1
Fair Work Act 2009
s 739 - Application to deal with a dispute
Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Limited
(C2012/5578)
DEPUTY PRESIDENT SAMS SYDNEY, 6 SEPTEMBER 2013
Dispute concerning the recruitment and selection for new positions - significant job losses -
whether recruitment should be restricted to existing workforce - coverage of the Agreement -
principles of interpretation - management roles - existing employees may apply - Company
not obligated to consult or apply terms of the Agreement.
[1] Since October 2012, the Fair Work Commission (the ‘Commission’) has been chairing
private conferences between Patrick Stevedores Holdings Pty Limited (‘Patrick’ or the
‘Company’) and the Maritime Union of Australia (the ‘Union’) arising from the decision by
Asciano (Patrick’s parent company) on 18 July 2012 to invest $348 million in the expansion,
redevelopment and automation of its operations at Port Botany. As part of the redevelopment
project, a contract was entered into with Cargotec Corporation for the purchase of 44
autostrads (Automated Straddle Machines) between the end of 2013 and early 2014.
[2] The parties have accepted that the basis for these discussions is the above dispute
notification filed on 9 October 2012. There have been numerous private conferences with the
parties, both jointly and separately. The conferences have been free flowing, informal and, at
times, by general agreement, have strayed from the main topics of discussion concerning the
Port Botany development. In addition, there have been exchanges of documents and proposals
reflective of how each party views the final labour model for Port Botany when its existing
straddle operations are replaced by the fully automated autostrads in 2014.
[3] There is no disputing that this change and other associated changes will result in
significant job losses at Port Botany, although it is difficult to quantify at this point. I would
wish to emphasise that, at this stage, there is no agreement between the parties as to the future
[2013] FWC 6709
DECISION
E AUSTRALIA FairWork Commission
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labour model, or the selection of, and retraining processes for employees. Indeed, the Union
maintains its fundamental objection to the automation of Port Botany per se.
[4] However, a discrete dispute has arisen concerning Patrick’s decision to advertise
internally and externally for five new positions relevant to the operation of the autostrads, to
be known as Production Managers. The Union has invoked the disputes procedure under the
Patrick Terminals Enterprise Agreement 2012 [AE894673] (the ‘Agreement’), which, as will
be seen below, permits the arbitration of disputes by the Commission:
‘(e) Where the dispute has not been resolved within 7 days of the issue giving
rise to the dispute being raised despite the foregoing procedures being
followed and subject to there being no industrial action occurring or having
occurred in relation to the issue at hand, then subject to Clause 1.3 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.’
[5] The Union asks the Commission to determine the following question: Should the
Company apply cl 9 of the Agreement to the recruitment of Production Managers? Cl 9 of the
Agreement is set out as follows:
‘9. ENTERPRISE EMPLOYMENT
9.1 Sufficient full-time and PGE employees as determined by the Company will be
employed and deployed to meet the majority of skill and operational requirements,
providing they can be reasonably able to be gainfully and viably employed at all times
without the incurrence by the Company of the cost of unrecovered idle time.
9.2 It is the intent to minimise or eliminate use of supplementary employees in all
areas covered by this Agreement.
9.3 It is not the intent to employ supplementary employees in the terminals.
9.4 Subject to the Schedule 3 of this Agreement, and any other relevant provision of
this Agreement, the Company may select and recruit, at its discretion, in accordance
with Company Policies and Procedures, any person from within or outside the existing
workforce/s to fill a vacancy. The Company shall advise and consult with the Union of
any intended change to the size and composition of the workforce without altering its
absolute discretion to make such changes following consultation.
9.5 Where an existing full time position becomes vacant, the Company shall, in
normal circumstances, fill such vacancy within one month in accordance with sub-
clauses 9.4 and 9.6 unless it deems such replacement unnecessary. In those latter
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circumstances, the Company shall provide employees and the Union with full
disclosure of the reasons for non-replacement of existing positions.
9.6 The Company will apply demonstrably objective, competency based recruitment,
promotion and agreed selection criteria (which may be varied at Port level by
agreement) in recruitment and selection processes and procedures, and, where
appropriate, in selection for training. Any vacant position shall firstly be advertised
internally. Appointments shall be based upon skills, competencies, performance,
experience and any other relevant criteria. Where appropriate, the Company may
consult with appropriate senior operational staff in the selection process for internal
vacancies.
9.7 The selection criteria for internal selection processes shall be as follows:
1. All vacancies (in all categories) will be advertised internally within each
Terminal in the first instance.
2. Any unsuccessful candidate will have the ability to speak to his/her direct
supervisor about any reasons for being unsuccessful.
9.7.1. PGE TO PERMANENT
Months of service - 1 pt per month capped at 120
Fit for inherent requirements of job - yes continue - no out
If Pre Injury Duties (PID) expected within 4 - 6 months hold vacancy
pending PID
Must have required skills
Availability score 181 days
Plus 10 points
Discipline
Counselling lose 5 points (This deduction will be for a formal
counselling notice only)
Lose 1 0 points written warning level
Final warning within the last 12 months - no selection
Shift Manager score
Plus 20 points
All things being equal, where two employees have the same score the
employee with the longest length of service will be appointed to the job.
9.7.2. PROMOTION IN GRADES
Fit for inherent requirements of job - yes continue - no out
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If Pre Injury Duties(PID) expected within 4 - 6 months hold vacancy
pending PID
Must have required skills
Discipline
Counselling lose 5 points (This deduction will be for a formal
counselling notice only)
Lose 1 0 points written warning level
Final warning within the last 12 months - no selection
Number of months actively allocated to the position available for upgrade to:
Weighting score
1. Actively allocated one point per month to a maximum of 25;
2. Shift Manager score 12
All things being equal, where two employees have the same score the
employee with the longest length of service will be appointed to the job.’
[6] Also relevant to this dispute, as far as the Union is concerned, is cl 14 of the
Agreement dealing with the obligations on the parties in respect to consultation and change.
Cl 14 is as follows:
‘14. CONSULTATION AND CHANGE
14.1 The parties are committed to pursue all opportunities to adopt the world's best
practices through modern technology and continuous improvement to all aspects of
Company operations.
14.2 The Company having made a decision that it intends to proceed with any
significant change shall advise the employees in the first instance and the Union of the
nature of the change, the reason for it, the timing of it, and any other relevant information.
The Company shall consider any views or advice from the Union or employees in relation
to the proposed change. However, this consultation shall not give cause for any delay to
the implementation of the change nor shall there be any obligation on the Company to
obtain the Agreement of the Union or employees to change. It is agreed between the
Parties that after the above notification and discussion has taken place that the Company,
after careful consideration of the views of employees, may implement change with twenty
one days notice.
14.3 Without limiting the generality thereof, significant change includes redundancy,
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.
14.4 Where, subject to the provisions of this clause, the Company exercises its rights to
implement significant change in the workplace and employees disagree with that decision
and implementation of the change, subject to there being no stoppage of work or rejection
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of implementation of the change, the employees or the Union, where requested by the
employees, may refer the matter in dispute to the FWA in accordance with the Dispute
Resolution Procedure set out in Schedule 1 of this Agreement.’
[7] Cl 2.1 is also relevant and is expressed as follows:
‘2. PARTIES BOUND
2.1 This Agreement shall bind Patrick Stevedores Holdings Pty Ltd ("Patrick" or "the
Company") and its relevant employees engaged in stevedoring operations as
stevedoring employees in an Award classification (Grade 1 to Grade 6) and cover the
Maritime Union of Australia ("the MUA" or "the Union").’
[8] Patrick’s position is that it had advised the Union of its decision to advertise for the
Production Manager positions as a matter of courtesy only. As the new positions are
considered management positions, they are not covered by the terms of the Agreement. There
was no obligation to consult with the Union as to the application of cl 14 of the Agreement,
let alone comply with the selection procedures outlined in cl 9 of the Agreement. It was said
that as a matter of both jurisdiction and merit, there can be no dispute for the Commission to
resolve by way of arbitration. Simply, Patrick contends the Agreement does not and cannot
have any application to the recruitment of Production Managers at Port Botany.
[9] The dispute proceeded by way of urgent hearing on 30 August 2013. The parties only
had one week to prepare and file their evidence and an outline of submissions. Mr A Slevin of
Counsel appeared for the Union with Mr A Jacka and Mr Y Shariff with Mr D Perry,
Solicitor and Mr A Lambert, Solcitor, appeared for Patrick. Both Counsel were granted
permission to appear pursuant to s 596 of the Act, the Commission accepting the submission
that the dispute raised issues going to the jurisdiction of the Commission and the correct
interpretation of the Agreement.
Positions of the parties
For the Union
[10] Mr Slevin relied on the filed evidence of:
Mr Matthew Freestone (Team Leader, Chairman of the Site Work Committee);
Mr Simon Euers (former employee of Patrick, now employed by Hutchison Ports);
and
Mr Mick Doleman (Deputy National Secretary of the Union).
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[11] It was Mr Freestone’s evidence that, to the best of his knowledge, the recruitment of
Production Managers to operate the autostrads had never been discussed with the Site
Committee. Mr Freestone said the usual recruitment process at the Port is set out in cl 9 of the
Agreement. It involves the following steps:
a. Vacancies are advertised internally;
b. Employees submit expressions of interest;
c. Selection criteria is applied utilising the scoring process as per clause 9 of the
Agreement;
d. The appointment of the employees is notified through a list placed on
noticeboards in the workplace;
e. The grievance procedure is applied if any employees wish to contest the
appointments;
f. The grievance process followed is as per Schedule 3 of the Agreement;
g. Once the grievance is resolved the position is announced.
[12] Mr Freestone claimed that the above process had not been confined to positions
covered by the Agreement. These positions have included:
Shift Manager;
Yard Manager;
Rail Co-ordinator; and
Rail Mounted Gantry (RMG) Teleoperator.
[13] In cross examination, Mr Freestone conceded that cl 9 had only applied for vacancies
in respect of existing positions. Mr Freestone was unaware of the Production Manager’s role
at the Brisbane port (Fisherman Islands) or how the position was recruited. Mr Freestone
agreed that a meeting of the ERC on 21 August 2013 had discussed the Production Manager
role.
[14] Mr Euers described the process associated with the introduction of Rail Mounted
Gantries (RMGs) at Port Botany in 2007. He described the RMGs as:
‘automated cranes designed to perform the exchange of containers in and out of the
Patricks Port Botany terminal via rail and road (trucks). The cranes were completely
unmanned and were operated by RCOS (a Remote Controlled Operating Station)
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where operators, inside an office, performed the final landing of the containers via
cameras and joysticks. 90% of the operations of the cranes were completely automated
and controlled by computer real time operating systems.’
[15] Mr Euers said that after discussions with the RMG implementation team, it was agreed
that the Rail Coordinator would be responsible for the operation of RMGs and an agreed
training procedure was developed.
[16] Mr Euers described the visit by the Commission, the Company and the Union to
Brisbane terminal late last year. Brisbane is a fully automated straddle operation. After
viewing the duties of the Production Manager and the Tower Clerk, Mr Euers believed that
the systems were the same as for the RMGs at Port Botany. He also believed the Production
Manager position description was very similar to the role of the Rail Co-ordinator overseeing
the RMGs at Port Botany. He considered that employees at Port Botany could perform the
duties of Production Manager and that their operational knowledge of Port Botany would be
an advantage in performing the Production Manager’s role.
[17] In cross examination, Mr Euers said he had only observed the automated Brisbane
operation for around half an hour and he could not say what the Port Botany operations might
look like, as they are obviously not yet in place. Mr Euers was not aware if the Union had
sought coverage for the Production Manager at Brisbane and was unaware that the positions
in Brisbane had not been advertised internally.
[18] The bulk of Mr Doleman’s statement dealt with a chronology of events involving the
negotiation for the Agreement, the communications between Patrick and the Union about the
Port Botany redevelopment, associated Court proceedings and the Commission’s conciliation
process. Much of his statement was ruled irrelevant to the issue before the Commission.
[19] Mr Doleman referred to the ongoing discussions between the Union and Patrick over
the job losses at Port Botany. He and his members believed that the Production Manager
positions should be recruited internally through cl 9 of the Agreement to mitigate the job
losses flowing from the automation process. Cl 9 has been a feature of the Agreement since
2004.
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[20] Mr Slevin tendered a letter from Ms Elizabeth Ferrier, Change Manager to the Union
dated 9 August 2013 outlining Patrick’s position. It is annexed to this decision as Annexure 1.
[21] In oral submissions, Mr Slevin recalibrated the nature of the dispute by reference to cl
14 of the Agreement concerning Consultation and Change and, in particular, the identification
of the words ‘changes in the composition, operation or size of the workforce’ and ‘promotion
opportunities’ (cl 14.3). This was what the dispute was about and what followed was the
Commission’s power to arbitrate disputes about such matters. Cl 9 is simply the remedy
proposed by the Union in resolution of the dispute. It was not suggested that in a regulatory
sense, the Commission should broaden the application of cl 9. It was a convenient way of
applying an agreed and readymade recruitment process to the recruitment and selection of
Production Managers.
[22] Mr Slevin argued that the Union did not accept that cl 9 applied only to supplementary
employees. Mr Freestone’s evidence was that it had applied to other management positions.
Mr Slevin also relied on the definition of ‘stevedoring operations’ in the Stevedoring Industry
Award 1999. It was a broad definition as follows:
‘Stevedoring operations means:
(a) the loading or unloading of all types of cargo including containers, motor
vehicles and bulk liquid or non-liquid cargoes into or from ships;
(b) the loading or unloading, into or from ships, of ships stores, coal or fuel oil
(whether bunkers or not), passengers’ luggage or mail;
(c) the receival, delivery, storage, handling or preparation of all types of cargo
including containers, motor vehicles and cargo in unit forms or other goods, for
the purpose of loading or unloading such cargoes into or from ships, and
including the monitoring, maintenance and repair of refrigerated containers and
other equipment;
(d) the driving or operation of all mechanical appliances or equipment used in
relation to the receival, delivery, storage or handling of all types of cargo
(including the moving of rail trucks) or used in relation to the unloading or
loading of all types of cargo from and onto ships including the operation of
ships gear and all equipment on board a ship used in relation to loading and
unloading;
(e) the haulage or trucking of all types of cargo or other goods from wharf
sheds, wharf storage or stacking areas to the ship or from the ship to the wharf
shed, storage or stacking area;
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(f) clerical functions involved in the tallying, receival, delivery, sorting and
stacking, storage, or other work connected with the loading or unloading of
cargo into or from ships (whether in containers or not) or involved in the
receival, delivery, packing, unpacking, loading, unloading or storage of
containers in preparation for loading into ships or after their discharge from
ships. In connection with the foregoing work it may include those engaged in
manifesting, freighting, preparation of ship’s cargo disposition, timekeeping,
labour allocation, roster preparation, preparation and distribution of payrolls,
maintenance stores functions, computer operation, operation of other
equipment used in connection with electronic data processing, or any other
clerical work in or in connection with stevedoring operations or a wharf office
on a wharf or on a ship;
(g) maintenance, construction and repair work where such work is performed
in relation to stevedoring operations by maintenance tradespersons and
maintenance tradespersons special class in relation to any vehicles, mechanical
and/or electrical equipment, buildings, materials or facilities;
(h) watching, guarding and protection duties in relation to the operational
activities and functions specified in this definition;
(i) the supervision, direction, checking and instruction of stevedoring
employees;
(j) general functions and duties such as the lashing and unlashing of containers,
working in a ships hold, driving of motor vehicles including buses,
marshalling, general cleaning, cleaning and attendance to amenities areas and
offices, mooring and unmooring of ships, cleaning and maintenance of
containers, preparation and maintenance and repair of gear and equipment used
in loading and unloading, packing and unpacking of containers, pallets or flats
and the sorting, stacking, preparing, or otherwise handling of loose goods and
cargo, preparation and cleaning of ships’ holds, removal or replacement of
beams or hatches, plugging and unplugging of refrigerated containers,
preparatory or closing work in relation to the loading or unloading of ships, the
handling of dunnage or ballast, general inspection of vehicles and buildings,
general duties in connection with the loading and unloading of ships and the
provision of first aid.
(k) work of an employee required to plan, control, co-ordinate and integrate
stevedoring operations in connection with vessels, and/or cargoes allocated to
the employee by the employer, from time to time, and the work of other
stevedoring employees in relation thereto, and to compile records, reports and
information in connection therewith, but excluding the work of persons
employed as wharf managers, assistant managers, and outside managers;
NOTE: The inclusion of the words “but excluding the work of persons employed as
wharf managers, assistant managers and outside managers” is subject to the outcome
of Commission proceedings in respect to stevedoring employee grade 8 in clause 10 of
this award;
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where any of the foregoing operations, functions or activities are carried out or
performed by a stevedoring employee(s) as defined.’
He compared this definition to the Production Manager’s job description and submitted that it
was clear the role was associated with ‘stevedoring operations’.
[23] Mr Slevin also relied on Mr Euers’ evidence that the recruitment and selection of
persons related to the RMG automation had been through an internal promotion process. Past
practice demonstrated that cl 9 had been used for promotional opportunities to management
roles.
[24] Mr Slevin disagreed that the new roles were not covered by the Agreement because
they were promotional opportunities comprehended by the significant change clause (cl 14.3).
He said that any vacant position should be first advertised internally, rather than opening it up
to both internal and external applicants. Such an approach was envisaged by the history of the
TCR provisions where there is a requirement to consult in order to minimise job losses. The
Union had always contemplated agreed recruitment and selection procedures for new
employees arising from the automation of the Port and had, from the outset of this dispute (12
August 2012), put Patrick on notice that that was what it intended.
[25] Mr Slevin added that the terms of the Agreement contemplated obligations in relation
to work outside Grades 1-6 in the Award (clauses 14 and 15).
For Patrick
[26] Mr Shariff called Ms Ferrier to give evidence. He tendered the job description for the
Production Managers through her testimony. Ms Ferrier agreed that the positions have been
advertised internally and externally. She described the position as a management role, similar
to a Terminal Manager, Shift Manager, Operational Manager and other functional
management roles (HR, safety, finance). The persons will not be employed or paid under the
Agreement.
[27] Ms Ferrier believed that the Union had never complained about the recruitment of
other management positions. Cl 9 had never applied to such positions and the Union had
never sought to have it apply. Ms Ferrier deposed that the Brisbane Production Managers are
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not covered by the Agreement and there was no complaint to her knowledge, about the
recruitment, the non-application of cl 9, the mode of payment or coverage for those positions,
which have existed since 2007. The Production Managers are employed under a specific
contract of employment. This applies to all management positions. Ms Ferrier accepted that
when automation was introduced at Fisherman Islands, there were no simultaneous
retrenchments.
[28] Mr Shariff welcomed Mr Slevin having finally articulated what the dispute was about.
However, his client had prepared its case on the question of whether cl 9 shold be applied to
the recruitment of Production Managers. Now the Union’s position had shifted, it placed
Patrick in a difficult position as to what different evidence it might have adduced had it
known it was responding to a different case.
[29] Mr Shariff submitted that Patrick had agreed to do exactly what the Union sought - to
provide the existing workforce with promotional opportunities. Ms Ferrier’s letter was very
clear that existing employees were encouraged to apply and would have an advantage over
external applicants. He asked how, on any view, could this be a denial of promotional
opportunity? Mr Shariff said that what the Union really seeks is to foist on the Company a
very particular selection procedure, negotiated for specific circumstances, to apply to a
specific scenario - a PGE employee moving to a permanent position.
[30] Mr Shariff emphasised that Ms Ferrier, in her letter of 9 August 2013, had squarely
raised Patrick’s view that the Production Manager’s role was not covered by the Agreement.
Mr Slevin had not said anything about the role being covered by the Agreement. Mr Shariff
referred to cl 2.1 of the Agreement to demonstrate it applied only to Grades 1-6. Cl 15.2 is a
higher duties provision. It is not a clause applying in respect to permanent appointment to a
higher grade.
[31] In any event, Mr Shariff referred to the words of cl 9.4, which gave Patrick an absolute
discretion to fill any vacancy from within or outside the existing workforce. This was the
agreed position of the parties. Mr Shariff stressed that these were not vacancies, but new
positions.
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[32] Mr Shariff reiterated his concerns as to the jurisdiction of the Commission to
determine this dispute. He drew attention to the fact that the Union’s case has changed to
reliance on cl 14 of the Agreement. Yet, nowhere in the Union’s letter to the Commission
seeking to have this matter arbitrated is there any reference to cl 14. The situation remained
unsatisfactory to the extent that Patrick has been deprived of an opportunity to address the cl
14 issue through its own evidence.
[33] However, Mr Shariff said that Patrick did not want to stand in the way of the dispute
being determined. He reaffirmed that there had been no denial of promotion opportunities.
There are five jobs which have been advertised and internal applicants are encouraged to
apply. They would be given due consideration and experience at Port Botany would be an
advantage. What the Union wanted was to have ‘first dibs’ over the vacancies. This raised the
question of managerial prerogative. Patrick was entitled, where a new position was created,
that was not covered by the Agreement, to exercise its discretion to implement the appropriate
selection criteria.
CONSIDERATION
[34] Despite Mr Slevin’s submission on permission to appear, this dispute is not complex,
difficult or ambiguous. It is not ‘rocket science’ and does not involve difficult or complicated
principles of agreement interpretation. In short, it is straightforward and the result, I think,
will hardly be surprising.
[35] Firstly, I deal with the jurisdictional concerns raised by Mr Shariff. I appreciate that
the Union’s position shifted during the course of the proceedings. Mr Shariff complained that
this shift had prejudiced Patrick’s capacity to properly address the case it had to meet. He has
a point. However, I think Mr Shariff’s problems with the jurisdictional foundation of this
dispute are more illusory, than real.
[36] In my view, there can be no doubt what this dispute is about. Patrick has not
contended otherwise. It seems to me that while the initial question posed by the Union might
have been neater or more sharply focused, the question to be determined could have been
framed in a myriad of ways. A few examples serve to demonstrate the point:
Does the Company have the right to determine the process for the selection and
recruitment of Production Managers?;
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Is Ms Ferrier’s letter to the Union, dated 9 August 2013 consistent with the
Company’s obligations under the Consultation and Change clause in the
Agreement?;
Should resort be had to clause 9 for the purpose of recruiting and selecting the new
Production Managers?; or
Should the recruitment for the positions of Production Manager be limited to
internal candidates only?
[37] That said, the original dispute notification, filed on 9 October 2012, under the heading
‘What is the dispute about?’ identified that one of the issues was:
‘4.8 On 3 September 2012, Asciano announced that 44 automated straddle
carriers had been ordered as part of the redevelopment of the Terminal.
4.9 In correspondence dated 4 September 2012, the director of the respondent
confirmed that the company had agreed to purchase 44 automated straddles
for the Terminal.
4.10 The applicant contends that the respondent has not correctly applied clause
14.2 of the agreement because by agreeing to purchase 44 automated
straddles it has implemented significant change:
a. Without providing all relevant information about the introduction of
automation; and/or
b. Without considering all of the views and advice of the applicant and
the stevedoring employees; and/or
c. Without giving 21 days notice to the applicant or the stevedoring
employees of the implementation of the change.’
[38] In my opinion, the reference in the original notification above is entirely consistent
with both parties’ understanding of what this dispute is about. It seems an unassailable
proposition that the determination of this dispute is encompassed within the framework of the
original dispute notification. Accordingly, no jurisdictional grounds exist which would bar the
Commission from determining the matter, pursuant to the dispute settlement procedure under
the Agreement. I note that Mr Shariff criticised the Union’s letter to the Commission initiating
these proceedings, in that it made no reference to cl 14 at all. As will be self-evident, the
original dispute notification at para 4.10 (above) expressly makes reference to the Union’s
allegation that cl 14 had not been complied with.
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[39] As I apprehend the evidence, the only difference the Union could point to between the
Production Managers at Fisherman Islands and Port Botany is that the introduction of the
autostrads at Fisherman Islands was not in an environment of the redundancy of a significant
number of employees. In one sense, such a distinction is irrelevant to the determination of this
dispute. This is so because the Union’s case hinged primarily on its view that the recruitment
of Production Managers should be restricted to internal applicants only and by means of an
established selection process in the Agreement (cl 9). It was said that this would ameliorate
the impact of the redundancies proposed at Port Botany.
[40] On its face, the Union’s case does not appear to be unreasonable or devoid of merit.
However, it must be seen in the context of a number of countervailing factors; including, not
least of all, the experience of the introduction of the role at Fisherman Islands. Coincidently, I
had the benefit of visiting Fisherman Islands and observing the work of the Production
Managers for the same amount of time as Mr Euers. I shall come back to this shortly. I
address the Union’s contentions as follows.
[41] Firstly, it is highly likely that there are existing employees at Port Botany with the
necessary skills, experience, expertise and interest to undertake the role of a Project Manager
or are capable of being trained up to the position. Indeed, unlike Brisbane, Patrick has
positively encouraged internal applications and have recognised that experience with Port
Botany’s processes and procedures will be a distinct advantage over external candidates. I
agree with this observation.
[42] In my view, what Patrick has done in encouraging internal applications, is to recognise
and agree with the Union’s view that the redundancies should be ameliorated by whatever
options are available. It seems to me that this is precisely what Patrick is doing. It is
consistent with its obligations under general industrial principles dealing with significant
workplace change. Of course, that does not mean there might be arguments about an
individual’s capacity or skills necessary for the position. There are existing means of
addressing such arguments, if the occasion arises.
[43] Secondly, it seems to me that the recruitment for five new positions is not going to
dramatically impact on the large number of job losses which seem inevitable at this point -
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even on the Union’s proposed labour model. The Union estimates that Patrick’s model will
result in job losses of over 200.
[44] Thirdly and most importantly, the Port Botany Production Manager’s role is, in my
opinion, directly analogous to the same role at Fisherman Islands, where the following
evidence disclosed:
(a) the role was first introduced in 2007;
(b) there was no suggestion at the time, or subsequently, that the position was not a
management role;
(c) the Union has not sought to agitate a claim for either coverage of the role or its
inclusion under the enterprise agreement;
(d) there has been no position put that the persons engaged as Production Managers
should not be covered by individual contracts of employment;
(e) there was no evidence to suggest that the role was covered by an existing
classification under the Agreement. I note the salary applicable to the role is
above the highest Level 6 rate under the Agreement; and
(f) there was no dispute as to the recruitment process of Production Managers at the
time, or subsequently, and unlike here, the advertising for the positions excluded
internal applicants, seemingly without demur from the Union.
[45] In my assessment, the resemblance of the role to the Production Managers at
Fisherman Islands is persuasive evidence telling against the Union’s arguments. However,
even putting the Fisherman Islands experience to one side, I have no doubt that the Production
Manager’s role at Port Botany is a management position, not contemplated by coverage under
the Agreement. Once that finding is made, it seems to me that the Union’s case is doomed. It
follows that:
(a) the consultation clause (cl 14) on significant change is not applicable; and
(b) Cl 9 is similarly is not applicable.
[46] Nevertheless, even if the terms of the Agreement were applicable to Production
Managers, I do not understand how cl 9 can be relevant to these new positions. It will be
readily apparent that cl 9 is directed towards a particular group of employees (supplementary)
and a specific set of circumstances. It is not permissible, as a matter of agreement
interpretation, to isolate or ‘cherry pick’ particular words, phrases or subclauses and give
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them a meaning inconsistent with the overall intention and context of the clause; See: Amcor
Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 (‘Amcor’) and
Kucks v CSR Ltd (1996) 66 IR 182 (‘Kucks v CSR’).
[47] The fact that the processes under the clause may have been conveniently used to
recruit and select other Management positions at Port Botany is not the point. It certainly is
not determinative. The Union’s argument cannot derogate from the principles of agreement
interpretation when the words are in contest. In addition, as I understand it, cl 9 has only been
used for existing vacancies and not where new positions are being created. This seems to be
perfectly consistent with the reference to filling ‘existing full time positions’ which become
vacant as set out in cl 9.5.
[48] In any event, cl 9.4 can only be read as giving Patrick an absolute and unfettered
discretion to select and recruit ‘any person from within or outside the existing workforce/s to
fill a vacancy.’ Had cl 9 been relevant, this provision would be an almost insurmountable
hurdle for the Union to overcome when viewed from the prism of management prerogative.
Moreover, the clause constitutes an agreement between the parties.
[49] Finally, it is also of some significance to note the wording of cl 2.1 of the Agreement,
setting out the parties bound. There can be little doubt that the express coverage of the
Agreement is only to those stevedoring employees in Award classifications from Grades 1-6.
The classification of Production Manager falls well outside this express coverage. I agree with
Mr Shariff that cl 15 of the Agreement has nothing to do with extending coverage of the
Agreement to managers. It is an unremarkable and conventional higher duties provision.
[2013] FWC 6709
17
[50] For the aforementioned reasons, I find that Patrick is entitled to recruit and select
persons for the positions of Production Managers at Port Botany by the process outlined in
Ms Ferrier’s letter to the Union, dated 9 August 2013, Annexure A.
DEPUTY PRESIDENT
Appearances:
Mr A Slevin, Counsel with Mr A Jacka for the applicant
Mr Y Shariff, Counsel with Mr D Perry, Solicitor and Mr A Lambert, Solicitor for the
respondent
Hearing details:
2013
Sydney:
30 August
Printed by authority of the Commonwealth Government Printer
Price code C, PR541460
COMMISSION FAIR WORK COMM AUSTRALIA THE SEAL OF
[2013] FWC 6709
18
[51]
Annexure A DOTDICU Patrick Patrick Stevedores Holdings Ply Limited
ACN 060 462 919 Safety. Customer. One Team. Level 6, 15 Blue Street North Sydney NSW 2060 Telephone: 61 2 8484 8000 Facsimile: 61 2 9247 9259 Mr Mick Doleman / Mr Adam Jacka www.patrick.com.au Deputy National Secretary, Maritime Union of Australia
Level 2, 365 Sussex Street Sydney NSW 2000 9 August 2013 Dear Mick and Adam Patrick Port Botany Terminal Redevelopment Project - Recruitment of Production Manager roles rding the Port Rotany Redevelonment Project
As you know, the operation of an automated terminal requires the position of Production Manager. You both observed the Production Manager at work when you attended the Brisbane AutoStrad Terminal in December 2012. The purpose of this letter is to notify you, as a matter of courtesy, that PSL Services Pty Limited intends to commence recruiting for the roles of Production Manager to operate in the Sydney AutoStrad™ Terminal. This activity will commence within the next seven days.
As this role (as outlined below) is not covered by the Patrick Terminals Enterprise Agreement 2012 (the Agreement) , the recruitment of it does not fall within the consultation processes outlined in clause 14 of the Agreement. It is necessary to commence recruitment activities now to ensure that we have adequate Production Manager resources who are fully trained for the commencement of the AutoStrad™ Terminal, as well as to be involved in commissioning and testing activities that will be required in the lead up to commencement.
We have previously provided the Position Description (PD) for this role. As that PD outlines, Production Managers will be responsible for the operational management of the AutoStrad™ system with relevant team members. Production Managers will not manage operations employees. We understand from our previous discussions with you that in your view the Production Manager role is covered by the Patrick Terminals Enterprise Agreement 2012 (the Agreement). However, given the nature of the role, this is not the case. nl be employed pursuant to a
common law contract of employment. I note that these arrangements have been in place at the Brisbane AutoStrad™ Terminal since the commencement of AutoStrad™ operations. The Production Manager role will be advertised internally and any employees employed at the Port Botany Terminal or within Asciano are encouraged to apply. Any employee who expresses an interest will be provided with full details of the recruitment process to be undertaken. All applicants will be assessed for their suitability having regard to the skills and capabilities the role
requires. where an employee at Port Botany meets the requirements of the role, their experience at the Port Botany Terminal will be considered an advantage. Please contact me should you wish to discuss. Yours sincerely Elizabeth Ferrier
Change Manager Patrick Terminals and Logistics
