1
[2013] FWC 2394
DECISION
Fair Work Act 2009
s.739—Dispute resolution
Maritime Union of Australia, The
v
DP World Brisbane Pty Ltd; DP World (Fremantle) Limited; DP World
Melbourne Limited; DP World Sydney Limited
(C2012/1405)
DEPUTY PRESIDENT BOOTH SYDNEY, 19 APRIL 2013
Alleged dispute arising in the workplace in regard to the application of the Agreement -
Dispute resolution process - Jurisdiction of the Commission
[1] In this matter the Maritime Union of Australia (MUA) asks the Fair Work
Commission (the Commission) to arbitrate to resolve a dispute between the MUA and DP
World (the parties) concerning the DP World Alcohol and Other Drugs Policy 2012 (the AOD
Policy). DP World says that the Commission should not arbitrate to resolve the dispute
because to do so would exceed the jurisdiction of the Commission. This decision addresses
the question of whether or not the Commission has the power to arbitrate to resolve the
dispute.
Background
[2] On 11 November 2012 the MUA made an application to Fair Work Australia (FWA),
as it then was, to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act)
and the dispute resolution procedure contained in clause 24 of the relevant enterprise
agreements, namely DP World Brisbane Enterprise Agreement 2011; DP World Fremantle
Enterprise Agreement 2011; DP World Melbourne Enterprise Agreement 2011 and DP World
Sydney Enterprise Agreement (the Agreements). Each of the Agreements has the identical
terms in Part A of the relevant agreement including clause 24 Dispute Resolution.
[3] The matter came before me on 13 November in conference and subsequently the
parties conducted direct discussion and exchanged correspondence in an effort to resolve the
dispute. On 10 December 2012 the parties again came before me in conference however the
dispute was not resolved and on 11 February 2012 the MUA requested that the matter be
relisted for mention for the matter to be programmed for arbitration. This mention took place
on 21 February.
[4] On this occasion an application to intervene was made by the Transport Workers’
Union (TWU). This decision does not address that application.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 2394
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[5] The MUA was represented by Mr Michael Burns Acting National Legal Officer and
DP World was represented by Ms Jessica Blomfield National Manager Employee Relations
Operations. The TWU was represented by Mr Adam Hatcher SC.
[6] It was agreed that my decision would be made on the papers. In accordance with
directions issued the initial submission from DP World was received on 8 March, the
submission in response was received from MUA on 22 March and on 28 March a submission
in reply was received from DP World. This decision has been made based upon these written
submissions.
Competing arguments
[7] DP World says that the Commission should not arbitrate to resolve the dispute because
to do so would exceed the jurisdiction of the Commission.
[8] They submit that the Commission is only empowered to arbitrate about a dispute
arising in the workplace in regard to the application of the agreement or the National
Employment Standards (NES), and only where the dispute has not been resolved by the
procedures in (a) - (d) of clause 24 of the Agreements and no stoppage of work has occurred
in relation to the dispute.
[9] It is common ground that the dispute is not about the NES, that the dispute has not
been resolved by the procedures in (a) - (d) of clause 24 of the Agreements and it has not been
alleged that there has been any stoppage of work in relation to the dispute.
[10] So what remains is the contention that the Commission is only empowered to arbitrate
about a dispute arising in the workplace in regard to the application of the Agreements.
[11] DP World contends that the dispute is about the both content of the Policy and an
alleged failure to consult in relation to the Policy. As such it is not a dispute in regard to the
application of the Agreements because:
the Policy does not form part of the Agreements
the Policy is not inconsistent with the Agreements
the Policy does not engage any other provisions of the Agreements
the consultation provisions of the Agreements do not apply to the Policy
[12] The MUA contends that the Commission has the power to arbitrate to resolve the
dispute. They say the dispute is about:
the application of clause 8.10 of the Agreements which deals with the introduction of
policies
the application of clause 17.8 of the Agreements which deals with the content of drug
and alcohol policies
the application of clause 22 of the Agreements which deals with the introduction of
change
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a dispute or disagreement by the union in relation to an intended change to policies
and/or procedures
[13] They submit that the dispute is a dispute arising in the workplace in regard to the
application of the Agreements and as such clause 24 of the Agreements empowers the
Commission to arbitrate to resolve the dispute. They add that clause 8.10 of the Agreements
expressly allows clause 24 to be used to resolve any dispute or disagreement over any change
being inserted into a policy.
[14] Although DP World and the MUA describe the dispute using different language, there
does not seem to me to be a material difference in the characterisation of the dispute. The
effect of the MUA’s description is largely the same as that of DP World and I conclude that
the dispute is about the content and implementation of the Policy and an alleged failure to
properly consult in relation to the content and implementation of the Policy.
Source of jurisdiction
[15] In any matter before the Commission the tribunal member is required to consider,
implicitly or explicitly, whether they have the jurisdiction to deal with the matter. The source
of the Commission’s jurisdiction is the Act.
[16] A Full Bench of FWA, as it then was, in the case Woolworths Ltd trading as Produce
and Recycling Distribution Centre 1 (the Woolworths case) provided a cogent explanation of
the source of the Commission’s jurisdiction in relation to dispute resolution procedures.
Although they were addressing a question not arising in this matter, namely, whether an
enterprise agreement could be approved when the dispute resolution procedure contained in
the agreement required the parties agreement to arbitrate a dispute on a case by case basis,
their outline and comments on the relevant sections of the Act provide guidance in this matter.
[17] At paragraphs 17 - 23 they say:
“[17] We turn first to some important elements of the statutory scheme which provide
the context in which s.186(6) must be interpreted. Section 595 sets out Fair Work
Australia’s power to deal with disputes generally and ss.738 and 739 set out Fair Work
Australia’s powers to deal with dispute resolution terms in, relevantly, enterprise
agreements.
[18] Section 595 of the Fair Work Act reads:
“595 FWA’s power to deal with disputes
(1) FWA may deal with a dispute only if FWA is expressly authorised to do so
under or in accordance with another provision of this Act.
(2) FWA may deal with a dispute (other than by arbitration) as it considers
appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
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(3) FWA may deal with a dispute by arbitration (including by making any
orders it considers appropriate) only if FWA is expressly authorised to do so
under or in accordance with another provision of this Act.
Example: Parties may consent to FWA arbitrating a bargaining dispute (see
subsection 240(4)).
(4) In dealing with a dispute, FWA may exercise any powers it has under this
Subdivision.
Example: FWA could direct a person to attend a conference under
section 592.
(5) To avoid doubt, FWA must not exercise any of the powers referred to in
subsection (2) or (3) in relation to a matter before FWA except as authorised by
this section.”
[19] The section is concerned with the powers the tribunal may exercise in dealing with
disputes. Section 595(1) provides that Fair Work Australia may only deal with a
dispute if it is expressly authorised to do so. Section 595(2) provides that the tribunal
may deal with a dispute by mediation, conciliation, making a recommendation or
expressing an opinion subject to the qualification that it may not deal with the dispute
by arbitration. Section 595(3) permits the tribunal to arbitrate if it is expressly
authorised to do so. Section 595(4) operates to confer procedural powers. It seems to
us clear enough from the text of these provisions that the legislature intended that Fair
Work Australia can deploy voluntary methods of dispute resolution without the
consent of the parties to the dispute, provided the dispute is one with which it is
authorised to deal, but can only arbitrate if it has been specifically empowered to do so.
[20] Sections 738 and 739 are also directly relevant. They provide:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for
dealing with disputes, including a term in accordance with section 146;
or
(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) a contract of employment or other written agreement includes a term
that provides a procedure for dealing with disputes between the
employer and the employee, to the extent that the dispute is about any
matters in relation to the National Employment Standards or a safety
net contractual entitlement; or
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(d) a determination under the Public Service Act 1999 includes a term
that provides a procedure for dealing with disputes arising under the
determination or in relation to the National Employment Standards.
739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows
FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the extent that the dispute is about
whether an employer had reasonable business grounds under subsection 65 (5)
or 76 (4), unless:
(a) the parties have agreed in a contract of employment, enterprise
agreement or other written agreement to FWA dealing with the matter;
or
(b) a determination under the Public Service Act 1999 authorises FWA
to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating
to a term of an enterprise agreement that has the same (or substantially
the same) effect as subsection 65(5) or 76(4) (see also subsection
55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by
the term.
(4) If, in accordance with the term, the parties have agreed that FWA may
arbitrate (however described) the dispute, FWA may do so.
Note: FWA 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), FWA must not make a decision that is inconsistent
with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the
dispute.”
[21] Section 738 specifies the type of dispute resolution terms to which the division
applies. Section 738(b) makes it clear that the division applies in relation to a dispute
resolution procedure of the kind described in s.186(6). Section 739(1) provides that the
section applies if a term in s.738 requires or allows Fair Work Australia to deal with a
dispute. Section 739(2) is not relevant. Section 739(3) provides that a dispute
resolution term can limit the powers available to Fair Work Australia to settle a
dispute. Section 739(4) sets out the circumstances in which Fair Work Australia may
arbitrate a dispute, providing that if the parties have agreed that Fair Work Australia
may arbitrate, Fair Work Australia may do so. It appears to us that s.739(4) strongly
[2013] FWC 2394
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implies the negative stipulation that if the parties have not agreed, Fair Work Australia
has no power to arbitrate.
[22] The operation of these provisions in relation to dispute resolution terms in
enterprise agreements is specifically referred to in the Explanatory Memorandum to
the Fair Work Bill 2008. We refer first to paragraph 2290. That paragraph deals with
the relationship between s.595 and s.739. It reads:
“2290. Subclause 595(4) ensures that, when FWA is dealing with any of these
disputes, FWA can exercise any of its powers under Subdivision B. For
example, FWA could direct a person to attend a conference under clause 592.
However, there is an exception for Part 6-2 disputes. The procedure in the
modern award, enterprise agreement, workplace determination or contract of
employment can limit the powers that FWA can exercise in dealing with the
dispute (see subclause 739(3)).”
[23] This paragraph repeats the direct indication in s.739(3) that a dispute resolution
term might limit the powers otherwise available to Fair Work Australia. It appears
from the reference to s.595(4) that the paragraph is primarily referring to the
procedural powers conferred by Subdivision B rather than the power to arbitrate
Relevantly, however, the concluding sentence of the paragraph supports the
implication in the words of s.739(4) that in the absence of agreement Fair Work
Australia has no power to arbitrate. If the legislature has specifically provided for
limits upon the use of arbitral power pursuant to dispute resolution procedures, it is
difficult to see how the conclusion could be sustained that “arbitration is a prerequisite
to the approval of an agreement.”
[18] The Woolworths case is authority for the proposition that to be approved, although an
enterprise agreement must contain a procedure to settle disputes (s.186), the terms of the
procedure are defined by the agreement. In exercising the power of arbitration s. 739 of the
Act empowers the Commission to act only in accordance with the terms of the procedure.
[19] DP World and MUA relied upon the decision of the Full Bench of the Commission in
Warkworth Mining Limited v Construction, Forestry, Mining and Energy Union2 as authority
for the same proposition.
[20] In this decision the Full Bench at paragraphs 19 and 23 said:
“[19] In our opinion the starting point for Commissioner Wilks should have been a
consideration of the terms of the dispute settlement procedure and a decision about
what it "empowered" the Commission to do. In this consideration one does not
commence with a presumption that the Commission will have been empowered to
undertake any particular role, be it conciliation and/or arbitration. The question is what
the parties to the agreement have decided the role of the Commission will be, which
role ideally will have made clear in the words used in the relevant clause.”
“[23] The appellant submitted the Commissioner should have found that whatever
may have been the agreed role for the Commission, it was not arbitration. It submits
that was the only enquiry that needed to have been undertaken and only the words
used in clause 16 were relevant to that enquiry. It is of course appropriate when
[2013] FWC 2394
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construing a provision in an agreement to do so together with a consideration of the
other provisions of the agreement and the structure of the agreement. This approach is
referred to as construing a particular clause in the context of the agreement as a whole.
It was permissible for the Commissioner, when interpreting the provisions of clause
16, to consider the agreement as a whole.....”
[21] Clause 24 of the Agreements is in the following terms:
“Dispute Resolution
In the event of a dispute arising in the workplace in regard to the application of this
Agreement or the National Employment Standards (other than under s65(5) and 76(4)
of the Act), the procedure to be followed to resolve the matter shall be as follows:
24.1 The parties shall attempt to resolve the matter at the workplace level including
but not limited to.
24.1.1 The Employee, the Employee's delegate (if requested), and his or her
supervisor, meeting and conferring on the matter; and
(a) If the matter is not resolved at such meeting, the parties arranging further
discussions involving more senior levels of management, Employee
Representatives and Union officials (as appropriate).
(b) If the matter is not resolved at such a meeting the parties arranging further
discussions involving more senior levels of management (as appropriate).
(c) If the matter cannot be resolved at workplace level, the matter may be
referred by either party to National level for discussion between the parties,
after which time either party may refer the matter to FWA for conciliation.
(d) If the matter is referred for conciliation, both parties will participate in the
process in good faith.
(e) 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 arbitration if
necessary in which case the decision will be accepted by the parties subject
to any appeal rights.
(f) 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.
24.1.2 The parties must co-operate to ensure that the dispute resolution procedures are
carried out as quickly as is reasonably possible.”
[22] Clause 8.10 refers certain matters to clause 24. It reads:
[2013] FWC 2394
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“8.10 The Company may from time to time change its policies that apply to
Employees in addition to this Agreement. In the event of a policy change that may
have any impact on the terms of conditions of employment (other then (sic) where
those terms and conditions are expressly contained within this Agreement), each
Employee will be appropriately advised of the change. Nothing contained in a policy
or procedure shall be operative nor shall it have any effect to the extent that its
inclusion or implementation is inconsistent with the intent of this Agreement. Prior to
any change being inserted into a policy, any dispute or disagreement by Employees or
the Union in relation to intended change (sic) policies and/or procedures shall be
progressed through clause 24.0 Dispute Resolution.
To attract the provisions of clause 24 of the Agreements the dispute must, inter alia, be
a dispute arising in the workplace in regard to the application of the Agreements.
Furthermore clause 8.10 specifically directs “any dispute or disagreement by
Employees or the Union in relation to intended change (sic) policies and/or
procedures” to clause 24.”
[23] In the Federal Court case Construction, Electrical, Electronic, Energy, Information,
Postal, Plumbing and Allied Services Union of Australia v Theiss Pty Ltd3 the use of a dispute
resolution procedure was considered. The language of the procedure was somewhat different
to the language in clause 24 of the Agreements, however the question of whether the dispute
related to the application of the agreement was central to the consideration and as such the
decision provides guidance in this matter.
[24] Justice Tracey said at paragraphs 38-42:
“[38] The CEPU submitted that, once it had advised the respondents that a dispute
existed in relation to the decision to vary the rostering arrangements, Clause 15.1 of
the Agreement was engaged and both parties were required to comply with its terms.
The respondents’ unwillingness to do so constituted contraventions or proposed
contraventions of the Agreement.
[39] The principal contention of the respondents was that they had an “unqualified
right” to make and implement their decision to terminate the 4 on 4 off roster and
revert to the 56 hour roster without first having to comply with the dispute settling
procedure. In particular, they contended that the procedure had no application in the
present circumstances and that there was, as a result, no obligation on them to
maintain the status quo until all the prescribed steps had been taken.
[40] The respondents accepted that the language of Clause 15.1(a)(i) was broad but
submitted that the words were “still predicated on the ‘application or interpretation of
the agreement’” ......
[41] The respondents also pointed to the provisions of s 739(5) of the Act which
qualifies the arbitral power conferred on Fair Work Australia by Clause 15.1(b)(vi) of
the Agreement.
[2013] FWC 2394
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CONSIDERATION
[42] The respondents’ contentions fall to be tested by reference to the language
employed by the parties in Clause 15(1) of their Agreement, understood in an
industrial context.”
And at paragraph 47-48
“[47] Attention must, however, first be directed to the language of Clause 15.1. The
Clause is plainly intended to have operation in a wide range of circumstances. It
prescribes procedures which are designed (relevantly) “to settle disputes and
grievances relating to any and all matters arising out of or in connection with the
application or interpretation of this Agreement ...”: see Clause 15.1(a)(i). The
Agreement contemplates that during its life, disputes and grievances will arise
between the parties which will need to be resolved. Not all disputes and grievances
which might conceivably occur on the project will be subject to the dispute settling
procedure. The operation of Clause 15.1 will only be attracted if they can be linked to
“the application or interpretation” of the Agreement.
[48] The draftsman has employed very broad language in forging the link between
relevant disputes and grievances and the Agreement. The link will be established if the
disputes and grievances can be said to relate to “any and all matters arising out of or
in connection with” the application or interpretation of the Agreement.”
And at paragraph 53
“[53] The central construction dispute between the parties centred on the word
“application”. The respondents submitted that their decision to exercise the
discretionary power conferred on them by Clause 1.3 of Part 2 of Schedule 1A to
terminate the operation of the 4 on 4 off roster was not an application of the
Agreement within the meaning of Clause 15.1(a)(i).”
And at paragraph 63-64
“[63] ........In the end I have concluded that the issue is to be resolved, principally, by
reference to the language employed by the parties in framing their agreement. I
consider that language to be clear.
[64] In my view the ordinary and natural meaning of the word “application” extends to
a decision by the respondents, made under Clause 1.3, to terminate the operation of the
4 on 4 off rostering arrangement. In doing so they have made use of or applied the
provision to bring about a change for which the Agreement provides.”
Consideration
[25] I have characterised the dispute4 as being about the content and implementation of the
Policy and an alleged failure to properly consult in relation to the content and implementation
of the Policy.
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The content and implementation of policy
[26] The Policy is the subject of the Agreements in clause 17.8 which reads as follows:
“17.8 Drug and Alcohol testing
The parties acknowledge that the Company's drug and alcohol policy will incorporate
a testing regime which includes random drug and alcohol testing and will utilise swab
testing.”
This clause does not set out the full terms of the policy but reflects the parties agreement that
there is a policy and that it will have certain features. If either of the parties were to repudiate
random drug and alcohol testing and swab testing they would, arguably, be in breach of the
Agreements. If there is a dispute about the implementation of random drug and alcohol testing
and swab testing then it seems to me that it falls squarely in the category of a dispute about
the application of the Agreements in the manner described in Construction, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Theiss Pty Ltd5.
[27] DP World say that the Policy does not form part of the Agreements. I agree. The
Policy itself is not incorporated into the Agreements such that non-compliance with the Policy
would be a breach of the Agreements. However that there is a policy and that it will contain
certain features is a part of the Agreements and it is a part of the Agreements over which there
is a dispute.
[28] Mr Burns for the MUA described the areas of difference between the parties as being
in relation to cut off levels, target testing, confirmatory urine testing, delegates participation
and discipline. Some or all of these matters arise from the way in which random testing and
swab testing is implemented and the consequences of the implementation. As such they are
inextricably linked to clause 17.8 of the Agreements.
[29] It is important not to conflate the question of whether the dispute about the Policy is a
dispute regarding the application of the Agreements with the question of whether the
Commission would have the power to order certain changes to the Policy. That would be a
matter for consideration during arbitration on the merits. Some outcomes would be within the
power of the Commission to order and some would not. However it is impossible to
determine this without hearing the merit arguments.
[30] The MUA say that in addition to the general prescription in clause 24,clause 8.10
means that such a dispute may be progressed through clause 24 of the Agreements. DP World
say only disputes about whether an employee has been advised of a policy change or whether
the policy change is inconsistent with the Agreements may be progressed through Clause 24
at the direction of clause 8.10. If that is what the parties intended then the drafting of the
clause did not achieve it. The words are clear. “Prior to any change being inserted into a
policy, any dispute or disagreement by Employees or the Union in relation to intended change
(sic) policies and/or procedures shall be progressed through clause 24.0 Dispute Resolution.”
[31] I find that a dispute about the content and implementation of the Policy is a dispute
capable of being arbitrated by the Commission. If I am wrong about clause 8.10 and the
words are to be read as applying only in the circumstances advanced by DP World then my
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conclusion about the power of the Commission stands on my reading of clause 24 of the
Agreements guided by the authorities referred to.
Alleged failure to properly consult in relation to the Policy.
[32] DP World say that it does not have an obligation to consult in relation to the Policy
pursuant to clause 22 of the Agreements as the introduction of the Policy cannot be
characterised as a change in production, program, organisation, structure or technology and
even if it could be characterised as such it is not likely to have significant effects on
employees as described in the clause. The MUA say that clause 22 of the Agreements does
apply to their dispute because the clause specifically refers to company policies and the Policy
does relate to production, program, organisation and/or technology as contemplated by
clauses 22.1 and 22.2 because its purpose is to eliminate risks to all of those company
elements caused by the consumption of alcohol and other drugs.
[33] Clause 22 of the agreements reads as follows:
“22.0 Introduction of change
22.1 This Agreement recognises that Company management is obligated to carry out
its responsibilities in accordance with Company policies and additionally, where such
policies relating to production, program, organisation or technology may also affect
the rights and interests of its Employees, Company management is also obligated to
consider the rights and interests of its Employees in the implementation of such
policies. Accordingly:
22.2 Company duty to notify
22.2.1 Where the Company has made a definite decision to introduce changes
in production, program, organisation, structure or technology that are likely to
have significant effects on Employees, the Company undertakes, to notify the
Employees who may be affected by the proposed changes and the National
Secretary and relevant Branch Secretary of the Union.
22.2.2 Without limiting the generality thereof, significant effects includes
termination of employment, changes in the composition, operation or size of
the workforce or in the skills required, the elimination or diminution of job
opportunities, promotion opportunities or job tenure, the alteration of hours of
work, the need for retraining or transfer of Employees to other work or
locations and the restructuring of jobs and the use of contractors.
22.3 Company duty to discuss change
22.3.1 The Company undertakes to discuss with the Employees affected and
the Union, inter alia, the introduction of the changes referred to in clause 22.2,
the effects the changes are likely to have on Employees, measures to avert or
mitigate any adverse effects of such changes on Employees and give prompt
consideration to matters raised by the Employees and/or the Union in relation
to the changes.
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22.3.2 The discussion shall commence as early as practicable after a decision
has been made by the Company to make the changes referred to in clause 22.2.
For the purposes of such discussion, the Company undertakes to provide in
writing to the Employees concerned and the Union, all appropriate information
about the changes including the nature of the proposed changes, the expected
effects of the changes on Employees and any other matters likely to affect
Employees.
22.4 Implementation of change
22.4.1 It is agreed between the parties that after the above notification and
discussion have taken place that the Company, after careful consideration of
the views of Employees may implement the change with thirty (30) days
notice.
22.4.2 Where subject to the provisions of the clause, the Company exercises its
rights to implement change in the workplace and the Union disagrees with that
decision, subject to there being no stoppage of work as a result of the decision
of the Company, the Union may refer the matter in dispute to FWA for
conciliation and arbitration if necessary.
22.5 Roster Changes
22.5.1 The rosters within this Agreement are based on current ship berthing
arrangements at the commencement of this Agreement and the salaries reflect
those rosters. The basis for any roster is to provide secure permanent rostered
jobs and maintain as much regularity and predictability of working shifts as
possible as well as the flexibility to ensure rostered shifts are generally worked
within an Employee's primary skill.
22.5.2 When ship berthing arrangements change and the Company has an
essential need for roster changes, the Union/Employees. shall provide the
flexibility to address the necessary changes. Any such changes will be
implemented in accordance with clauses 22.3 and 22.4. In these circumstances,
information relating to changed berthing arrangements will be provided to the
Union and Employees to facilitate such discussions.
22.5.3 The requirement for roster change may not only be based on changed
working arrangements, but also be based on maintaining and increasing, where
appropriate, permanent rostered jobs and ensuring shifts are generally worked
within an Employee's primary skill so that the integrity of the roster is
maintained.
22.5.4 Any change agreed shall not be inconsistent with the intent of this
Agreement, and shall not erode or diminish conditions of employment. Any
change to a roster may occur only after all other mechanisms and alternatives
have been considered and proved ineffective.”
[34] The approach to the interpretation of industrial instruments such as enterprise
agreements is well known. It starts with an examination of the language of the instrument. In
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Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue6 the High Court (Hayne,
Heydon, Crennan and Kiefel JJ) said at paragraph 47:
“This Court has stated on many occasions that the task of statutory construction must
begin with a consideration of the text itself. Historical considerations and extrinsic
materials cannot be relied on to displace the clear meaning of the text. The language
which has actually been employed in the text of legislation is the surest guide to
legislative intention. The meaning of the text may require consideration of the context,
which includes the general purpose and policy of a provision, in particular the
mischief it is seeking to remedy.”
[35] If there is doubt then the industrial context is to be considered. In Codelfa
Construction Pty Ltd v State Rail Authority of NSW 7 Mason J said at paragraph 22:
“The true rule is that evidence of surrounding circumstances is admissible to assist in
the interpretation of the contract if the language is ambiguous or susceptible of more
than one meaning. But it is not admissible to contradict the language of the contract
when it has a plain meaning.”
[36] The conventional approach was helpfully summarised in a recent Full Bench in the
case Amezdroz & Son Pty Ltd trading as Wettenhalls Group v Transport Workers’ Union of
Australia 8 where they said at paragraph 29:
“[29] In considering the context of the clause 7.5.3 of the agreement, including the
broader context of the agreement and the circumstances in which it was made, the
Commissioner did not depart from the conventional approach to the interpretation of
industrial instruments in which:
• Industrial context and purpose is relevant; 11
• The context may extend beyond the immediate agreement provision; 12
• The language of an agreement must be construed in context, having regard to the
subject matter and the wording of the entire agreement; and 13
• The context includes the circumstances in which the agreement was made. 14”
[37] The words contained in the first paragraph of clause 22 “where such policies relating
to production, program, organisation or technology may also affect the rights and interests of
its Employees, Company management is also obligated to consider the rights and interests of
its Employees in the implementation of such policies. Accordingly: ” qualify the balance of
the clause by explaining the purpose of the clause.
[38] There are a number of constraints then introduced. The first is a constraint that such
policies relate to production, program, organisation or technology. I regard the Policy as at
least relating to a company “program”. A “program” is defined in the Macquarie Dictionary9,
inter alia, as a plan or policy to be followed. The Policy clearly sets out a program as defined.
The second constraint is that the program must “affect the rights and interests of its
Employees’. There is no doubt in my mind that the Policy does so in that employees are
required to submit themselves for tests and there are serious consequences for refusal to do so
or failure to meet the standards set by the thresholds contained in the Policy. Plainly rights
and interests of employees are affected. The third constraint is introduced in clause 22.2
which sets out the employer’s duty to notify. Clause 22.2.1 provides that the change be a
[2013] FWC 2394
14
change that is “likely to have significant effects on Employees’ and “significant effects” is
defined in clause 22.2.2 as including termination. This is one of the potential consequences of
the implementation of the policy. Furthermore clause 22.2.2 specifies that the significant
effects listed are not limited, making it clear that there could be other effects that are
significant. There is no doubt in my mind that there are a range of effects upon employees of
the implementation of the Policy that could be significant depending upon the circumstances
of the employee and the nature of the consequence. Therefore I am satisfied that this
constraint and the other two constraints outlined above do not remove the Policy from the
purview of this clause.
[39] Clause 22.4 applies to the implementation of change and provides that change may be
introduced by the employer with 30 days notice notwithstanding that it is not agreed with
employees subject to the right of the Union (defined in the Agreements as the MUA) to refer
the matter to the Commission. In this circumstance I understand that the changes to the Policy
that are the subject of the dispute have not yet been implemented so this provision would not
apply.
[40] Having considered the wording of clause 22 of the Agreements in the context of the
Agreements I find that it does apply to the Policy. Accordingly I find that the Commission has
the power to arbitrate to resolve a dispute in relation to the alleged failure to properly consult
in relation to the Policy. I make no finding as to whether there has been a failure to consult in
accordance with clause 22 of the Agreements as that matter remains the subject of argument
on the merits.
Conclusion
[41] Clause 24 of the Agreements clearly provides the Commission with the power to
arbitrate to resolve a dispute, subject to the dispute as properly characterised being in regard
to the application of the Agreements. This dispute is about the content and implementation of
the Policy and an alleged failure to properly consult in relation to the Policy in the manner
required by clause 22 of the Agreements. The content of policy is contemplated as being a
matter for communication, consultation and dispute resolution between the parties in clause
8.10 of the Agreements. The Policy is a matter that is the subject of the Agreements in clause
17.8 of the Agreements. The Policy is covered by the provision of clause 22 of the
Agreements.
[42] Therefore I conclude that the dispute about the content and implementation of the
Policy and the process of consultation about the content and implementation of the policy is
in regard to the application of the Agreements. As such I find that the Commission has the
power to arbitrate to resolve the dispute.
[2013] FWC 2394
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[43] The matter will be listed for programming for arbitration.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR535827
1 [2010] FWAFB 1464
2 [PR916526]
3 [2011] FCA 1020
4 At para 14
5 [2011] FCA 1020
6 [2009] HCA 41
7 (1982) 149 CLR 337
8 [2012] FWAFB 8951
9 1981, Macquarie University, Sydney, NSW
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