Toll Transport Pty Limited T/A Toll Shipping v Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWC 1381

[2020] FWC 1381

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Toll Transport Pty Limited T/A Toll Shipping
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2020/1310)

COMMISSIONER BISSETT MELBOURNE, 20 MARCH 2020

Alleged industrial action – whether go-slow in progress – whether industrial action – whether organised by CFMMEU – employees found to be engaging in unprotected industrial action – Order issued against employees – no order against CFFMEU

[1] Toll Transport Pty Limited T/A Toll Shipping (Toll Shipping) has made an application to the Fair Work Commission for an order pursuant to s.418 of the Fair Work Act 2009 (FW Act) to stop unprotected industrial action it says is being taken by employees of Toll Shipping at Webb Dock in Port Melbourne (the Terminal) and that it says is being organised by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) – collectively the Respondents.

[2] The application was made by Toll Shipping on Wednesday 4 March 2020 at 4.37pm. It was listed for hearing on Thursday 5 March 2020 at 11.00am. At this time the parties by consent sought that the matter be re-listed for Friday 6 March 2020 to enable the Respondents an opportunity to file relevant affidavit material. Toll Shipping and the Respondents indicated that some cross examination of witnesses would be required at the hearing.

[3] In proceedings on 5 March 2020 I granted permission to Toll Shipping and the CFMMEU to be represented by a lawyer being satisfied that, due to the complexity of the matter, it would be dealt with more efficiently if permission was granted. Mr Felman of Counsel represented Toll Shipping and Mr White of Counsel represented the CFMMEU. At proceedings on 6 March 2020 Mr White advised that he also represented Mr Nugent, an employee of Toll Shipping.

[4] At the finalisation of the hearing on 6 March 2020 I issued an Order that industrial action being organised by employees of Toll Shipping cease. I declined to issue an order directed to the CFMMEU, not being satisfied that it was involved in organising any unprotected industrial action.

[5] In issuing the Order I indicated that I would issue reasons for my decision in due course. These are my reasons.

[6] By way of background Toll Shipping conducts a shipping and stevedoring business that entails the receipt, loading and discharge of containers, trailers and cars on a daily basis between Burnie in Tasmania and the Terminal. The service operates every day of the week except Sunday. There are two vessels that operate the service. The first arrives in Melbourne at about 6.00am and departs Melbourne for Burnie at 6.30pm. The second departs Burnie at 6.00pm and arrives in Melbourne the following morning. On arrival in Melbourne the vessel is discharged and then loaded with new cargo to send to Burnie.

[7] The Toll Shipping Melbourne Stevedoring Enterprise Agreement 2015 applies to employees of Toll Shipping at the Terminal. It has a nominal expiry date of 19 November 2019. Negotiations for a replacement agreement have been occurring since September 2019. The CFMMEU is a bargaining representative for the majority of employees.

[8] Following application by the CFMMEU, a Protected Action Ballot Order (PABO) was issued. The ballot resulted in members of the CFMMEU authorising industrial action. In accordance with the result of the ballot the CFMMEU notified Toll Shipping of protected industrial action on 14 February 2020 in the form of a 24-hour stoppage of work from 12.00pm Friday 21 February 2020 to 12.00pm Saturday 22 February 2020. This industrial action occurred.

[9] Further protected industrial action in the form of a ban on overtime was notified by the CFMMEU on 18 February 2020 and commenced from 12.00pm Saturday 22 February 2020. That industrial action is on-going.

Evidence

[10] Mr Craig Heron, National Stevedoring & Terminals Manager for Toll Shipping, gave evidence in proceedings.

[11] Mr Heron says that the primary measure of productivity at the terminal is the cargo exchange rate on the vessel. The cargo exchange rate is the number of containers loaded on and off the vessel during berth. It is measured “per TEU” (20-foot container equivalent unit).

[12] In the period April 2019 to 13 January 2020 productivity at the Terminal averaged a cargo exchange rate of 804 TEU per day. In the period 24 February 2020 to 3 March 2020 (the go-slow period) the cargo exchange rate had fallen to an average of 573 TEU per day. 1 On 4 March 2020 the rate was 709 TEU and on 5 March 2020 the rate was 540 TEU.

[13] A further measure of productivity is the vessel discharge rate of MAFI trailers (a particular type of heavy duty industrial cargo trailer used in ports). Whilst not formally recorded, Mr Heron says that average discharge rate is approximately 10 minutes per row on the main deck. From Wednesday 26 February 2020 until Wednesday 4 March 2020 he says the discharge rate has varied between 15 and 35 minutes per row.

[14] Mr Heron says that the overtime ban currently in place does not account for the drop in productivity. He says that overtime is generally about 45 minutes per shift (although employees are entitled to a minimum 1 hour payment and regularly receive 2 hours to encourage them to do the overtime). Even if it was an hour Mr Heron says he would expect to see a productivity decrease of 9% on 10 hour shifts and 12.5% on the 7 hour shifts but that the productivity decrease based on the average TEU per day is approximately 29%.

[15] Mr Heron says that, whilst there was an impact from a ransomware attack on Toll Shipping on 31 January 2020, all systems were up and operating again from 24 February such that he would not anticipate any effect of the attack on productivity from that date.

[16] Mr Heron says that the effect of the go-slow action is that Toll Shipping has been unable to discharge the vessel each day (that is, remove all the incoming cargo) as the vessel needs to be loaded with cargo so it can sail to Burnie each evening. This has resulted in some cargo being stranded on the vessel. For this reason Toll Shipping has had to reduce its acceptance of freight because it is unable to load it. Mr Heron says that the cost to Toll Shipping is about $300,000 per day on average.

[17] Mr Heron responded to the evidence of Mr Nugent in the following respects:

•  The map of the Terminal provided by Mr Nugent 2 does not show an additional area opened up.3

•  The refrigerated container (Reefer) area 4 opened in August 2019, not November 2019. It is an area used to store refrigerated containers on power. Mr Heron became aware in November 2019 that the area was wet which resulted in some vehicle traction issues. This was (partially) resolved by adding a counterweight to forklifts. Further issues were raised on 2 March 2020. It has not rained every day since the cargo exchange rate dropped.5 Water falls to the surface of the area from rain and from water leaking from the refrigerated containers. This water creates conditions where drivers are required to “drive to conditions”.

•  The lost area arising from the East End reduction 6 is less than 20%. Whilst the reduction is significant it is not the most significant reduction that has occurred – there have been constant changes to the area of the Terminal over the last 18 months. That the area accommodated 500 containers is an overestimate. Issues created by the East End reduction were resolved by the opening up of new Discharge areas G and F from 1 January 2020.

•  The Operational Area 7 is always used first when discharging from the vessel. It had been congested from the end of November 2019 but this was cleared by late December 2019. There may be rows left in the Operational area at the end of the day but these are moved into areas E, F & G. Congestion in the Operational area does result in cargo being driven further to be discharged. The opening of area G has alleviated congestion when areas C, D & E are full. The speed limit for most of the terminal is 15km/hr with area F restricted to 5 km/hr.

•  The ransomware attack only had an effect for the first 3 weeks of February 2020. It resulted in a slower sign in and freight collection process for trucks. This issue was resolved by 24 February 2020 and had no effect on productivity post that date.

•  Instructions to crew to “drive to conditions” is a standing instruction which has not changed.

•  The Receival area 8 is subject to a Provisional Improvement Notice (PIN) issued on 20 February 2020. This has resulted in 900m² of the areabarricaded off from a total Receival area space of 11,000m². Surface issues have been present in the area for the last 12 months. The Receival area is used only for single height MAFIs. The area is used in a restricted fashion because of the PIN.

•  The spill over of the Receivals area into the Break down area 9 has not resulted in any more congestion with an additional 6 trucks being used to clear containers from 24 February 2020. The Breakdown area is used to break down North bound cargo (i.e. arriving from Burnie) but that cargo is not stored in the Breakdown area. South bound cargo is staged through the Breakdown area before it goes to the Receival area prior to loading onto the vessel.

•  The effect of the overtime ban 10 has resulted in some congestion on Mondays (as a result of overtime not being worked on “grey” days and so excess cargo not being moved on the weekend) but this is cleared early in the week. The overtime ban has also affected the release of the vessel for the evening departure. The twilight crew has, however, only been reallocated to load/release the vessel on 3 occasions.

•  Congestion issues at the terminal occurred in December with the boundary change (East End reduction) and with the freight peak at Christmas. Congestion has not occurred since area G was opened.

[18] The evidence of Mr Robert Patchett, Assistant Secretary for the Victorian Branch of the CFMMEU –Maritime Union of Australia Division (MUA), is that neither he nor any other official of the MUA has requested, encouraged or organised members at the terminal to engage in a go-slow. He says that he has been mindful to remind members that they should only engage in protected industrial action and that they should not take unprotected industrial action as it may affect their ability to participate in protected industrial action.

[19] Mr Patchett said he met with members on Thursday 5 March 2020 and asked why they thought productivity may be down. He says that members told him that a number of factors may have contributed to this including that part of the workface was barricaded off from about 17 February 2020, that congestion in the Terminal had increased as a result of protected industrial action, the effect on truck queues coming to collect goods caused by the ransomware attack and because the employees had been told by the General Manager of Toll Shipping to “work to conditions”.

[20] Mr Patchett provided a copy of a notice to members in which the MUA made clear that it did not authorise or encourage members to engage in a go-slow and that if a go-slow was occurring advising that the MUA’s position is that it should cease.

[21] Mr Patchett gave evidence that the MUA had not organised a go-slow at the terminal.

[22] Mr Warren Nugent is an employee of Toll Shipping and is currently a Deputy Health and Safety Representative.

[23] Mr Nugent says that he has not received “any communication, written, verbal or implied” from the MUA suggesting that he or other workers for Toll Shipping engage in a go slow at the Terminal. He says that he is “not working to ‘go slow’ and [has] not heard or seen anyone else work in this way”. He says the only communication he has had about a go-slow from the MUA was the advice that the MUA does not encourage or support a go-slow.

[24] Mr Nugent says that there have been recent changes to operation of the Terminal including substantial changes to the layout and the way the space is used. A number of these changes may have caused a downturn in productivity

•  The surface in Reefer area A becomes slippery when wet from rain and discharge from refrigerated containers. Concerns about the conditions in relation to all vehicles (not just forklifts) have been raised at Toolbox meetings every Monday. Although stating the Reefer area was established in November 2019, Mr Nugent accepted that it was established in August 2019. He agreed that it has always been the case that care needed to be taken in driving in area A but said there has been an increase in traffic through the Reefer area since the opening of the new Discharge area (area F) 4 weeks ago.

•  The loss of terminal space caused by the East End reduction (on 7 or 8 December 2019) has resulted in the inability to otherwise store 500 containers which are now being stored in the Operational area. This means that cargo discharged from the vessel has to be moved to area F which only opened up 4 weeks ago. Area F has a number of blind corners creating concerns. Cargo is left on the vessel on occasions but this has predominant since the East End reduction. Further, rows left on the main deck of the vessel is a regular occurrence since the reduction. Despite the East End reduction in early December 2019, he agreed that there was no apparent effect on the cargo exchange rates through December.

•  Area G is not available for MAFI and Reefers storage and is only used for trailers. The cargo exchange rate is not just a measure in relation to MAFIs and Reefers but also includes trailers.

•  The overtime ban has resulted in departing vessels running late with the twilight shift being allocated to load the vessel. This has happened more than three times since the overtime ban was implemented. No work being conducted on grey days has resulted in congestion on Mondays as excess cargo has not been moved. This is not resolved as the week progresses. Prior to the ban overtime was generally 2 hours for shipping employees and about 1 hour for others.

•  Since Christmas 2019 the Operational area has been congested and “clogged with cargo”. 11 No effect of this was apparent in the cargo exchange rate figures attached to Mr Heron’s statement.

•  The PIN in the Receival area was issued following an incident in which the poor state of the surface was a contributing factor.

•  Drivers do drive to conditions but no-one has spoken to him about driving slower than normal. He agreed that Mr Heron had been telling crews to drive to conditions for the last 2 years.

[25] Mr Nugent said that he did not doubt the productivity figures provided by Mr Heron of an average cargo exchange rate of 804 TEU prior to February 2020 to 503 TEU as measured since 24 February 2020. He offered no explanation for the cargo exchange rate of 708 and 709 on 3 and 4 March 2020 except to suggest it was because the twilight shift were reallocated to loading/offloading the vessel.

Assessment of the evidence

[26] Mr Heron gave his evidence in a clear, thoughtful and forthright manner. I have no reason to doubt his credibility.

[27] Mr Nugent was open and honest in his responses. He made concessions where appropriate even where these were not in his interest. However, where there is a conflict in the evidence of Mr Heron and Mr Nugent I have accepted the evidence of Mr Heron unless I have explicitly stated otherwise.

[28] Whilst Mr Nugent was confident in the evidence he gave he was prepared to amend his evidence in a number of respects when challenged with conflicting evidence. For example, Mr Nugent said that the Reefer area A was opened in November 2019 but when challenged with Mr Heron’s evidence accepted that it opened in August 2019. This does not suggest reasonable confidence can be had in his evidence where there is conflicting evidence. Mr Nugent did not dispute the cargo exchange rate figures given by Mr Heron but could not explain why the matters he said caused the loss in productivity were not reflected in any of the data prior to 24 February 2020, or why there was a considerable lift in productivity to a rate of 708 and 709 TEU on 3 and 4 March 2020, during the period within which his evidence, if accepted, would suggest the opposite should occur.

[29] I do not consider Mr Nugent deliberately misleading and his concessions were testament to this but his concessions went to substantial matters in his evidence that have a bearing on the matter to be decided.

[30] Mr Patchett was both combative and defensive in his answers to relatively straight forward questions although his written evidence was not challenged and can therefore be accepted.

Legislation

[31] Section 418 of the FW Act states:

418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC 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;

the FWC 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.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

[32] Industrial action is defined at s.19 of the FW Act as follows:

19 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).

Submissions

[33] Toll Shipping submits that there has been a downturn in productivity at the terminal in the order of 30% with the cargo exchange rate falling from an average of 804 TEU per day in the period April 2019 to January 2020 to an average of 573 TEU per day during the period 24 February to 3 March 2020 (the go-slow period). The figures used to generate these averages it submits have been properly explained and not challenged by the CFMMEU or Mr Nugent.

[34] Toll Shipping says that there are three questions to be answered by the Commission. First the Commission needs to determine if the action is happening, being threatened, impending or probable, or being organised at the Terminal; second the Commission needs to decide if the CFMMEU is involved in organising such action; and third the form of any Order issued as a result of the above needs to be decided including the period of the order.

[35] A determination of whether action is happening, being threatened, impending or probable, or being organised requires a finding of fact based on the evidence before the Commission. Toll Shipping says that in circumstances where direct evidence is not available it is enough if circumstances allow a reasonable and definite inference to be drawn. Such an inference must be more probable on the primary facts than any other explanation proffered.

[36] In this respect Toll Shipping submits that it is reasonable for me to infer that the reduction in productivity, evidenced though the reduced TEU rate, is caused by a go-slow at the terminal.

[37] While accepting that a ban on overtime would result in a reduction in cargo exchange rate (because of reduced hours of work) such a reduction should only be in the order of about 10% (based on overtime of 1 hour on a 10 hour shift) taking the cargo exchange rate from 800 TEU to about 700 TEU. However, this does not explain the reduction observed of close to 30%.

[38] Toll Shipping submits that, even if the CFMMEU is correct in the effect of all of the matters, this does not explain how the cargo exchange rate could reach over 700 on 3 and 4 March 2020.

[39] Toll Shipping says that Mr Heron was not cross examined on the cargo exchange rate figures in his statement or how they were derived. It submits that they can therefore be accepted.

[40] Toll Shipping submits that it is reasonable for me to infer that the most probable explanation for the decline in productivity over the period 24 February 2020 – 5 March 2020 is a deliberate go-slow campaign.

[41] Further, Toll Shipping says I can be satisfied that the CFMMEU was engaged in organising the industrial action because:

•  Of the high union membership at the Terminal;

•  The CFMMEU represents the employees on site in bargaining for the new enterprise agreement and in other workplace matters;

•  There is no other union on site;

•  CFMMEU officials were present talking to members on 21 February 2020, shortly before the go-slow commenced;

•  The CFMMEU has initiated the various forms of protected industrial action;

•  The go-slow was implemented immediately after protected industrial action; and

•  The high degree of planning necessary having regard to the work of employees.

[42] On these bases Toll Shipping submits that I can infer that the CFMMEU is a participant in organising the go-slow and that such an explanation is more probable than any other.

[43] I deal with the form of the order below.

CFMMEU and Mr Nugent

[44] The CFMMEU submits that, in order to satisfy the conditions necessary for issuing the order sought, I need to find that work was not being carried out as it customarily is; that the action being taken is collective action; and that it is being organised by the CFMMEU.

[45] The CFMMEU says that Toll Shipping relies on average cargo exchange rates to demonstrate a change in productivity. It says that averages are not reliable and suggest some level of uniformity. It submits that the figures relied on by Toll Shipping do not show that employees are working more slowly than they ordinarily would be the case.

[46] Further, the CFMMEU submits that the evidence of Mr Nugent of the cumulative effect of the range of matters he described is not challenged by Toll Shipping. That evidence of Mr Nugent is of increased congestion, some of which occurred prior to 22 February 2020 when the overtime ban was implemented.

[47] The CFMMEU submits that when consideration is given to the container movements on a per minute basis it is easy to see how slight variations to travelling distances or congestion can quickly accumulate to explain a fall in the container exchange rate.

[48] It was put by the CFMMEU that the Commission can accept the compounding effect of the matters raised by Mr Nugent. In particular it submits that the effects of the closure of the Receiving area (area D) caused by the PIN on 20 February 2020 and the implementation of the overtime ban on 22 February 2020 was such that cargo exchange rate was affected and the TEU rate fell.

Consideration

[49] I am satisfied that I can rely on the figures with respect to the cargo exchange rate as set out in the evidence of Mr Heron.

[50] I am satisfied that the figures produced by Mr Heron of the cargo exchange rate, on days when there was loading and unloading, consistently show a rates in the 700s or 800s or above with a peak cargo exchange rate of 1,034 TEU on 13 December 2019 and a low of 418 TEU on 11 June 2019. I have no cause to doubt the average cargo exchange rate of 804 TEU put to me in Mr Heron’s evidence. There is no apparent consistent cargo exchange rate below 600 which might assist in explaining the drop in cargo exchange rate on 24 February 2020.

[51] Further, I am satisfied, on the basis of the material before me that the cargo exchange rate for the period 24 February to 5 March 2020 varied between 475 TEU on 27 February 2020 and 709 TEU on 4 March 2020. The average across these 10 days is a cargo exchange rate of 576 TEU per day.

[52] The figures provided by Mr Heron do not evidence any slow down in the TEU rate over the period April 2019 to January 2020. There is certainly nothing evident in the August/September or December figures (putting aside public holidays) that suggests any noticeable change in TEU rates, taking into account, of course, that they fluctuate on a daily basis.

[53] Further I am not satisfied that the apparent reduction in productivity is attributable to:

•  Wet surface in the Reefer area. I accept that this area has been in operation since August 2019. Water would be on the ground from rain and the refrigeration containers from that time. It is not a recent occurrence and there is no evidence to suggest it has worsened in recent times. If the wet surface was to have an effect on average cargo exchange rates by whatever means (increased congestion, slower movements etc.) it could be expected that this would have been noticeable by some fluctuation in the daily rates but, as observed above, this alone does not appear to be reflected in the daily TEU rates. Neither the CFMMEU nor Mr Nugent could show where any effect was evident;

•  The East End reduction. This reduction occurred on 7 December 2019. If it was to have any effect it could be expected that this would be seen through the December daily TEU figures. Putting aside public holidays, there is no obvious drop off in the cargo exchange rate. The CFMMEU provided no explanation as to why no change is noticeable except to say the effects are cumulative. If I accept the cumulative effect argument it might reasonably be expected to see some impact caused by the combined effect of issues in the Reefer area and the East End reduction. No such effect was identified. I am also satisfied, and accept the evidence, that the new Discharge area opened on 1 January 2020 and not “4 weeks ago” as put by Mr Nugent such that this would have ameliorated the effect, in particular, of the East End reduction;

•  Congestion in the Operations area. If I accept that there has been congestion in Operations area since December 2019 it would be expected to see some effect of this in the January daily TEU figures. Again, by itself there does not appear to be an effect and neither the CFMMEU nor Mr Nugent identified any effect. If I accept that there is a cumulative effect it could reasonably be expected that one could observe some impact from the issues in the Reefer area, the East End reduction and the Operational area congestion. Again, there is no apparent effect in the cargo exchange rate in early January 2020; or

•  The ‘Drive to Conditions’ instruction. This instruction has been in place for 2 years. I do accept that, from time to time, as conditions vary, the instruction will result in changes in driving behaviour. Beyond the PIN notice in the Receivals area nothing of note occurred on 24 February 2020 that explains why such an instruction would result in a loss of productivity as occurred. In any event the immediacy of the effect of the PIN notice would be offset to some degree by general caution, and employees driving to conditions, on the deteriorating surface of the Receival area over the previous 12 months. There is nothing in the material before me that would allow me to conclude that the barricading of a small portion of the Receivals area would have such a drastic effect on productivity either alone, or in conjunction with those matters above.

[54] I do accept that the overtime ban implemented on 24 February 2020 did have an immediate effect on the cargo exchange rate simply because employees were working fewer hours than would otherwise be the case.

[55] Mr Heron said that the overtime hours were about 45 minutes per day while Mr Nugent said it was 2 hours per day for shipping workers and further suggested the overtime ban effecting grey days was critical to the loss of productivity. I do not accept the evidence of Mr Nugent as to the amount of overtime normally worked or the effect of a ban on overtime on grey days (which is weekend overtime used to clear residual congestion and clean up the yard). Apart from the overtime ban effecting ‘grey days’ and this having a knock-on effect to general congestion at the terminal through the week, neither Mr Nugent nor the CFMMEU suggest how a ban on this overtime was manifest in the TEU figures. In particular, neither could explain the increased productivity apparent by the cargo exchange rate of 708 and 709 TEU on 3 and 4 March 2020 in circumstances where, with ever growing congestion and on their submissions, it would be expected that the TEU rate would continue to decrease over time. In this respect I reject Mr Nugent’s suggestion that this was due to twilight crews loading the vessel.

[56] I accept there was substantial drop in productivity from 24 February 2020 (in the order of 29%). I do not accept that this is due to water in the Reefer area, the East End reduction, increased congestion in the Operational area, or the instruction to ‘Drive to Conditions’ either individually or collectively. This leaves the PIN and the overtime ban. I do not accept that the PIN would drive such a reduction when the surface in the Receival area was already degraded and the PIN has resulted in closure of a small part of the area or that the PIN in conjunction with the overtime ban would result in the reduction in productivity seen. I do not accept that the drop in productivity seen would be attributable in full to the overtime ban.

[57] The CFMMEU and the employees were aware of the case being put by Toll Shipping. They had the application and the statement of Mr Heron more than 24 hours before the hearing. The defence put to the claim of Toll Shipping of a go-slow was that there was an explanation for the drop in productivity and that explanation was the cumulative effect of those matters raised in the evidence of Mr Nugent.

[58] I do not accept that those matters I have found had no discernible effect on productivity when combined with the PIN and overtime ban had some cumulative effect such that the cargo exchange rate fell so dramatically and so quickly from 24 February 2020.

[59] In circumstances where I am not convinced that the identified factors caused the loss in productivity and, given no other explanation, I consider it reasonable to infer, and I do therefore find, that the loss of productivity at the Terminal was the result of some action taken by workers at the Terminal. I am also satisfied that the action can be characterised as a go-slow (given the reduction in cargo exchange rate TEU figures). Mr Heron gave evidence – which I accept – that he has observed employees working at a slower rate than he would normally expect to see. That he has not individually spoken to any or all employees about what he has observed might be a failing in management but it does not alter the characterisation of what was observed and what I have found to have occurred.

[60] Having concluded that a go-slow is happening I am satisfied that the action being taken is industrial action as defined in the FW Act in that it is:

the performance of work…in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work…the result of which is a restriction or limitation on, or a delay in, the performance of the work.

[61] Further, I am satisfied that the action that is happening is not protected industrial action. For these reasons I am satisfied that the requirements of s.418(1) of the FW Act are met such that an order must be made.

[62] Further, I am satisfied that the action is being taken collectively by employees. It seems to me implausible that a limited number of employees could cause such a reduction in productivity and nothing was put in evidence to suggest that this was the case. For this reason the order that I issued is directed to all employees.

[63] Mr Nugent denied that he had engaged in a go-slow and it was put that, given this denial, he should be carved out of any order made. The difficulty with this course is that I have rejected Mr Nugent’s alternative explanation for the drop in the cargo exchange rate. I have also found Mr Nugent’s evidence to be not highly reliable. I find no basis to carve Mr Nugent out of the Order.

[64] I am not prepared to conclude that the CFMMEU was involved in organising the go-slow.

[65] Facebook entries of union officials talking to members at around the time the go-slow commenced does not assist me in concluding that the CFMMEU organised the go-slow. The CFMMEU had plausible reasons for meeting with members – protected industrial action in the form of an overtime ban had been organised and it is reasonable that officials should be meeting with members around this time.

[66] Whilst Mr Patchett may have been combative and non-cooperative in his evidence, that the CFMMEU represents employees in bargaining and more generally in workplace matters and that there is no other union at the terminal is not enough, of itself, to allow me to conclude that CFMMEU was involved in the go-slow.

[67] I consider that the presence of the CFMMEU in or near the workplace in the period prior to the commencement of the go-slow can be equally explained by other reasons. I am therefore not prepared to conclude, directly or by inference, that the CFMMEU organised the go-slow. For this reason the Order is not be directed to the CFMMEU.

[68] I am satisfied that the period of the Order should be 3 months. This will not stop employees engaging in protected industrial action (which they have and continue to engage in) and will allow bargaining to continue.

[69] For these reasons I issued the Order 12 on 6 March 2020.

COMMISSIONER

Appearances:

M Felman of Counsel for the Applicant.
E White of Counsel for the CFMMEU and W Nugent.

Hearing details:

2020.
Melbourne:
March 6.

Printed by authority of the Commonwealth Government Printer

<PR717512>

 1   Exhibit A1, paragraphs 38 and 44. Daily figures for the period April 2019 to January 2020 are at attachment CH-5.

 2   Exhibit R2, attachment WN-1.

 3   Exhibit A2, area G.

 4   Exhibit R2, attachment WN-1, area A.

 5   Exhibit A3.

 6   Exhibit R2, attachment WN-1, area B.

 7   Exhibit R2, attachment WN-1, area C.

 8   Exhibit R2, attachment WN-1, area D.

 9   Exhibit R2, attachment WN-1 area E.

 10   Protected industrial action.

 11   Exhibit R2, paragraphs 31 and 35.

 12   PR717269.