Qube Ports Pty Ltd t/a Qube Ports & Bulk v Construction, Forestry, Maritime, Mining and Energy Union - [2022] FWCFB 53

[2022] FWCFB 53

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Qube Ports Pty Ltd t/a Qube Ports & Bulk
v

Construction, Forestry, Maritime, Mining and Energy Union

(C2022/982)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CROSS
commissioner hampton

SYDNEY, 6 APRIL 2022

Appeal against decision [2022] FWC 78 of Deputy President Bull at Sydney on 19 January 2022 in matter numbers C2021/3780 and C2021/3782

Introduction and background

Qube Ports Pty Ltd (Qube) has appealed a decision of Deputy President Bull published on 19 January 2022.[1] It is not in dispute that permission is required for the appeal. The decision concerned two applications made by the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The first application was made under s 739 of the Fair Work Act 2009 (Cth) (FW Act), and sought that the Commission deal with a dispute pursuant to the dispute resolution procedure in the Qube Ports Pty Ltd Sydney Harbour Enterprise Agreement 2016[2] (Agreement). The dispute concerned whether the position of an employee of Qube, Mr Stephen Johnson, was redundant and whether, as a consequence, Qube was obliged not to unreasonably refuse an expression of interest by him in voluntary redundancy pursuant to clause 13.3.3 of the Agreement. The second application was made under s 526 of the FW Act, and sought that the Commission deal with a dispute about Qube’s indefinite standdown of Mr Johnson pursuant to s 524. The Deputy President determined, in relation to the s 739 dispute, that Qube was to declare that Mr Johnson’s position was redundant and offer him a voluntary redundancy and, as a result, found that it was not necessary to determine the CFMMEU’s s 526 application. In its notice of appeal, Qube contends that the decision was in error on the following grounds:

1. The Deputy President misconstrued Step 4 of the procedure in clause 13.3.3 of Part A of the Agreement at [237] and [238] of his decision, as mandating Qube to declare Mr Johnson's position redundant in circumstances where:

(a)properly construed, having regard to its context and purpose, clause 13.3.3 of the Agreement does not prescribe redundancies where measures can be and have been taken to avoid redundancies;

(b)under Step 4, the employer has the right to determine the number of proposed redundancies required (if any) based on Economic Conditions Data disclosed under clause 13.1.3 and the efficacy of the mitigation measures under Steps 1 to 3; and

(c)clause 21.2.1 of Part A of the Agreement only requires the declaration of redundancies by Qube where it has a need to reduce the size of all or part of its workforce.

2. The Deputy President erred in finding that Mr Johnson’s position has been made redundant at [237] of his decision, in circumstances where Qube did not have a need to reduce the size of all or part of its workforce in accordance with Step 4 of clause 13.3.3 and clause 21.2.1 of Part A of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Qube Ports Pty Ltd t/a Qube Ports & Bulk v Construction, Forestry, Maritime, Mining and Energy Union [2022] FWCFB 53
Case: [2022] FWCFB 53
Decision Date: 6 APRIL 2022

CaseChat Overview and Summary

Qube Ports Pty Ltd has appealed against a decision of the Fair Work Commission finding that it was required to declare the position of Mr Stephen Johnson redundant and offer him a voluntary redundancy under clause 13.3.3 of the Qube Ports Pty Ltd Sydney Harbour Enterprise Agreement 2016. The appeal was heard by the Full Bench on 25 March 2022. The Full Bench refused permission to appeal. The dispute arose out of the Covid-19 pandemic and its impact on Qube’s stevedoring business in Sydney Harbour, where operations were suspended due to restrictions on the operation of passenger cruise ships in Australia. The Deputy President found that Mr Johnson’s position had been made redundant when the mitigation measures in clause 13.3.3 of the Agreement were not effective in addressing his hours shortfall. Qube argued that the Deputy President had misconstrued clause 13.3.3 and had erred in finding that Mr Johnson’s position was redundant. It submitted that the appeal raised issues of broader application and of general public importance as to the industrial concept of redundancy. The Full Bench was not satisfied that the grant of permission to appeal was in the public interest, or that there was a sound discretionary basis to grant permission. It was of the view that the decision concerned a particular and somewhat unusual circumstance in the context of a bespoke arrangement agreed by the parties, and that Qube had not advanced a persuasive case that the Deputy President had erred in the interpretation and application of clause 13 of the Agreement.

Orders