Transport Workers’ Union of Australia

[2014] FWC 8691

[2014] FWC 8691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
(B2014/1593)

COMMISSIONER GREGORY MELBOURNE, 3 DECEMBER 2014

Protected action ballot of employees of Qube Logistics (Vic) Pty Ltd.

Introduction

[1] On 18 November 2014 the Commission issued an Order 1 following an application made by the Transport Workers’ Union of Australia (“TWU”) for a protected action ballot order. That Order indicated in clause 1:

“The Transport Workers’ Union of Australia is to hold a protected action ballot of employees of Qube Logistics (Vic) Pty Ltd described in clause 3 of this order.” 2

[2] The employer, Qube Logistics (Vic) Pty Ltd (“Qube”), subsequently made application on 26 November to amend that Order on grounds including the following:

“3. The proposed enterprise agreement covers a number of other sites in addition to Maryvale site, so the Order purports to extend to a much wider group of employees than the subject of the Application.

4. The Order should be limited (to reflect the Application) to the employees of the Australian Paper Mill at Maryvale Victoria.” 3

[3] After receiving the application from Qube the Commission issued a Notice of Listing on 28 November indicating the matter would be listed for mention at 2 p.m. on 2 December. The Commission also attached the following explanatory statement to that Notice of Listing.

“There is a dispute between the parties about whether the terms of the Order issued on 18 November 2014 are consistent with the application made by the Transport Workers’ Union.

The Commission accordingly proposes to list the matter for a mention hearing at 2 p.m. on 2 December 2014 to determine how the dispute should be resolved.

In taking this action the Commission advises that it has not formed a concluded view about how the matter should be dealt with. However, it provides the following views at this point.

After the application was received on 14 November the Commission contacted the employer on 17 November to ascertain their position in response. The employer subsequently indicated it did not “oppose this application at this time.” The Commission then made contact with the TWU to obtain a copy of a draft order, given that a draft was not included with the original application.

The Commission subsequently issued an Order, in terms that reflected the draft order, without noting it referred to a different group of employees from those referred to in the original application. It is also noted that the statutory declaration provided in support of the application refers to members working on site at the Australian Paper Mill, Maryvale.

Given this situation the Commission’s preliminary view is that a new order should issue which states that the group of employees to be balloted are those referred to in the original application. The Commission is also of the view it has the ability to issue a new order in these terms without requiring a further application to be made by either party. However, as indicated this is a preliminary view only. The opportunity remains for either party to make further submissions if they believe this is not an appropriate way to deal with the matter.

As indicated, the matter will be relisted for a further mention hearing at 2 p.m. on 2 December 2014. Either party may appear in person, or by telephone if they prefer. Parties wishing to appear by telephone they advise the Commission in advance of the appropriate contact number.” 4

[4] The mention hearing proceeded on 2 December and the parties provided the Commission with an explanation of their respective positions by way of outline. The TWU submits, in summary, the Order issued on 18 November is appropriate and should remain in place. Qube, on the other hand, submits the Order does not reflect the original application and therefore should be amended or, alternatively, should not have ongoing effect until such time as this issue has been resolved.

[5] After due consideration of these submissions and all the circumstances involved in this matter the Commission has decided to act, pursuant to s.602 of the Fair Work Act 2009, to correct what it considers to be an obvious error in both the substance and form of the Order issued on 18 November 2014. This decision sets out the reasons why the Commission is satisfied this action is appropriate in all the circumstances.

Background

[6] On Friday, 14 November 2014 the TWU made application for a protected action ballot order. The application indicated the employer to be covered by the proposed agreement was “Qube Logistics Victoria,” and under the heading “3. Group or groups of employees to be balloted” stated:

“Employees of the Respondent at the Australian Paper Mill at Maryvale Victoria who are members of the Transport Workers’ Union of Australia and for whom the Transport Workers’ Union of Australia is their bargaining agent and who would be covered by the proposed Enterprise Agreement.” 5

[7] The application was supported by a Statutory Declaration from Mr Michael Hugh Wirrick, which indicated he is a “Senior Organiser of the Transport Workers Union of Australia (Vic/Tas) Branch.” 6 Mr Wirrick’s Statutory Declaration stated at paragraph 3:

“3. I have responsibility for bargaining in relation to a proposed enterprise agreement with Qube Logistics Victoria and its employee’s, that are TWU Members that work onsite at the Australian Paper Mill, Maryvale.” 7

[8] It also contained the following paragraph under the heading “Section 437 requirements.”

“9. Employees of Qube Logistics Victoria, that are employed onsite at the Australian Paper Mill Maryvale Victoria, that are TWU Members, who will be covered by the proposed enterprise agreement *Annexure and are represented by the TWU as the bargaining representative.” 8

[9] It also contained the following clause under the heading “Section 443 requirements”:

“14. 443(1)(b). The union has been and is genuinely trying to reach agreement with the employer as evidenced by the following:

14.1 The TWU submitted log of claims to Qube Logistics dated 27 March 2014 in relation to a proposed enterprise agreement for Members of the Company’s Victoria Dock/Somerton sites. The proposed enterprise agreement was to have an *annexure that would contain the terms and conditions that would apply to the Maryvale site. Discussions re the Maryvale Terms and conditions initially occurred when I met with Qube management at their Enterprize Road Office on February 17, 2014. Neither non-permitted nor unlawful terms are included in the log of claims.

* The current total of six (6) Employees that were to have their Terms and Conditions covered off in the proposed annexure are unique to Qube Logistics, in Victoria. The six work a 4on4off 12 hour shift arrangement, four work rotating day/night. Two work day shift only. When Qube Logistics acquired the contract, in March 2012, the 6 employees were offered positions with Qube with terms and conditions consistent with their previous employer under the Westgate Ports Services PTY LTD (Victoria Dock Transport & Warehousing Operations) Enterprise Agreement 2010. They do not fall under the Qube P & O Trans Australia (Vic) PTY LTD Workplace Agreement 2011. With the renegotiation of that Enterprise Agreement it is Qube’s intention to have their Maryvale employees fall under the “new” E.A. That, at this stage, that would be detrimental to the Maryvale Members that I represent.” 9

[10] The Statutory Declaration continued to detail the dates of a series of meetings between the parties that have taken place, including meetings at the Maryvale site, and stated in conclusion:

“In between the meetings listed above there were numerous telephone discussions and exchanges of emails with wage and allowance calculations attached to them. The Maryvale meetings listed above were open and attended by TWU Members that were able to attend with Senior Management of Qube Logistics some of who travelled in from Interstate.” 10

[11] The Statutory Declaration concluded by indicating at paragraph 15:

“Agreement has been reached about some matters however the parties have been unable to finalise agreement in relation to various matters which include, but are not limited to, the following:

● Rates of Pay.

● Ability to cover absenteeism as overtime shifts.

● Annexure & Wording in EA document.

● Redundancy.” 11

[12] The Statutory Declaration also contained an Attachment A and indicated it was “a copy of the log of claims, endorsed by members,” however, the copy provided to the Commission with the Statutory Declaration was illegible.

[13] On Monday, 17 November the Commission forwarded an email to Mr Shaun Harris, who was indicated in the application to be the relevant contact person for Qube, stating:

“Dear Mr Harris,

The Transport Workers’ Union has filed with the Fair Work Commission a s.437 application for a protected action ballot by employees of Qube Logistics Victoria (the Company).

Could you please advise in writing by 4:00pm TODAY whether the Company opposes an order being issued in this matter.

If the Company does not object to the application, an order may be issued in the matter on the papers. However, if the Company objects and would like to make a submission in respect of the application, please let me know as soon as possible so that a hearing can be arranged.” 12

[14] Mr Harris replied later that day indicating that “Qube do not oppose this application at this time.” 13 The Commission then made contact with the TWU requesting a draft order be provided as it had not been provided with the original application. A draft order was accordingly forwarded by the Union on the following day, and it provided the basis of the Order issued by the Commission later that day.

[15] However, as indicated Qube subsequently took issue with the terms of that Order on the basis that it does not reflect the terms of the original application by the TWU.

[16] The statement that was provided to the parties on 28 November, in conjunction with the Notice of Listing, provided the Commission’s preliminary views for the parties to consider. It also indicated the Commission was prepared to consider any further views from the parties before it came to a concluded view.

Consideration

[17] In the proceedings on 2 December Qube indicated that the Maryvale site is only one of several locations in Victoria where it employs members of the TWU, and the Order has accordingly extended beyond the terms of the original application to provide for all of its employees who are members of the TWU to be balloted, instead of only those at the Maryvale site. It continued to indicate that the Order is therefore “functus officio” in that it extends beyond the terms of the original application.

[18] The TWU rejects this view and submits the Order has been expressed in appropriate terms. It submits instead that the fault lies with Qube in that it has misapprehended the terms of the original application. It submits the description of the group or groups of employees to be balloted in the application, which has been set out at an earlier point in this decision, extends to include each of the following groups of employees; the TWU’s members at the Australian Paper Mill at Maryvale, and its’ members otherwise employed by Qube elsewhere, who would be covered by the proposed enterprise agreement.

[19] Qube rejects this submission and submits instead that the description of the employees to be balloted in paragraph 3 in the application is intended to be cumulative. In other words it intends to apply to those employees of Qube at the Australian Paper Mill at Maryvale who are members of the TWU, and for whom the Union is their bargaining agent, and who would be covered by the proposed enterprise agreement. It also makes reference to the fact the application makes specific reference to one site, being the site at Maryvale, and notes that the Statutory Declaration from Mr Wirrick deals with the particular issues in dispute at that site.

[20] Further submissions were made in the proceedings about the power of the Commission to amend or revoke or otherwise deal with the Order. Qube submitted it could be corrected pursuant to s.602 of the Act. It also submitted s.449(2)(d) enabled the Commission to issue a direction to the Australian Electoral Commission to not proceed with a ballot across all Qube sites until such time as the dispute over the terms of the Order has been resolved.

[21] It is an acknowledged at this point that the Commission has not had the benefit of hearing detailed submissions from the parties about their respective submissions in regard to this matter. However, the Commission is satisfied based on the submissions that have been made, and all the circumstances involved in this matter, that it is now appropriate under s.602 to correct what the Commission considers to be an inadvertent but obvious error that was made when the Order was issued.

[22] The circumstances that have led to this situation have already been set out. An application was made by the TWU, but it did not attach a draft order with that application. Qube indicated within the two day time period after the application was made that it did not oppose the application. The Commission then made contact with the TWU to obtain a draft order given that a draft was not provided when the application was lodged. The terms of that draft order then provided the basis for the Order that was subsequently issued on 18 November 2014. However, as part of that process the Commission failed to ensure the terms of that Order reflected the group of employees who were intended to be balloted in the original application. It instead issued an order in the terms contained in the draft which did not reflect the content of the application. The Commission is accordingly satisfied that it made an obvious error in issuing an Order in these terms.

[23] Section 602 of the Act provides as follows:

“The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).” 14

[24] Section 602 continues to indicate that the Commission may act in this regard on its own initiative or on application.

[25] The Commission is satisfied that given the circumstances detailed in this decision it is entirely appropriate to exercise the powers contained in s.602 to correct what it considers to be an “obvious error” in relation to a decision or instrument.

[26] In coming to this conclusion the Commission rejects the interpretation sought to be placed by the TWU on the wording in the application under the heading “Group or group of employees to be balloted.” The TWU submits that the words should be read to indicate the employees to be balloted include both employees of Qube at the Australian Paper Mill at Maryvale, and employees of Qube who are members of the Union more generally. The Commission rejects any suggestion that based on a plain and ordinary meaning of those words, or on any other meaning, that they can be read and interpreted in this way. It is also noted that there are various other references, which have already been referred to, in the Statutory Declaration of Mr Wirrick which lead to the conclusion that the application was only ever intended to apply to TWU members employed onsite at the Australian Paper Mill at Maryvale and to be covered by the proposed enterprise agreement “Annexure,” as it is referred to in the Declaration. For example, the Statutory Declaration refers to “discussions re the Maryvale terms and conditions,” and to “the Maryvale members that I represent.”

Conclusion

[27] The Commission has given consideration to what has occurred from the time the application was made until the time that an Order was issued. It has also given consideration to the respective submissions of the parties in the proceedings on 2 December 2014. It is also mindful of the fact that in performing its functions or exercising its powers under the Act it must take into account, under s.578, “equity, good conscience and the merits of the matter.”

[28] Based on all of these considerations the Commission is satisfied it is appropriate to exercise the power provided to it under s.602. It intends to correct what it considers to be an obvious error made when it issued the Order on 18 November 2014, in that the terms of that Order extend beyond the terms of the original application. The Order will accordingly be corrected to indicate that the group or groups of employees to be balloted specifies those identified in the application.

[29] A Correction Order issued under s.602 of the Act will be made in accordance with this Decision.

COMMISSIONER

Appearances:

B Baarini of the Transport Workers’ Union of Australia appeared on behalf of the Applicant.

G Jolly of Minter Ellison appeared on behalf of Qube Logistics Victoria.

Hearing details:

2014.

Melbourne:

2 December.

 1   PR557854

 2   Ibid at cl.1

 3   Form F1 submitted by the Respondent on 26 November 2014 at question 2.2

 4   Notice of Listing sent 28 November 2014

 5   Form F34 submitted by the Applicant on 14 November 2014 at question 3

 6   Statutory Declaration of Michael Hugh Wirrick at para 2

 7   Ibid at para 3

 8   Ibid at para 9

 9   Ibid at para 14-14.1

 10   Ibid at para 14.2

 11   Ibid at para 15

 12   Email from the Chambers of Commissioner Gregory to Shaun Harris sent 17 November 2014

 13   Email from Shaun Harris to the Chambers of Commissioner Gregory sent 17 November 2014

 14   Fair Work Act 2009 (Cth) at s.602(1)

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