SeaRoad Shipping Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union
[2022] FWC 1788
•12 JULY 2022
| [2022] FWC 1788 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
SeaRoad Shipping Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2022/2999)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 12 JULY 2022 |
Dispute arising under an enterprise agreement – dispute determined
This decision concerns an application made by SeaRoad Shipping Pty Ltd (SeaRoad) under s 739 of the Fair Work Act 2009 (Act) and the dispute settlement procedure in Schedule 1 of the SeaRoad Shipping Enterprise Agreement (Stevedoring) 2020 (Agreement). The application refers to the Commission for resolution a dispute as to whether, as SeaRoad contends, clause 3 of Schedule 8 of the Agreement allows the company to implement proposed changes to shift start times for employees working in its operations at Webb Dock in Melbourne. The application is opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which contends that the Agreement does not permit the proposed changes to shift start times in the present circumstances.
The factual background to this matter is uncontroversial and was set out in the witness statement of Mr Travis Carlier, who is the general manager of operations of SeaRoad’s parent company, SeaRoad Holdings Pty Ltd (SeaRoad Holdings). The SeaRoad group is a shipping and logistics business that transports freight between Victoria and Tasmania. SeaRoad Holdings operates two vessels. SeaRoad employs stevedores at Webb Dock and in Devonport who are deployed to service the vessels.
In July 2019, SeaRoad advised the CFMMEU that it was considering replacing one of its two vessels, the SeaRoad Tamar, with a new vessel, as it needed to increase its operational hours in order to remain competitive. These matters were discussed at meetings between the parties in late December 2020 and early 2021.
In April 2021, SeaRoad Holdings replaced the SeaRoad Tamar with a charter vessel, the Liekut. The Liekut is a larger vessel than the SeaRoad Tamar. It measures 210 metres in length and 26 metres in breadth, with a gross tonnage of 32,887, whereas the SeaRoad Tamar measured 147 metres by 23 metres, with a tonnage of 13,965. Mr Carlier said in his statement that because of this, the Liekut needs to be at berth for longer than the SeaRoad Tamar.
During 2021, numerous meetings took place at which the parties discussed new shift times that SeaRoad proposed to introduce for stevedores. In December 2021, an in-principle agreement was reached between the company and the union that stevedoring employees at Webb Dock and in Devonport would work a combination of the following shifts: 9-hour shifts on weekdays from 6:00 to 15:00 and from 10:00 to 19:00; and 8-hour shifts on Saturdays from 6:00 to 14:00 and from 10:00 to 18:00 (the new schedule). These arrangements would have the effect of enabling the company’s operations to start earlier and finish later. The CFMMEU put the new schedule to a vote of employees. A majority of employees at Devonport voted in favour of the new schedule but all employees at Webb Dock voted against it. The employees raised various concerns about the new schedule, including in relation to crewing levels. Further discussions took place between the company and the union but no agreement could be reached to introduce the new schedule at Webb Dock.
In late April 2022, SeaRoad advised the CFMMEU and employees that the new schedule would be implemented both at Devonport and Webb Dock, effective from 2 May 2022. Shortly afterwards, the CFMMEU notified SeaRoad that the matter was in dispute at Webb Dock and invoked the status quo provision in Schedule 1 of the Agreement, the effect of which was to halt the company’s introduction of the new schedule at Webb Dock until the dispute was resolved.
The new schedule has been implemented at Devonport. Employees at Webb Dock continue to work their previous schedule, which is a combination of one or more of the following: for ship work employees, nine-hour shifts on weekdays from 8:00 to 17:00 and eight-hour shifts on Saturdays from 8:00 to 16:00; and for receival and delivery employees and clerks, nine-hour shifts on weekdays from 7:00 to 16:00 or from 8:00 to 17:00, and eight-hour shifts on Saturdays from 7:00 to 15:00 or from 8:00 to 16:00.
The following question was submitted for determination:
“In accordance with the SeaRoad Shipping Enterprise Agreement (Stevedoring) 2020, is SeaRoad entitled to introduce, at Webb Dock, the arrangements set out at paragraph [4] of the Form F10, namely an arrangement whereby full time and permanent guarantee employees work a combination of the following shifts:
(a) A nine-hour shift from 6:00 to 15:00 Monday to Friday;
(b) A nine-hour shift from 10:00 to 19:00 Monday to Friday;
(c) An eight-hour shift from 6:00 to 14:00 on Saturday; and
(d) An eight-hour shift from 10:00 to 18:00 on Saturday.”
Provisions of the Agreement and contentions of the parties
Part A to Schedule 8 of the Agreement prescribes working arrangements that apply to SeaRoad’s operations at Webb Dock. Clause 3 of Part A to Schedule 8 provides as follows:
“Normal hours of work covered by the annual salary are:
Ship Work R&D
Monday to Friday: 0800 to 1700 0700 to 1600 Saturday: 0800 to 1600 0700 to 1500 …
Ship working and R&D shifts may be required to start normal working up to 2 hours earlier or 3 hours later to accommodate vesselscheduling variations. Shift finish times and meal breaks will be adjusted accordingly. Ship working and R&D teams may have different starting and finishing times to accommodate operational or commercial requirements.” (emphasis added)
SeaRoad contended that clause 3 of Schedule 8 expressly states that employees may be required to start normal working hours up to two hours earlier or three hours later in order to accommodate vessel-scheduling variations, and that the company’s proposed new start times at Webb Dock fall squarely within what the clause allows. It submitted that the reason for its proposed changes to start times is to accommodate ‘vessel-scheduling variations’, namely the scheduling that it requires in respect of the new vessel that has entered service, and that the change introduced by the new schedule is therefore one that has the requisite purpose.
SeaRoad submitted that clause 3 of Schedule 8 is clear and unambiguous and that there was no need to have regard to extrinsic materials. It contended that there was no other basis upon which it could be said that the new schedule should not be implemented. In particular, the company had complied with its obligations under the Agreement to consult about the proposed changes, and the CFMMEU did not say otherwise. SeaRoad contended that the CFMMEU’s opposition to the implementation of the change was without foundation and that the question posed for determination should be answered in the affirmative.
The CFMMEU contended that the Agreement does not permit SeaRoad to implement its proposal to alter shift times at Webb Dock in the present circumstances because clause 3 of Schedule 8 of the Agreement only permits changes to start times for the purpose of accommodating ‘vessel-scheduling variations’, and the change to shift times in the present matter was not being made for this reason. The union submitted that, properly construed, a ‘vessel-scheduling variation’ in clause 3 was necessarily temporary in nature. It contended that clause 3 did no more than allow SeaRoad to change start times on an ad hoc and occasional basis in response to such matters as tidal issues preventing the discharge of cargo, the delayed arrival of a vessel, inclement weather, vessel breakdowns or the operation of one vessel only. The CFMMEU submitted that the company’s proposal was not an ad hoc adjustment of shift times in response to a vessel-scheduling variation but was instead a wholesale reconfiguration of the ordinary hours of work set out in the Agreement in response to the introduction of a new vessel, and that nothing in Schedule 8 contemplates the company’s ability unilaterally to alter the ordinary hours of work.
In its reply, SeaRoad contended that the CFMMEU’s interpretation required the Commission to read words into clause 3 of Schedule 8, to omit other words, and to ignore important contextual factors. It submitted that clause 3 of Schedule 8 simply does not say that a scheduling variation must be temporary, and that had the framers of the Agreement intended to refer to temporal limitations, they would have done so. In this regard, SeaRoad referred to clause 17.5, which provides that employees will not normally work overtime shifts on rostered days off but that where the working of a vessel normally occurs on a Saturday, employees may be required to work the Sunday in lieu of Saturday, where mechanical or other problems have delayed the vessel, ‘or where vessel scheduling is temporarily altered for other reasons’.
SeaRoad further submitted that a relevant contextual consideration informing the meaning of clause 3 of Schedule 8 was the fact that the Agreement elsewhere contemplates that hours of work may be changed without reference to limitations save for consultation (clause 13.2 and clause 10 of Schedule 8). It submitted that the purpose of the Agreement should also be taken into account. In this regard, clause 6.5 states that nothing in the Agreement ‘shall impede the process of ongoing change to continuously improve the viability, efficiency and productivity of the Company’, and clause 7.1 states that the company’s future depends on the provision of an economic, efficient and reliable service to the shipping and transport industries in Bass Strait. SeaRoad submitted that this is the very reason why it seeks to change the shift start times at Webb Dock.
Consideration
It was common ground, and I am satisfied, that the Commission is authorised by the dispute resolution provision in Schedule 1 of the Agreement to resolve the present dispute by arbitration. The dispute is one that concerns the correct interpretation of the Agreement and its application to particular circumstances. The principles that apply to the interpretation of enterprise agreements are well-established and I will not reproduce them here.
I do not accept the CFMMEU’s contention that a ‘vessel-scheduling variation’ in the context of clause 3 of Schedule 8 must be temporary in nature. The clause does not say this. Vessel-scheduling simply means the scheduling of vessels. A vessel-scheduling variation is a change to the scheduling of vessels. There is no textual or contextual basis to confine such variations to occasional or ad hoc circumstances of the kind referred to by the union (tidal issues preventing discharge of cargo, delayed arrival of a vessel, a breakdown etc). On one view, these situations might be more aptly described as departures from vessel-scheduling, rather than ‘vessel-scheduling variations’. But in any event, assuming these are instances of vessel-scheduling variations, clause 3 is not limited to such situations. I have considered whether the introductory words to clause 3 of Schedule 8, which refer to ‘normal’ hours of work, might suggest that other hours are not normal and therefore temporary. But this is not the case, because the last paragraph of clause 3 states that employees may be required to ‘start normal working hours’ up to two hours earlier or three hours later to accommodate vessel-scheduling variations. These new hours of work become the new ‘normal’ hours of work.
I note that the final sentence of clause 3 of Schedule 8 provides that ship working and R&D teams may have different starting times ‘to accommodate operational or commercial requirements’. This appears to mean simply that these two teams may have start times that are different from one another. However the final sentence is relevant to the interpretation of the first. The reference in the final sentence to the accommodation of ‘operational or commercial requirements’ is to be contrasted with the accommodation of ‘vessel-scheduling variations’ in the first sentence. These are different concepts in the context of the clause, however clearly, they overlap. Vessel-scheduling variations would logically reflect operational or commercial requirements at some level. They are a subset of that broader concept. SeaRoad does not have the right under clause 3 of Schedule 8 to change start times to accommodate any operational or commercial requirements. It is only to accommodate ‘vessel-scheduling variations’ that shifts may be required to start earlier. The fact that there is an operational or commercial requirement for the vessel-scheduling variation does not matter.
I agree with SeaRoad that the broader context of the Agreement only reinforces the conclusion that clause 3 of Schedule 8 applies to vessel-scheduling variations generally, not only to temporary situations. In particular, clause 17.5 shows that the framers of the Agreement were alive to the possibility of temporary vessel-scheduling changes but chose not to make reference to them in clause 3 of Schedule 8.
The CFMMEU contended at the hearing that clause 3.5 of the Agreement prevented the company from relying on clause 3 of Schedule 8 in the present circumstances. Clause 3.5 states that the ‘terms and conditions of this Agreement shall apply to terminal operations involving any new vessel introduced by the Company during the Agreement’s operation’, and that where the company proposes to introduce a new vessel, it will consult with the union and employees under clause 13 of the Agreement. As I understand the union’s contention, the ‘terms and conditions’ of the Agreement are said not to comprise the schedules to the Agreement, and therefore the company cannot rely on clause 3 of Schedule 8 in connection with the introduction into service of the Liekut. I reject this contention. The terms and conditions of the Agreement plainly include the schedules to the Agreement. Further, in my view the fact that the Agreement contemplates new vessels entering service favours the company’s argument. A reference to ‘vessel-scheduling variations’ in an agreement that anticipates new vessels entering service would to my mind reasonably contemplate variations to existing vessel schedules to accommodate new vessels. There is nothing in the text or context of clause 3 of Schedule 8 that warrants a reading down of the clause in the manner proposed by the union.
SeaRoad’s reply submission stated that the imperative of providing an efficient service was the reason it was seeking to make the shift change. This statement must be understood in context. This is evidently the broader reason for the proposed change, and presumably for most other decisions that the company makes. But the immediate reason for the change is to accommodate a vessel schedule variation. Mr Carlier explained in his statement that the new vessel that is now in service, the Liekut, is substantially larger than its predecessor, and therefore requires a longer time at berth. It is evident that the new schedule will facilitate longer periods at berth.
I note that in its explanation of the factual background to the dispute that was set out in the F10 application, and which the CFMMEU did not dispute, the company explained that when the Liekut was introduced, SeaRoad’s total lane metre capacity grew by almost 70%, with the consequence that the company could now transport substantially more freight, which indeed it was required to do in order to ensure that the Liekut was economically viable. SeaRoad stated in the F10 application that in order to load and discharge the additional freight, it became necessary to alter sailing times and increase the company’s operational hours at both Webb Dock and in Devonport. This was an operational or commercial requirement that led to a vessel-scheduling variation. The new schedule will accommodate that variation.
I find that the change to start times in the present matter is to accommodate a ‘vessel-scheduling variation’. SeaRoad proposes to change shift start times in a manner, and for a purpose, that is authorised by clause 3 of Schedule 8.
The answer to the question that has been submitted for determination is ‘yes’.
DEPUTY PRESIDENT
Appearances:
J. McLean of counsel for SeaRoad Shipping Pty Ltd
P. Mohseni for the CFMMEU
Hearing details:
2022
Melbourne
8 July
Printed by authority of the Commonwealth Government Printer
<PR743615>
0
0
0