1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Maritime Union of Australia, The
v
ASP Shipping Management Pty Ltd
(C2015/3860)
VICE PRESIDENT WATSON MELBOURNE, 31 JULY 2015
Dispute concerning consultation about major workplace change and redeployment efforts
made in relation to redundancy – Whether Commission has jurisdiction to arbitrate these
matters – Provisions of the ASP Ship Management Pty Limited Seagoing Ratings Enterprise
Agreement 2012 – Fair Work Act 2009; s.739.
Introduction
[1] This decision arises from an application for the Fair Work Commission (the
Commission) to deal with a dispute by the Maritime Union of Australia (the MUA) under
s.739 of the Fair Work Act 2009 (the Act). It concerns employees employed by ASP Shipping
Management Pty Ltd (ASP) on a BP fleet vessel known as the British Loyalty. ASP is in the
business of crewing and managing vessels on behalf of third parties within the Australian
coastal shipping trade.
[2] The dispute relates to provisions of the ASP Ship Management Pty Limited Seagoing
Ratings Enterprise Agreement 2012 (the Agreement) regarding consultation about major
workplace change and redeployment efforts made in relation to redundancy.
[3] The issue in dispute in the initial application lodged by the MUA concerned whether
ASP had made every reasonable attempt to redeploy affected employees whose positions on
the British Loyalty had been made redundant. The MUA asserts that ASP had not consulted
and that, as a result, the redundancies were not genuine. Submissions filed by the MUA
during the course of proceedings also raised a further issue of whether the company had
complied with the obligation to consult directly with employees.
[4] The matter was listed for conference on 8 and 28 May 2015 but the parties were
unable to reach a resolution. The MUA requested that the matter be listed for arbitration. At
the hearing of the matter on 2 July 2015, Mr A. Howell, of counsel, appeared for the MUA
and Mr R. Millar, of counsel, appeared for ASP.
[2015] FWC 4523
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 4523
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Background
[5] In or around June 2014, BP announced the closure of its Bulwer Refinery located in
Brisbane. At this time, ASP crewed and managed two tanker vessels on behalf of BP: the
British Loyalty and the British Fidelity. The closure of the Bulwer Refinery was seen to be
likely to have an impact on the operations of the British Loyalty as the vessel was used by BP
solely for transporting products from the Bulwer Refinery. On 13 March 2015, ASP was
advised that the British Loyalty would cease operating in Australian coastal trade with effect
from the arrival of the vessel in Singapore between 17 and 21 May 2015.
[6] ASP employed 38 employees in two ‘swings’ of 19 employees which were required to
crew the British Loyalty. With the departure of the vessel from Australian coastal trade, 38
positions with ASP were made redundant. Of those 38 positions, 20 were employed as
Ratings, Stewards or Cooks and are covered by the Agreement. On 19 March 2015, an email
was sent by ASP to the crew of the British Loyalty and the British Fidelity which provided
details of the changes occurring, the potential redundancies and seeking expressions of
interest for voluntary redundancies.
[7] By early April 2015, ASP had received 11 expressions of interest for voluntary
redundancy. There were also later discussions held about redeploying an additional employee
to a vacant position on another ship. ASP then engaged in a process of assessing employees
from the BP vessels for redundancy against criteria that it had developed. The skills matrix
assessed all Ratings, Cooks and Stewards from the BP vessels against the following criteria:
length of service, disciplinary record, quality of work, initiative, flexibility, leave,
transferrable skill, cooperation and work commitment. As a result of this assessment, 8
individuals were selected for redundancy.
Relevant Provisions of the Agreement
[8] The dispute is said to arise from clauses 6.1(a) and 37.1 of the Agreement. Clause 6.1
relevantly provides that:
“6.1 Subject to clause 6.2, this Agreement incorporates the terms of:
a) the Seagoing Industry Award 2010; and
b) the Maritime Industry (Seamen, Cooks and Stewards) Long Service Leave
Award 1995
(Collectively, "the Awards") as amended from time to time.
c) This Agreement is read in conjunction with Fleet Instructions, as varied
from time to time.”
[9] The MUA contends that clause 8.1 of the Seagoing Industry Award 2010 is
incorporated into the Agreement by way of clause 6.1(a) of the Agreement. Clause 8.1 of the
Seagoing Industry Award 2010 states as follows:
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“8.1 Consultation regarding major workplace change
(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes
in production, program, organisation, structure or technology that are likely to
have significant effects on employees, the employer must notify the employees
who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in
the composition, operation or size of the employer’s 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. Provided that where this award makes provision for
alteration of any of these matters an alteration is deemed not to have significant
effect.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their
representatives, if any, the introduction of the changes referred to in
clause 8.1(a), the effects the changes are likely to have on employees and
measures to avert or mitigate the adverse effects of such changes on employees
and must give prompt consideration to matters raised by the employees and/or
their representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite
decision has been made by the employer to make the changes referred to in
clause 8.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing
to the employees concerned and their representatives, if any, all relevant
information about the changes including the nature of the changes proposed,
the expected effects of the changes on employees and any other matters likely
to affect employees provided that no employer is required to disclose
confidential information the disclosure of which would be contrary to the
employer’s interests.”
[10] Clause 37 of the Agreement concerns “Redundancy and Redeployment” and states
that:
“37.1 ASPSM is committed to ensuring the ongoing viability of the company and
through this, ongoing employment opportunities for those employed by it. The parties
to this Agreement recognise that given the nature of the industry in which ASPSM
operates there may be occasions when positions in ASPSM become redundant.
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000122/ma000122-10.htm#P195_15449
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000122/ma000122-10.htm#P195_15449
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Where positions are made redundant every reasonable effort will be made to redeploy
the affected employee to a currently vacant position if the employee has the necessary
competencies to perform the duties of the position.
Where positions are made redundant and efforts to redeploy the affected employee
have been unsuccessful, notice of termination will be provided.”
The Issues for Determination
[11] The parties have raised a range of issues that potentially fall for determination. ASP
contests the jurisdiction of the Commission to determine the dispute as it has evolved until the
hearing of the matter. If there is jurisdiction, the matter calls for an interpretation of terms of
the Agreement relating to redundancy and consultation and a determination of whether, in
making employees on the British Loyalty redundant, it has complied with those terms. The
MUA has summarised the issues in dispute between the parties as follows:
“36.1 Whether the Commission has jurisdiction to entertain the current dispute;
36.2 Whether the Commission is satisfied that ASP has met its obligations to consult
with the MUA and its employees. In particular:
(a) Insofar as the MUA is concerned, whether:
(i) ASP provided “all relevant information about the changes”, in
writing, including information as to “the nature of the changes
proposed, the expected effects of the changes on employees and any
other matters likely to affect employees”. In particular, information in
relation to the selection process for those to be made forcibly
redundant; and
(ii) ASP engaged in genuine consultation in relation to “measures to
avert or mitigate the adverse effects of such changes on employees”,
and whether ASP gave genuine “prompt consideration to matters
raised by the” MUA “in relation to the changes”. In particular, the lack
of consultation in relation to the selection criteria for those to be made
redundant, and the lack of genuine consultation in relation to offering
voluntary redundancies across the broader ASP workforce before
considering forced redundancies.
(b) Insofar as the employees themselves are concerned, whether ASP has met
its obligations to consult with employees, including:
(i) Whether ASP provided directly to employees “all relevant
information about the changes”, in writing, including information as to
“the nature of the changes proposed, the expected effects of the changes
on employees and any other matters likely to affect employees”. In
particular, that the Respondent had determined it would not offer
voluntary redundancies across the broader ASP workforce before
moving to forced redundancies, and whether ASP notified employees at
all about the creation of selection criteria for forced redundancy, that
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the forced redundancies would extend across both the British Loyalty
and the British Fidelity, and the application of the selection criteria; and
(ii) Whether ASP engaged in genuine consultation directly with
employees in relation to “measures to avert or mitigate the adverse
effects of such changes on employees”, in particular in relation to the
offering of voluntary redundancies across the broader ASP workforce
before considering forced redundancies.
36.3 Whether ASP has made “every reasonable effort … to redeploy [each] affected
employee to a currently vacant position”, in the manner contemplated by cl 37 of the
Agreement; and
36.4 What relief the Commission should Order in resolution of the dispute, noting it is
accepted that the interpretation of the Agreement is only a step, albeit a necessary step
in light of s 739 of the Act, in the resolution of the dispute. The Commission is not
engaged in a public function declaring rights, or exercising judicial power: the
Commission forms and expresses opinions about legal rights and obligations in the
context of and within the terms of the function conferred on it by the Agreement. That
function is more general than merely one of interpretation and is directed towards the
resolution of disputes.”
[12] The Commission must first determine whether it has jurisdiction to deal with the
matter.
Jurisdiction
[13] The dispute comes to the Commission by way of clause 9 of the Agreement, the
“Settlement of disputes procedure”. This provision relevantly provides:
“9.1 All disputes relating to matters arising under the Agreement or the National
Employment Standards or in relation to the interpretation or application of this
Agreement, shall be dealt with in accordance with these procedures. The parties
to this Agreement undertake to resolve any grievances or industrial disputes on the
basis of goodwill, consultation, discussion, open communication and disclosure
of all relevant facts. To this end it is the intent of all parties to this Agreement
that:
grievances are properly investigated and potential disputes receive fair,
prompt and careful attention and consideration;
work continues normally and the fleet continues to trade without interruption
from industrial stoppages, bans and/or limitations, whilst the disputes
procedure outlined below is put into effect;
shipboard issues are resolved as close to the source of the concern as possible;
sufficient Company and, when an employee requests Union's representation,
Union resources are available to enable matters to be resolved by discussion,
as far as possible, without the assistance of industrial tribunals;
no party to this Agreement shall be prejudiced, in relation to the final
settlement of any issue, by the continuance of work in accordance with these
principles, pending resolution of the issue.
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…
9.5 If a matter is unable to be resolved, it may be referred to Fair Work Australia
(FWA) for conciliation and/or arbitration. Alternatively, if there is consent by the
Company and the employee (and the Union if requested by the employee) the matter
can be referred to a mutually agreed mediator/facilitator for resolution.”
[14] ASP submits that the Commission does not have jurisdiction to arbitrate a dispute in
relation to consultation as the dispute has never been about the consultation process and the
predecessor steps in the dispute resolution procedure in the Agreement have not occurred in
relation to consultation.
[15] It further submits that in order to enliven the Commission’s dispute resolution powers,
the dispute must be one “relating to matters arising under the Agreement or the National
Employment Standards or in relation to the interpretation or application of this
Agreement”. It contends that the Commission does not have jurisdiction to arbitrate a
dispute about the selection of employees for redundancy as the process of employee
selection is not a matter dealt with by the Agreement.
[16] The MUA submits that ASP’s submission in relation to the Commission’s jurisdiction
to arbitrate a dispute in relation to consultation is premised on the terms of the notice filed on
7 May 2015. It contends that the Commission is not confined to the dispute notification
document and that an industrial dispute will often evolve over time, especially during the
conciliation phase of dispute resolution, which may take considerable time and always
precedes the arbitration itself. The MUA submits that, in characterising a dispute, it is
necessary to have regard to the nature of the dispute alleged in an originating application but
also to the factual circumstances as they evolve.1 The MUA contends that this matter is a
classical illustration of such an evolution. It contends that the dispute notification reflected the
subject matter that was then in dispute as being that a number of employees were to be
retrenched and that ASP had failed to make reasonable efforts to redeploy persons whose
positions were no longer required. The selection criteria to be applied was not developed until
the week of 11 May 2015 and the MUA states that it raised concerns about the lack of
consultation with ASP both orally on 29 May 2015 and in writing on 2 June 2015. The MUA
contends that ASP’s submission that the dispute has been purely about the selection of
employees for redundancy is untenable.
[17] The MUA submits that determining the scope of the jurisdiction to resolve disputes
turns on the proper construction of the dispute resolution clause. The MUA submits that a
dispute that stems from a party failing to meet commitments given during the consultation
process in relation to the undertaking of a voluntary redundancy exercise, is a matter
sufficiently closely connected to the Agreement. It submits that this enables it to be properly
characterised as a dispute relating to matters arising under the Agreement, even if it does not
raise a matter in relation to the interpretation of the Agreement itself.
[18] In the Private Arbitration Case,2 the High Court made it clear that the power of
arbitration under a dispute settlement clause is a power conferred by the parties under their
agreement. The Commission's jurisdiction is therefore derived from the dispute resolution
term in the relevant workplace instrument, and qualified by any limitation in the agreement.
This notion is reflected in s.739 of the Act.
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[19] In Re PKIU; Ex parte Vista Paper Products Pty Ltd3 Gaudron J (with whom Brennan,
Dawson and Toohey JJ relevantly agreed) noted that:
“…an industrial dispute is not necessarily fixed and definite, either in terms of its
subject-matter or in terms of the parties to it; a dispute “may be diminished or ended or
enlarged or altered during ... proceedings in the Commission” (R v Bain; Ex parte
Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, per Murphy J at p 168) or, for
that matter, at any stage during the course of the dispute itself”
[20] A Full Bench has observed that although that comment was made in the context of an
“industrial dispute” within the meaning of s.4 of the Industrial Relations Act 1988, it is
equally applicable to a dispute notified pursuant to a dispute settlement procedure in a
certified agreement.4
[21] In Maritime Union of Australia v Australian Plant Services Pty Ltd, Lacy SDP
expressed the importance of characterising a dispute in this way:5
“Parliament has authorised the Commission to exercise powers under the agreement to
settle disputes over the application of the agreement and, accordingly, its powers are
limited to disputes of that kind. Therefore it is necessary for the Commission, in each
case where it is asked to deal with the matter arising under the disputes settling
procedure in an agreement, to ascertain the character of the dispute before it in order to
determine whether the matter is a dispute over the application of the agreement, and,
importantly, the character of the dispute is distinguishable from the order that may be
made in settlement of the dispute.”
(references omitted)
[22] These observations have been approved by Full Bench decisions of the Commission
including Goodman Fielder Consumer Foods Limited v CEPU,6 Seven Network (Operations)
Limited v CPSU,7 and United Firefighters’ Union v Metropolitan Fire and Emergency
Services Board.8
[23] It is therefore necessary to have regard to the nature of a dispute said to arise under the
terms of the agreement having regard to the original notification and the relevant factual
circumstances as they evolve through the process of conciliation and arbitration of the
dispute. Such a broad approach was endorsed by a Full Bench of the Australian Industrial
Relations Commission in the case of Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union v Holden Limited where the following is stated:
“[45] A dispute referred to the Commission must be properly characterised before
powers conferred by a dispute settlement provision in a certified agreement are
exercised. This is necessary in order to determine whether the dispute is ‘over the
application of the agreement’ within the meaning of s.170LW of the WR Act. As noted
by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this
expression has not been judicially considered. The majority went on to observe that:
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“A relationship between the provisions of the relevant agreement and the
subject matters in dispute would appear to be an essential element in the
identification of any dispute over the application of the agreement. ...”
[46] We adopt these observations. Further, in our view the expression should not be
narrowly construed. In this context we agree with the observation of the Full Bench in
Shop, Distributive and Allied Employees Association v Big W Discount Department
Stores that:
“...what comprises a dispute over the application of the agreement should not
be narrowly construed; to do so would be contrary to the notion that certified
agreements are intended to facilitate the harmonious working relationship of
the parties during the operation of the agreement.”
[47] In characterising the nature of the dispute in this matter the Commission is not
confined to the dispute notification document. The entire factual background is
relevant, including matters such as the submissions advanced. In this context we note
that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in
determining whether an application calls on the Commission to exercise judicial, as
opposed to arbitral, power ‘a court should review the entire factual background to
properly characterise the claim and the power sought to be invoked’”9
[24] In the United Firefighters’ Union case, referred to above, a Full Bench considered the
scope of a dispute over a consultation provision. It said:
“Policies which are not dealt with in the Agreement are subject to the consultation
processes in clause 9. Although the consultation processes end with a disputes
resolution clause, we are of the view that on its proper construction, that clause
concerns disputes over the consultation process under the clause, rather than disputes
over matters which are subject to consultation.”
[25] I am satisfied that the dispute that has evolved during the course of discussions,
conciliation and arbitration extends to consultation. Through the dispute settlement processes
there has been a consideration of consultation obligations. Insofar as there remains a dispute
about the application of the consultation clause I consider that the Commission has
jurisdiction to deal with it. Hence the Commission has jurisdiction to consider those aspects
of the dispute summarised in paragraph 2(a) and (b) of the MUA’s formulation set out above.
[26] Paragraph 3 in the MUA’s formulation is expressed by reference to the terms of clause
37 of the Agreement. So expressed, I consider that the dispute is in relation to the application
of the Agreement. That is not to say however that jurisdiction is open-ended. Jurisdiction is
confined to the application of the terms of the Agreement. It does not extend to a broader
dispute about redeployment generally.
[27] Paragraph 4 of the MUA’s formulation concerns orders in resolution of the dispute. In
my view, the effect of the authorities referred to above is that the Commission has jurisdiction
to make a determination in settlement of the dispute, but not orders of an enforceable nature.
After arbitrating on the matters in dispute I will consider the nature of the resultant
determination.
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Alleged failure in consultation obligations
[28] The parties acknowledge that the decision to make positions on the British Loyalty
redundant was a decision to “introduce major changes in … organisation, structure … that are
likely to have significant effects on employees” within the terms of clause 8 of Seagoing
Industry Award 2010. The MUA submits that this triggered obligations under that clause to
notify the employees and their representatives and to discuss the change.
[29] The MUA recognises that ASP notified its employees and the MUA of the loss of the
British Loyalty positions by emails that were sent on 19 March 2015. However, it submits
that the obligation to provide employees and their union with all relevant information about
the change and discuss the changes is not a mere formality and goes beyond simply the
obligation to notify. It submits that it requires that the following be provided in writing at
minimum:
the expected effects of the loss of the positions on employees;
the process that the employer intended to go through to mitigate the adverse effects
of the loss of the positions; and
the process the employer intended to adopt in selecting who will be terminated and
information derived from the application of that process.
[30] The MUA contends that information about the process is of particular importance in
this matter as, other than the obligation to take all reasonable steps to redeploy employees into
currently vacant positions, the Agreement does not prescribe any particular process to be
followed in the event that positions are made redundant.
[31] ASP submits that there was extensive consultation prior to the introduction of the
change. Mr P. Jones, ASP IR/HR Manager, and Mr T. Asome, ASP General Manager, gave
evidence about the process which started in July 2014 and included the following:
A meeting held on the British Loyalty on 30 July 2014 at which employees were
advised of the likely impact of the closure of the Bulwer Refinery;
Meetings held with the crew of the British Loyalty and the British Fidelity in
December 2014 and February 2015 to discuss the anticipated redundancies following
the potential departure of the British Loyalty from Australian coastal trade;
A consultative meeting on 9 December 2014 with ASP employee representatives and
MUA officials regarding a review of the current enterprise agreement, at which there
was discussion regarding the possibility that BP would remove the British Loyalty
from Australian coastal trade and the possible redundancies;
A meeting held with British Loyalty crew on 23 February 2015 where employees
were told that notification was anticipated from BP in the coming weeks regarding
the potential departure of the British Loyalty;
A meeting on 25 February 2015 with Mr I. Bray from the MUA concerning the
closure of the Bulwer Refinery and its implications;
A meeting on 3 March 2015 with the crew of the British Fidelity and the MUA
concerning the departure of the British Loyalty;
Email communication with Mr Bray on 19 March 2015 concerning the
announcement by BP that the British Loyalty would cease operations on the
Australian coastal trade;
[2015] FWC 4523
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Email communication to the crews of the British Loyalty and British Fidelity on 19
March 2015 advising of the details of the changes occurring, the potential
redundancies and seeking expressions of interest in voluntary redundancies;
A meeting with the crew of the British Loyalty and MUA officials on 26 March
2015 to discuss the changes occurring and follow up on the expressions of interest
for voluntary redundancies;
At the meeting held on 26 March 2015 a Q&A Discussion Paper which canvassed
various issues arising in the prospective redundancy process was distributed to
employees;
A meeting on 14 April 2015 on the British Fidelity to discuss the changes occurring
and confirm that the redundancy process extended to the British Fidelity;
Discussions with Mr Bray in early April 2015 concerning the acceptance of offers of
voluntary redundancy and the process for pursuing involuntary redundancies;
A meeting with Mr Bray on 6 May 2015 concerning the redundancy process and the
selection of employees for forced redundancy;
A letter sent to the MUA on 13 May 2015 regarding the redundancy process for the
British Loyalty crew;
A meeting on 15 May 2015 with officials from the MUA concerning the proposed
forced redundancies;
Emails and telephone discussions with Mr Bray on 29 May 2015 concerning the
selection of employees for redundancy; and
An email on 4 June 2015 to Mr Bray again concerning the selection of employees for
redundancy.
[32] ASP submits that both the MUA and employees were kept fully informed throughout
the process and were given every opportunity to provide their views. It contends that the
validity of this statement is evidenced in changes made to the application of the redundancy
selection criteria based on consultation with the MUA.
[33] On the basis of the evidence in this matter I find that there has been extensive
consultation with the MUA over the proposed changes and measures to minimise the adverse
impact of the changes. It is not necessary to examine every fine detail of the changes and
determine whether each detail was subject to discussion. The changes arising from the
termination of a ship management contract were quite obvious and potentially involved 38
redundancies. The various discussions with the MUA considered the ways in which the
adverse impacts of this change could be minimised. The MUA actively pursued attempts to
avoid involuntary redundancies. These measures were considered and to some extent adopted.
The ultimate refusal of ASP to seek voluntary redundancies from other vessels outside the BP
fleet is not a failure of consultation. It is a disagreement about a matter not dealt with in the
consultation clause. A disagreement about a matter that has been the subject of consultation is
not a dispute about the consultation clause itself, as the United Firefighters’ Union case
quoted above makes clear. I find that the consultation with the MUA fulfilled the
requirements of clause 8.
[34] At the hearing of the matter, the MUA raised a further issue concerning the
consultation process. It submitted that there was a failure to consult with individual
employees. The MUA submits that there was a requirement to consult with individual
employees over the selection criteria to be applied to the compulsory redundancies process as
opposed to the changes generally. Evidence was called from an employee who, due to
rostering dates, had missed meetings scheduled to discuss the changes. The MUA contends
[2015] FWC 4523
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that, despite the constructive working relationship that exists between the MUA and ASP, it
does not relieve ASP of its obligation to communicate and consult with the employees
themselves.
[35] ASP contends that neither of these contentions should be accepted by the Commission.
It submits that the evidence does not support the contention that the employee had not been
adequately consulted as, on any view, there was substantial compliance, in good faith, with
the consultation requirements, and that the process should not be impeded by a procedural
irregularity that ASP was not made aware of until the hearing of the matter at the
Commission. ASP also submits that the contention that there was a requirement to consult
with the MUA and individual employees over the precise selection criteria should be rejected
as the MUA was consulted over the selection criteria and provided feedback to ASP about it.
ASP contends that there is no requirement to consult with each employee and the MUA over
the proposed matrix for redundancy selection as consultation on such matters would be
impractical given the vested interests that each employee has in the process.
[36] I am satisfied on the evidence in this matter that ASP consulted with employees in
accordance with its obligations under clause 8. Various communications were made with the
MUA and employees. In such matters it is appropriate to regard the MUA as a representative
of its members and that appropriate information provided to the MUA will be conveyed to its
members. That does not entirely relieve ASP of its obligations to communicate with
employees but it is one means of communication that is legitimate and provides a practical
way to engage in consultations. In this case ASP has consulted with employees and engaged
in more detailed consultation with the MUA. The evidence establishes that ASP provided
adequate opportunity for representations to be made by, or on behalf of, employees and it took
into account the representations that were made.
[37] I find that ASP has complied with its obligations to consult under clause 8 of the
Award.
Reasonable Efforts to Redeploy
[38] The dispute in this respect set out in paragraph 3 of the MUA’s formulation is
expressed by reference to clause 37 of the Agreement. The terms of clause 37 are set out
above. The obligation under the clause to make reasonable efforts to redeploy is limited to a
“current vacant position”. The evidence establishes that ASP did consider redeployment in all
current vacant positions and was successful in placing a number of employees in such
positions. In my view, there can be no doubt that ASP made all reasonable efforts to redeploy
redundant employees to current vacant positions.
[39] The real grievance of the MUA is the refusal of ASP to seek to create vacancies
elsewhere in the ASP fleet by offering voluntary redundancies outside the BP vessels. That is
not a requirement of clause 37 and the disagreement about that matter is not a dispute about
the application of clause 37. I do not have jurisdiction to deal with that wider dispute.
Determination
[40] I determine the dispute concerning consultation by finding that ASP fulfilled its
obligations under clause 8 of the Award.
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[41] I determine the dispute about redeployment by finding that ASP made reasonable
efforts to redeploy redundant employees to all current vacant positions.
VICE PRESIDENT
Appearances:
Mr A. Howell, of counsel, for the Maritime Union of Australia.
Mr R. Millar, of counsel, for ASP Shipping Management Pty Ltd.
Hearing details:
2015.
Melbourne.
2 July.
Final written submissions:
The Maritime Union of Australia on 8 July 2015.
ASP Shipping Management Pty Ltd on 13 July 2015.
Printed by authority of the Commonwealth Government Printer
Price code C, PR569079
1 [2015] FWCFB 3964.
2 Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16.
3 (1993) 113 ALR 421.
4 PR973884.
5 PR908236.
6 PR921688.
7 PR933766.
8 PR973884.
9 PR940366.
THE OF THE FAIR WORK C. SEN THE NOISS
