1
Fair Work Act 2009
s.604—Appeal of decision
The Maritime Union of Australia
v
Patrick Container Port Pty Ltd T/A Patrick Port Logistics
(C2015/1598)
Industries not otherwise assigned
VICE PRESIDENT WATSON
DEPUTY PRESIDENT SAMS
COMMISSIONER ROBERTS
MELBOURNE, 17 APRIL 2015
Appeal against decision [2015] FWCA 248 of Commissioner Cargill at Sydney on 16 January
2015 in matter number AG2014/8934 - approval of enterprise agreement - whether
Stevedoring Industry Award 2010 or Road Transport and Distribution Award 2010 is the
relevant modern award for the purposes of applying the better off overall test - scope of
Stevedoring Industry Award 2010 - Road Transport and Distribution Award 2010 applies -
permission to appeal not granted.
Introduction
[1] This decision concerns an application for permission to appeal by The Maritime Union
of Australia (MUA) against the decision of Commissioner Cargill1 at Sydney on 16 January
2015 approving a single-enterprise agreement known as the Patrick Port Logistics
(Cargolink) Enterprise Agreement 2014 under s.185 of the Fair Work Act 2009 (the Act).
[2] The appeal relates to the part of the decision in which the Commissioner held that the
Agreement met the requirements of s.186(2)(d) of the Act by passing the better off overall test
(BOOT) and that the relevant modern award for the purposes of applying the BOOT was the
Road Transport and Distribution Award 2010 (the Transport Award). At the hearing of the
appeal Mr D Quinn of counsel and Mr A Neal appeared for the MUA. Mr S Jauncey and
Mr N Hill of counsel appeared for Patrick Container Port Pty Ltd T/A Patrick Port Logistics
(PPL).
The Decision under Appeal
[3] In the approval proceedings before the Commissioner the MUA opposed the approval
of the agreement. The basis for the MUA’s objection concerned whether the agreement
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DECISION
E AUSTRALIA FairWork Commission
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passed the BOOT in relation to employees engaged to perform work at the Cargolink facility
at Curlew Street, Fisherman’s Island in the Port of Brisbane.
[4] PPL contended that the Transport Award was the relevant modern award for applying
the BOOT. The MUA said that the Stevedoring Industry Award 2010 (the Stevedoring
Award) applied. On this basis, the MUA asserted that the agreement did not pass the BOOT
in relation to some or all of the Brisbane Cargolink employees. There was no dispute that for
the other employees who would be covered by the agreement and who are engaged at the four
PPL sites in West Melbourne, the relevant award is the Transport Award.
[5] The Stevedoring Award is an industry award. Its coverage clause provides that it
covers employers throughout Australia engaged in the stevedoring industry and their
employees in the classifications listed in the classifications clause of the award. In
determining the relevant award to be applied, the Commissioner had regard to this clause and
the definition of “stevedoring industry” set out in clause 3 of the Stevedoring Award as
follows:
“stevedoring industry means the loading and unloading of cargo into or from a ship
including its transporting and storage at or adjacent to a wharf”.
[6] The Commissioner concluded that the definition of “stevedoring industry” did not
extend to employers not involved in the loading and unloading of cargo into or from a ship,
and that as PPL is not engaged in such an activity it cannot be in the stevedoring industry and
is therefore not covered by the Stevedoring Award. The relevant paragraphs of the decision
are as follows:
“[108] There is no suggestion that PPL is engaged in loading or unloading of cargo into
or from a ship. There is however a question about whether its activities are captured by
the second part of the industry definition. The Statement of the Full Bench [2009]
AIRC FB 450 dealing with the Stage 3 exposure drafts in the award modernisation
process indicates that the Stevedoring Award was proposed to cover the land based
operations of employers who are involved in loading and unloading vessels.
[109] The decision of the Full Bench which led to the making of the award [2009]
AIRCFB 826 notes that parties had not raised any significant concerns with the
exposure draft. The bench then states "(s)ome minor changes have been made to the
scope clause of the award such as inserting a definition of cargo and confining the list
of vessels to "ship" ...".
[110] There is no specific mention of the additional words which are relevant in this
matter, "including its transporting and storage at or adjacent to a wharf". However, in
the absence of any indication that the Bench had intended to do anything other than
make "minor" changes to the scope clause, it would appear that the final award covers
only employers who are engaged in the loading and unloading of cargo into or from a
ship. PPL is not one of those employers and consequently is not in the stevedoring
industry and not covered by the Stevedoring Award.”
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[7] The Commissioner then addressed whether PPL would be in the stevedoring industry
if her initial reasoning and conclusions were incorrect and the definition of “stevedoring
industry” is intended to have a wider application. The Commissioner found that the nature of
the relevant activities, considered in context, did not give PPL’s business a substantial
character in the stevedoring industry. The Commissioner relevantly stated:
“[112] It is true that the Federal Court in Coles Supermarkets has cast doubt on the
applicability of the "substantial character" test in matters concerning whether a
particular award applies. At paragraph 22 of its judgment the Full Court states:
"The test that should be applied is to discern the objective meaning of the words
used bearing in mind the context in which they appear and the purpose they
are intended to serve. Here, the definition in question expressly extended to
work ancillary to the principal business. That was the true question for
examining."
[113] It is important to note however that, unlike the terms of the award in question in
the matter before the Court, coincidently the Transport Award, the definition of
"stevedoring industry" does not contain any such express extension to work which is
ancillary to the employer's principal business. If it did then PPL may very well have
come within it. However the absence of such an extension means that, in order for the
Stevedoring Award to apply, PPL must be engaged in the industry.
[114] The evidence of the employees was very helpful however it necessarily reflected
only the small part of PPL's operations with which they are familiar. The evidence of
Mr Nash and Mr Arnold related to the overall business activities within their
respective states. That evidence establishes that, in Queensland and Victoria, the
company owns and operates a fleet of approximately 110 prime movers with around
460 specialised trailers. It also establishes that, of approximately 361 direct employees
in those two states, about 13 are employed at the Cargolink facility, including salaried
Supervisors.
[115] In my view, even if it was accepted that those 13 employees undertake work
which involves activities relating to the transporting and storage of cargo at or
adjacent to the wharf, this is not sufficient to bring PPL within the stevedoring
industry.
[116] Further, it is clear from the evidence that much of the work undertaken by the
employees at the facility related to items which have not been imported through and
are not intended to be exported through the MX zone to and from the PSHL Terminal.
This includes dealing with empty containers coming in and out by road, containers
both full and empty which are transported by road to and from the DP World and
Hutchinson Terminals and goods and machinery transported by road for quarantine
washing.
[117] It follows that PPL is not covered by the Stevedoring Award. The consequence
is that the relevant award for the purposes of the application of the BOOT is the
Transport Award.”
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[8] The Commissioner determined that the agreement passed the BOOT as assessed
against the Transport Award and approved the agreement.
Grounds of appeal
[9] The grounds of appeal advanced by the MUA are as follows:
“3. The Commission erred by applying the wrong principle or asking the wrong
question in failing to correctly apply the definition of the "stevedoring industry" by:
a. determining that the "stevedoring industry" is limited to the land based
operations of employers who are involved in the loading and unloading of
vessels;
b. determining if Patrick Container Ports Pty Ltd ("PPL") was in the
stevedoring industry by considering whether PPL was an employer engaged in
the loading and unloading of cargo into or from ships;
c. failing to consider whether PPL was in the stevedoring industry because it
was involved in the loading and unloading of cargo to or from a ship by its
activities in the transporting and storage of cargo at or adjacent to a wharf;
d. determining if PPL was engaged in the stevedoring industry by comparing
the number of employees at the Cargolink facility with the number of
employees involved in other activities or areas;
e. failing to determine whether PPL was in the stevedoring industry because
the business of PPL gave it a substantial character of being engaged in the
stevedoring industry.
4. In the premises above, the Commission erred by determining that the relevant
modern award for the purposes of s.193(1) was the Road Transport and Distribution
Award 2010 ("RTDA"), rather than the Stevedoring Industry Award 2010 ("SIA"), and
by determining that the Agreement met the requirements of s.186(2)(d) and approving
the Agreement under s.186.”
[10] The MUA submits that there is substantial public interest in the matter to justify the
granting of leave to appeal, because it involves:
a significant error of law in relation to the principles by which award coverage clauses
are to be interpreted
the proper determination of the coverage provisions of the Stevedoring Award, which
has important implications for employers and employees involved in the stevedoring
industry, and
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matters at issue which replicate disputes that have occurred and are continuing to
occur concerning the reach of the coverage provisions of the Stevedoring Award and
its overlap with the Transport Award, and continuing uncertainty of those issues.
The scope of the Stevedoring Industry
[11] The MUA asserts that the Commissioner erred by failing to assess the definition of
“stevedoring industry” as a complete and composite definition of the industry. It submits that
to address the notion of the stevedoring industry—“the loading and unloading of cargo into or
from a ship including its transporting and storage at or adjacent to a wharf”—without
including the movement and storage of the cargo is to impermissibly break up the definition
into two constituent parts, analyse them in isolation and ignore the role of “including” in the
definition as extending the definition to encompass those activities that are not strictly loading
and unloading.
[12] The MUA submits therefore that the phrase must be read so as to capture any
employer engaged in the transport or storage of cargo at or adjacent to a wharf, even if that
employer is not engaged in the loading or unloading of cargo into, or from, a ship.
[13] PPL submits that the MUA’s contention as to the meaning of the “stevedoring
industry” is erroneous. PPL submits that the MUA effectively seeks to modify the definition
contained in the Stevedoring Award to delete the word “including” and to substitute the words
“and also”. PPL submits that the use of the word “including” simply extends the scope of the
industry to cover landside operations in transporting and storing of cargo which are
undertaken at or adjacent to a wharf by an employer who is also engaged in the loading and
unloading of cargo into, or from, ships.
[14] Both the MUA and PPL submit that the history of the development of the Stevedoring
Award lends weight to their respective positions.
[15] In determining the matter the Commissioner had regard to the Statement of the Full
Bench of 22 May 20092 concerning the exposure draft of the award, in which the Full Bench
indicated that the Stevedoring Award was proposed to cover the land based operations of
employers who are involved in loading and unloading vessels. The MUA contends that the
statement is insubstantial and is nothing more than a device which repeats, not explicates, the
definition used in the exposure draft.
[16] The MUA further submits that the reference is inconsistent with the Full Bench’s
reference to the coverage of the Stevedoring Award in its later statement of 25 September
2009 which described the Stevedoring Award as “apply[ing] to port related activities
including ship loading.”3 The MUA submits that to reconcile these inconsistent references, it
is necessary to recognise they do not have an analytical function but are merely prefatory.
[17] PPL submit that in its statement of 22 May 2009 the Full Bench was clearly
enunciating its intention behind the draft decision and was not merely repeating the definition.
Further, in the Full Bench’s statement of 25 September 2009, the comment outlined by the
MUA was made in relation to the Grain Handling Award 2010 and was taken out of context.
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[18] The MUA contends that, despite the Full Bench in its decision of 4 September 2009
noting that there had only been “minor change” to the scope of the Award, those changes
included the re-insertion of the phrase “including its transporting and storage at or adjacent to
a wharf”. It submits that if that change was “minor” it was likely because it was reinserting
words to ensure the Award retained the scope of the stevedoring industry and its awards that
had existed previously, which it argues lends weight to a wider interpretation of “stevedoring
industry”, as discussed below. It submits that greater consideration should have been given to
the materials and transcript of the proceedings before the AIRC as part of developing the
Stevedoring Award and the pre-modern Stevedoring Industry Award.
[19] PPL submit that the MUA did not put the abovementioned material before the
Commissioner and in any event, extending the coverage of the Award beyond the landside
operations of employers engaged in the loading and unloading of ships would not have been a
“minor” change to the scope clause.
[20] The MUA contends that regard must also be had to the pre-modern award upon which
the Stevedoring Award was developed, namely, the Stevedoring Industry Award 1999 (the
1999 Award). The MUA notes that no definition of “stevedoring industry” was included in
the 1999 Award; instead, the reach of the industry and scope of the award is reliant upon the
definition of “stevedoring operations” in clause 7 of the 1999 Award, which it sets out in its
submissions.
[21] The MUA submits that the wide-reaching definition of “stevedoring operations” is
evidence that the stevedoring industry does, and has into the distant past, encompassed
employers involved in the loading and unloading of cargo into or from a ship and that process
of loading and unloading includes employers involved in the transporting and storage of cargo
at or adjacent to or in the vicinity of a wharf.
[22] PPL submit that the coverage of the Stevedoring Award is not defined in any way by
reference to the phrase “stevedoring operations”. Further, the term “stevedoring operations”
was used in the 1999 Award to simply describe the various occupational activities capable of
being performed by a “stevedoring employee”.
[23] Notably, the only employers bound by the award were those who were a respondent to
it. PPL argue that at no time did the award bind PPL, nor did it act as a common rule to bind
other employers simply because they may have been engaged in activities constituting
“stevedoring operations”. PPL submits that instead, it appears that every employer named as a
respondent to the 1999 Award was, in fact, involved in the loading or unloading of cargo into,
or from, ships. PPL submit that therefore, it is clear that the definition of “stevedoring
operations” was used in the 1999 Award to confine, by occupational activity, the range of
employees in respect of whom the respondent employers were bound. Accordingly, the use of
the term in the 1999 Award is irrelevant to determining the coverage of the Stevedoring
Award.
[24] The MUA submits that the Commissioner’s approach to the coverage of the
stevedoring industry was in error because it was inconsistent with the long established
meaning of “loading and unloading of cargo from a ship,” emphasised in a decision of a Full
Court of the Federal Court in ETU v WWF.4
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[25] PPL submit that the Federal Court in ETU v WWF considered the meaning of the term
“waterside worker” and in doing so, it referred to comments by Dethridge CJ in a previous
case as to the meaning capable of being ascribed to the terms “loading operations” and
“discharging operations”. PPL submit that the Stevedoring Award does not refer to either
“loading operations” or “discharging operations”. Instead, the definition of the “stevedoring
industry” simply refers to “the loading and unloading of cargo into or from a ship”, which
contains words which have a clear and ordinary meaning. PPL referred to the statement of
Mr Arnold, Queensland State Manager for PPL, in which he stated that PPL does not engage
in the loading or unloading of cargo to, or from, ships.
[26] The MUA contends that following the error in the Commissioner’s approach
concerning the meaning of “loading and unloading of cargo from a ship”, the Commissioner
gave no consideration to the issue of fact as to whether Cargolink was operating at or adjacent
to a wharf. The MUA submits that PPL’s Cargolink yard abuts the wharf area and has an MX
pad which provides the direct link for the robotic carriers to move containers from the wharf
stacking area to the PPL stacking area. The MX area therefore effectively becomes part of the
wharf when the fence opens.
[27] In response, PPL submits that the relevant place of loading and discharging operations
is the Fisherman Islands Terminal and that there is no evidence of any work being done inside
that Terminal by any of the Brisbane Cargolink employees.
[28] In our view the Commissioner was correct in concluding that the coverage of the
Stevedoring Award is confined to employers involved in the loading and unloading of cargo
from a ship. The dictionary definition of a stevedore is a firm or individual engaged in the
loading or unloading of a vessel. When making the modern award, the award modernisation
Full Bench used identical language in describing its intended coverage. The words that were
subsequently added to the definition of the industry were not added in order to expand the
scope to a different category of employers. It is clear from a consideration of the
circumstances that led to their insertion that the words were not sought to be added for that
purpose and were not regarded by the employers or the Commission as having any such
effect. Rather they were added to make clear that the coverage extended to other activities of
stevedoring employers—the transport and storage at or adjacent to a wharf.
[29] In our view the Commissioner was correct in discerning this intent and correct in
adopting an interpretation that limited the coverage of the Stevedoring Award to employers
who are engaged in stevedoring operations as such. To suggest that the Stevedoring Award
extends to employers who are merely involved in transportation and storage at or adjacent to a
wharf would be misapplying the language of the definition and circumventing the intention of
the Award Modernisation Full Bench.
[30] The Commissioner next considered, if her initial conclusion was incorrect and the
“stevedoring industry” might have wider application, whether PPL might nevertheless be in
that industry. In the light of the conclusion we have reached regarding the construction of the
coverage clause and the definition of the stevedoring industry it is unnecessary that we
consider the grounds of appeal regarding this aspect of the decision further.
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[31] As PPL is not engaged in the loading or unloading of cargo into or from a ship, the
Stevedoring Award does not apply to its operations. The Commissioner correctly applied the
better off overall test to the Agreement by considering its terms against the Road Transport
and Distribution Award 2010.
Conclusions
[32] We have concluded that the decision of the Commissioner to consider the PPL
agreement against the Road Transport and Distribution Award 2010 was correct. We do not
consider that a case has been made out to grant permission to appeal in the matter. The
application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr D Quinn of counsel and Mr A Neal for The Maritime Union of Australia.
Mr S Jauncey and Mr N Hill of counsel for Patrick Container Port Pty Ltd T/A Patrick Port
Logistics.
Hearing details:
2015.
Sydney.
19 March.
Final written submissions:
The Maritime Union of Australia on 26 February 2015.
Patrick Container Port Pty Ltd T/A Patrick Port Logistics on 13 March 2015.
Printed by authority of the Commonwealth Government Printer
Price code C, AE412171, PR562947
1 [2015] FWCA 248.
2 [2009] AIRCFB 450.
3 [2009] AIRCFB 865.
4 Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No. 2) 59 FLR 78.
