing of a vessel, the opportunity to complete the wash-down does not preclude Night shift commencing the task prior to Day and Evening shifts.

[137] I find in relation to the meaning and application of subclause 1.7(c) of Part B of the Bunbury EA, that at the conclusion of loading operations:

• employees can be required to carry out wash-downs during nominal Day and Evening shift on Monday to Friday; however,



• if the wash-down has not been completed on a Day or Evening shift, Monday to Friday, it shall be completed on the next available Monday to Friday; unless,



• there is an impending vessel or limited labour availability;



• with respect to the meaning of “impending”, that is a matter and decision for the Employer having objectively and reasonably considered all information and circumstances available at the time when it intends to activate subclause 1.7(c);



• with respect to “limited labour availability”, that is a matter and decision for the Employer having objectively and reasonably considered all information and circumstances available at the time when it intends to activate subclause 1.7(c); and



• my comments regarding consultation or agreement with employees set out in paragraph [137] above, also applies to this subclause.

[138] In the event of a dispute about the meaning and application of subclause 1.7 of Part B of the Bunbury EA as set out above, it should be dealt with pursuant to Clause 45.

COMMISSIONER

Appearances:

E Hartley, of counsel, for the Applicant

E Palmer, Industrial Officer, on behalf of the MUA.

Hearing details:

2016:

Perth,

4 May.

<Price code C, PR580127>

Printed by authority of the Commonwealth Government Printer

 1   Exhibit A6 (47)

 2   Exhibit A1 (11)

 3   Exhibit A4 (25)

 4   Exhibit A6 (47)

 5   Transcript PN84

 6   Exhibit A6 (50)

 7   Exhibit A6 (54)

 8   Exhibit A6 (56)

 9   Exhibit A6 (57)

 10   Exhibit A4 (34)

 11   Exhibit A6 (61)

 12   Exhibit A4 (34)

 13   Exhibit A4 (37)

 14   Exhibit A6 (67)

 15   Transcript PN333

 16   Exhibit A6 (68)

 17   Exhibit R4 (20)

 18   Exhibit A6 (50) and (53)

 19   Exhibit A2 (17)-(27)

 20   Exhibit A6 (4)

 21   Exhibit R1 (4)

 22   Exhibit A6 (50)

 23   Exhibit R1 (4)

 24   Exhibit R1 (4)

 25   Exhibit R4 (4)

 26   Exhibit R4 (7)

 27   Transcript PN606

 28   Transcript PN589 to PN591

 29   Transcript PN688

 30   Exhibit R1 (20)

 31   Exhibit R1 (21)

 32   Exhibit R1 (24)

 33   Chamber Dictionary of Etymology

 34   Exhibit R1 (11)