1
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Patrick Container Ports Pty Ltd T/A Patrick Port Logistics
(AG2014/8934)
PATRICK PORTS LOGISTICS (CARGOLINK) ENTERPRISE
AGREEMENT 2014
Road transport industry
COMMISSIONER CARGILL SYDNEY, 16 JANUARY 2015
Application for approval of the Patrick Port Logistics (Cargolink) Enterprise Agreement
2014.
[1] This decision concerns an application made under section 185 of the Fair Work Act
2009 (the Act) for the approval of a single-enterprise agreement. The application has been
made by Patrick Container Ports Pty Ltd trading as Patrick Port Logistics (PPL). The title of
the proposed agreement is Patrick Port Logistics (Cargolink) Enterprise Agreement 2014 (the
Agreement).
[2] The application is opposed by The Maritime Union of Australia (MUA) which was a
bargaining representative for the Agreement.
[3] The matter was listed for mention and directions by telephone on 24 October 2014.
Dates were set for the filing and exchange of witness statements and outlines of submissions.
The matter was heard on 16 December 2014. At that hearing PPL was represented by Mr
Jauncey and the MUA by Mr Quinn. Both representatives are solicitors and appeared with
permission.
[4] Evidence was given on behalf of the MUA by the following witnesses:
Mr Lally Full Container Handler employed by PPL at the Cargolink
facility on Fisherman’s Island in the Port of Brisbane. His
[2015] FWCA 248 [Note: An appeal pursuant to s.604 (C2015/1598) was
lodged against this decision - refer to Full Bench decision dated 17 April
2015 [[2015] FWCFB 2472] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB2472.htm
[2015] FWCA 248
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witness statement dated 19 November 2014 was marked Exhibit
MUA 1. Mr Lally was not required for cross-examination;
Mr S McCallum Full Container Handler employed by PPL also based at the
Fisherman’s Island facility and member of the MUA. His
witness statement dated 19 November 2014 was marked Exhibit
MUA 2. His oral testimony is at PN 41-176 of Transcript. Mr
McCallum gave his evidence by videolink;
Mr D Monk Receipt and Dispatch Clerk employed by PPL at the
Fisherman’s Island facility and member of the MUA. His
witness statement dated 20 November 2014 was marked Exhibit
MUA 3. His oral testimony is at PN 198-454 of Transcript. Mr
Monk gave his testimony by videolink;
Mr T Munday Deputy Branch Secretary of the Queensland Branch of the
MUA. His witness statement dated 1 December 2014 was
marked MUA 4 and his oral testimony is at PN 476-715 of
Transcript;
Mr P Sheehan Assistant Branch Secretary of the Queensland Branch of the
MUA. His witness statement dated 26 November 2014 was
marked Exhibit MUA 5 and his oral testimony is at PN 723-779
of Transcript.
[5] Two witnesses provided evidence on behalf of PPL. Mr D Nash, PPL’s Regional
Manager for Victoria and South Australia provided a statement dated 12 December 2014,
Exhibit PPL 10. His oral testimony is at PN 783-820 of Transcript. Mr D Arnold, Queensland
State Manager for PPL provided a statement dated 12 December 2014, Exhibit PPL 11. His
oral testimony is at PN 821-871 of Transcript.
[6] In order to put the following evidence into context it should be noted that the basis for
the MUA’s objection to approval of the Agreement concerns whether it passes the better off
overall test (BOOT) in relation to some or all of a particular group of employees who would
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be covered by the Agreement. The principal issue is the relevant award for the purposes of
applying the BOOT. PPL says it is the Road Transport and Distribution Award 2010 (the
Transport Award). The MUA says it is the Stevedoring Industry Award 2010 (the Stevedoring
Award).
[7] The particular group of employees about whose terms and conditions of employment
the objection is made are those who perform work at the Cargolink facility at Curlew Street,
Fisherman’s Island. The MUA accepts that the Transport Award is the relevant award for the
purposes of applying the BOOT in respect of PPL’s employees who carry out work at the four
West Melbourne facilities described in the coverage clause of the proposed agreement.
EVIDENCE
[8] The witnesses provided detailed evidence. The following is a summary of that
evidence.
[9] Mr Lally provides evidence about the equipment which he uses to undertake his duties
at Fisherman’s Island. He also gives evidence about the hours that he works and his
calculations of what he would receive for working those hours under both the Stevedoring
Award and the proposed Agreement. Mr Lally’s evidence is that, based on those calculations,
he would typically receive an extra $360.67 per week under the award compared with the
Agreement. That amount would be higher if he worked additional overtime or worked on a
Saturday or public holiday.
[10] Mr Lally’s evidence is that he is not aware of any provisions in the Agreement which
would compensate him for this difference in pay.
[11] Mr McCallum gives evidence about the Cargolink facility at Fisherman’s Island. He
says that the MX zone is a defining feature of the facility. It provides a direct link to the wharf
which enables Cargolink to transfer containers to the wharf for loading onto vessels. Mr
McCallum describes this as Cargolink’s essential function.
[12] Mr McCallum provides evidence about the equipment which he uses to carry out his
duties. He provides estimates of the percentage of his time which is spent undertaking various
duties. Under cross-examination he agreed that about 50% of his day was spent moving
containers to and from the MX zone, 25% involved loading and unloading containers on and
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off trucks and the remainder was spent dealing with the storage of refrigerated containers
(reefers). Mr McCallum agreed that, although he had to report maintenance issues in relation
to reefers, he didn’t actually fix them.
[13] Mr McCallum provides an overview of the operations at the facility including the
movement of containers through the MX zone both inbound from vessels and outbound from
trucks, the tracking and storage of containers as well as quarantine procedures for dealing
with contaminated boxes.
[14] Mr McCallum’s evidence is that, during his employment with PPL, no other union has
approached him or has attempted to become involved in industrial issues at the site. Mr
McCallum gives evidence that, on two occasions during 2014, he was involved in taking
protected industrial action in the form of a ban on movement of certain types of cargo through
the MX zone. In each instance PPL informed him that it estimated that he would usually
spend 50% of his time doing that work and consequently his pay was reduced proportionately.
[15] Mr McCallum gives evidence about his usual hours of work and his calculation of
what he would receive for working those hours under the Stevedoring Award and the
Agreement. He estimates that he would typically receive an extra $171.84 per week if the
Agreement was in force compared with what he should receive under the Stevedoring Award.
Mr McCallum notes that this amount would decrease if he worked small amounts of
additional overtime or worked on Saturdays, Sundays or public holidays.
[16] Mr Monk gives evidence about the layout of the different areas within the Cargolink
facility. He notes that it is located directly adjacent to the Terminal operated by Patrick
Stevedores Holdings Ltd (PSHL). Mr Monk says that the facility operates independently of
the PPL road transport business and notes that it is not physically linked to any of those
transport yards.
[17] Mr Monk describes the site as a specialist interchange facility designed to efficiently
move containers to and from vessels in order to minimise waiting time on the wharf. He notes
that it is not primarily a storage facility.
[18] Mr Monk estimates that about 60% of his role consists of planning the yard, including
co-ordinating the movement of containers through the MX zone and their storage. The
remainder of his time involves dealing with customers such as exporters, importers and
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shipping companies. Mr Monk testified that the Clerks decide where containers are to be
stored in the yard and where the boxes are placed in each storage block within the yard.
[19] Mr Monk provides evidence about the movement of containers through the facility and
the specific processes which are used to deal with imports and exports. These processes
include the entry of data into the different IT systems such as PFS and Maximus.
[20] Mr Monk’s evidence is that Cargolink’s quarantine wash facility provides a service
which would otherwise be performed as part of the stevedoring operations on the wharf. He
notes that, although other stevedores have quarantine facilities at the wharf, PSHL does not.
[21] Mr Monk gives evidence about the processes used to deal with reefers. He notes that
PSHL has limited storage facilities for holding reefers on the wharf.
[22] Mr Monk’s evidence is that the facility’s location immediately adjacent to the wharf is
essential for its role. The proximity to the wharf results in the facility being able to operate as
an extension of the wharf. Mr Monk’s evidence is that the waiting time for trucks delivering
containers to Cargolink is much shorter than for those delivering directly to the wharf. He
says this is due to the PPL employees performing functions which would otherwise be done
by the stevedores.
[23] Mr Monk’s evidence is that Cargolink also provides a much more efficient service for
sending empty containers onto vessels for export than could be provided if the containers
were stored in a transport yard or container park.
[24] Mr Monk gives evidence that maintenance issues at the Cargolink facility are reported
to PSHL which arranges for a qualified person to come and rectify the problem. He
understands this is different to the procedure in place at the PPL transport yards at
Fisherman’s Island where PSHL is not involved in maintenance.
[25] Mr Monk’s evidence is that, in the period of his employment with PPL, no union other
than the MUA has been involved in representing employees at the site and he has not been
approached to join any other organisation. Mr Monk provides similar evidence to that of Mr
McCallum about the protected industrial action and pay deductions set out in paragraph 14
above.
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[26] Mr Monk gives evidence about his usual work pattern. He provides calculations of
what he would receive for working the same hours under both the proposed Agreement and
the Stevedoring Award. Mr Monk estimates that he would receive an extra $148.12 per week
under the Agreement compared with the award. He notes that this amount would decrease if
he worked small amounts of additional overtime or on a Saturday, Sunday or public holiday.
[27] Mr Munday’s industrial responsibilities include PSHL’s Terminal operations at
Fisherman’s Island. Prior to him becoming an officer of the MUA he was employed as a
waterside worker at that Terminal.
[28] Mr Munday provides evidence of the history of Cargolink. He notes that it was set up
in around 1999 to provide a “user interface” for Patrick’s Terminal operations in both
Melbourne and Brisbane. Mr Munday’s evidence is that, initially, there were no barriers
between the Cargolink facility and the Terminal at Fisherman’s Island.
[29] Mr Munday notes that an enterprise agreement to cover the Cargolink facilities in both
Brisbane and Melbourne was negotiated between the company and the MUA, the Cargolink
Pty Ltd National Enterprise Based Agreement 1999 (the 1999 Agreement). Mr Munday refers
to several statements in the preamble to that agreement. His evidence is that Cargolink has
always operated as an extension of and in coordination with PSHL stevedoring operations as
envisaged in this preamble.
[30] Mr Munday’s evidence is that the Cargolink facility at Fisherman’s Island was
established so that part of the stevedoring process of loading and unloading vessels could be
done more efficiently. He says that this is reflected in the range of work which is undertaken
by PPL employees and the way in which the work is organised. Mr Munday provides a memo
and a newsletter which he says demonstrate the overlapping responsibilities of stevedoring
and PPL employees, the degree of control of the PPL employees by PSHL Terminal managers
and the coordination between the two entities.
[31] Mr Munday’s evidence is that, initially, most of Cargolink’s work consisted of
performing quarantine functions for PSHL however the scope of the work has since
expanded. These extra functions such as dealing with reefers and empty containers and the
import and export of full containers were all previously undertaken by PSHL’s stevedoring
employees on the wharf. Mr Munday’s evidence is that these roles are still performed by
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employees at the other stevedoring companies, DP World and Hutchinson. He says that the
heavy equipment used by the PPL Full Container Handlers is similar to that used by
stevedoring employees.
[32] Mr Munday’s evidence is that the work of the PPL employees is consistent with that
undertaken by stevedoring employees at other PSHL Terminals. Mr Munday notes that the
latter are covered by the Patrick Terminals Enterprise Agreement 2012. Mr Munday’s
evidence is that there is significant overlap between the classifications under that agreement
and those in the proposed Agreement. He says that the shift structure at the Cargolink facility
is similar to shifts worked by stevedores at Fisherman’s Island.
[33] Mr Munday gives evidence that each of the stevedoring operators at Fisherman’s
Island has its own quarantine facility however he was not aware of any restrictions on the
services each could offer.
[34] Mr Munday notes that only one of the Cargolink facilities in Melbourne is directly
connected to the wharf area at that port.
[35] Mr Munday gives evidence that, from the commencement of Cargolink’s operations at
Fisherman’s Island, it has been an MUA site. No other union has had a presence and the
MUA’s right to represent employees has not been challenged by PPL.
[36] Mr Munday notes that the MUA was a party to the 1999 agreement. He also notes that
the union has been a party to and covered by successor agreements. During cross-examination
Mr Munday agreed that, at the time the 1999 agreement was certified, the MUA
acknowledged that the predecessor to the Transport Award was the appropriate award for the
then no-disadvantage test. He also agreed that the 1999 agreement contained weekly hours of
work, shift loadings and penalty rates which were reflective of the transport award rather than
the relevant stevedoring award in place at the time. Mr Munday’s evidence is that the MUA’s
position on these issues was based on the Cargolink operation at the time.
[37] Mr Munday’s evidence is that the MUA negotiated the Patrick Logistics (Port Services
Yard MUA) Certified Agreement 2006 (the 2006 agreement) which, among others, covered
the Cargolink employees at Fisherman’s Island. He agreed that it included hours of work,
penalties and loadings which were reflective of the then transport award. He also agreed that
the 2006 agreement was signed by an official of the MUA who also provided a statutory
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declaration which identified the predecessor transport award as being the award which
covered the work of employees to be covered by that agreement.
[38] Mr Munday is not aware if the MUA opposed approval of the Patrick Port Logistics
(Cargolink) Enterprise Agreement 2011 (the 2011 agreement) on the basis that it did not pass
the BOOT. He agreed that the Transport Award is incorporated into the 2011 agreement and
that the agreement reflects the “transport industry” terms and conditions.
[39] Mr Sheehan’s role with the MUA has included organising members at Cargolink at
Fisherman’s Island and undertaking negotiations for the proposed Agreement.
[40] Mr Sheehan’s evidence is that the facility has always been an MUA site and that the
majority of employees there are members of the MUA. No other unions have sought to
represent the employees. Mr Sheehan’s evidence is that PPL has never challenged the MUA’s
right to represent the employees and he notes that the site has been covered by a series of
agreements negotiated with the MUA and to which the union has been a party and/or been
covered by.
[41] Mr Sheehan notes that the site of the Cargolink facility was previously part of
Patrick’s Terminal. He says that, in effect, the area was just fenced off and given a new name
but employees continued to do traditional stevedoring work.
[42] Mr Sheehan’s evidence is that the PPL employees do similar work to the stevedoring
employees of the other operators at Fisherman’s Island. They use the same equipment, carry
out the same functions and work the same shift patterns as the stevedoring employees
including a regular night shift.
[43] Mr Sheehan’s evidence is that the Cargolink facility at Fisherman’s Island is
significantly different to the West Melbourne operations in terms of its location and the
operations it performs.
[44] Mr Sheehan notes that the proposed Agreement contains higher base rates of pay than
the Stevedoring Award. He says however that the Agreement has less favourable ordinary
hours of work, penalty rates for afternoon and night shifts and overtime rates. Mr Sheehan
provides calculations showing that employees working afternoon and night shifts would earn
up to $438.09 less per week if paid under the Agreement compared to the Stevedoring Award.
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[45] Mr Nash provides evidence about PPL’s business and its place within the Asciano
group of companies. He notes that, generally, the businesses have no, or limited access to the
IT systems used by the other parts of the group. Mr Nash says that, in Victoria, PPL’s main
services include: transport by road of containerised goods between port operators and
exporters/importers; handling and storage of containerised goods awaiting receipt or despatch;
handling, storage, repair and cleaning of empty containers; washing of containers and freight
for quarantine purposes; and, some unpacking work.
[46] Mr Nash gives evidence that PPL does not operate any port Terminals or employ
anyone involved in directly loading or unloading vessels anywhere in Australia. He notes that
PSHL operates the Terminal at East Swanson Dock in the Port of Melbourne. Mr Nash’s
evidence is that PPL operates a fleet of prime movers and also contracts with a number of
owner operators of such vehicles. Its competitors are other businesses which provide road
transport services.
[47] Mr Nash provides evidence about the layout of the various yards and areas at the West
Melbourne facility and gives a detailed description of the services which PPL undertakes at
each of the depots. This is broken down into the types of services which are carried out for
exporters, importers, in respect of empty containers and in relation to washing for quarantine.
[48] Mr Nash gives evidence about the roles and duties of PPL’s Container Handlers and
Receipt and Despatch Clerks within the overall provision of these services to customers. He
states that he considers that the work which is carried out by PPL employees at the Appleton
Depot, one of the West Melbourne facilities, to be of a very similar nature to that performed
by the employees at the Cargolink facility at Fisherman’s Island and the PPL Container Depot
in Brisbane.
[49] Mr Nash’s evidence is that he does not believe that the work undertaken by PPL
employees at any of its West Melbourne facilities or by those engaged at the Cargolink yard is
of a similar nature to that carried out by the employees of PSHL at its East Swanson Dock
Terminal. Mr Nash estimates that about half of the full containers for both import and export
are transported to this Terminal. The other half are sent to the nearby DP World Terminal.
[50] Mr Nash gives evidence as to the differences between the work undertaken by the PPL
employees at the various West Melbourne facilities and the PSHL employees at the East
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Swanson Dock. In respect of the Container Handlers he says these differences include the
types of machinery and the processes which are used, the requirement for different skills and
abilities to operate the various pieces of equipment and the fact that the PSHL employees do
not have any duties in relation to quarantine washing.
[51] In respect of the Receipt and Despatch Clerks the differences include the distinct IT
systems which are used, the fact that PSHL employees do not have to liaise with customers or
road transport providers in respect of quarantine washing or with shipping companies in
relation to the storage of empty containers. Further, the PSHL employees do not have to plan
high density stacking for medium or long term use and the PPL employees do not have to
prepare vessel lading and unlading plans.
[52] Mr Nash provides evidence about PPL’s operations in Sydney and his understanding
of the industrial landscape there. He notes that, although PPL has not sought to challenge the
MUA’s ability to represent its various employees, it has never accepted that the union has
exclusive coverage of those employees.
[53] Mr Nash acknowledged that he had not worked at the Fisherman’s Island facility.
[54] Mr Arnold provides an overview of the PPL business and notes that, in Queensland, its
primary services include the transportation by road of containers, both full and empty, the
receipt and storage of those containers, unpacking and palletisation of inbound freight,
washing and repair of empty containers and washing and fumigation of containers for
quarantine purposes.
[55] Mr Arnold’s evidence is that PPL’s main competitors are road transport businesses
and enterprises that operate container depots or provide quarantine washing services. He
provides evidence about PPL’s trucking fleet and depots and a breakdown of where its
employees are located. Mr Arnold says that, of 141 employees in Queensland, about 13,
including salaried Supervisors, are engaged at the Cargolink facility at Fisherman’s Island.
[56] Mr Arnold provides a detailed description of the three PPL depots at Fisherman’s
Island and describes each of them as being a transport hub. His evidence is that each
undertakes similar operations and notes that containers can be moved through or stored at the
different depots depending on PPL’s requirements. Mr Arnold’s evidence is that PPL uses the
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same equipment at each of the depots. He notes that there is one manager responsible for both
the Cargolink facility and the depot at Port Drive.
[57] Mr Arnold’s evidence is that PPL is not engaged in loading or unloading vessels
anywhere in Australia. He notes that, at Fisherman’s Island, such operations are carried out by
stevedoring companies such as PSHL, DP World and Hutchinson. Mr Arnold’s evidence is
that he understands that there is some limited exchange of information between the IT
systems used by PPL and PSHL but that there is no general “visibility” from one to the other.
[58] Mr Arnold provides detailed evidence about the processes involved in transporting
containers for both import and export purposes including the different steps undertaken at the
various depots. He also gives evidence about the services which PPL provides in relation to
the transportation and storage of empty containers as well as the quarantine washing and
fumigation services.
[59] Mr Arnold’s evidence is that none of the Terminal operators at Fisherman’s Island
have facilities which can wash and fumigate to the standard provided by PPL and other
holders of “Class 1.1” licences. Mr Arnold estimates that about 90% of freight and machinery
requiring quarantine services at the Cargolink facility will have been transported there by
road. I note that Mr Monk’s evidence was that, although a large percentage comes by road, it
would not be as much as 90%.
[60] Mr Arnold’s evidence is that the work of PPL employees at the Cargolink facility is
very similar to and, in some cases is identical to the duties of the PPL employees at the other
depots at Fisherman’s Island. Those employees are covered by an enterprise agreement which
was negotiated with the Transport Workers’ Union of Australia. Mr Arnold says that
generally a Clerk is rostered on for night shift at the Port Drive Depot.
[61] Mr Arnold disagrees that the Cargolink facility operates as an extension to PSHL’s
stevedoring business or the wharf. He also disagrees that any PSHL manager has any control
over PPL employees or that there is any overlap in the responsibilities of PPL and PSHL
employees.
[62] Mr Arnold does not agree that the work performed by PPL employees at the Cargolink
facility is the same as that done by stevedoring employees of DP World or Hutchinson. He
specifically notes that the IT systems, equipment and the customer liaison roles are different
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and further notes that the Terminals operated by those stevedores do not have a facility similar
to the MX zone.
[63] Mr Arnold also disagrees that the work which is done by employees at the Cargolink
facility is similar to that performed by PSHL employees. He says that most of the equipment
is different and notes that, even though PSHL employees occasionally use forklifts, these are
differently configured and used for different purposes to those used by PPL employees. Mr
Arnold also notes that the two groups of employees use different IT systems and have
different customer liaison and planning roles.
[64] Mr Arnold disagrees that the Cargolink facility operates independently of PPL’s road
transport services and says that, on the contrary, it is an integral part of those services. Mr
Arnold says that some of the duties which Mr Monk described as being part of his role come
within the responsibility of PPL’s Supervisors rather than of the Clerks. Mr Arnold’s evidence
is that the role of PPL employees at the Cargolink facility in respect of handling reefers is the
same as that of PPL employees at the other depots.
[65] Mr Arnold notes that, on occasion, PPL organises for maintenance work at the facility
to be carried out by PSHL but that this is only a contractual arrangment. He says that often it
is cheaper for arrangements to be made with another service provider.
MUA SUBMISSIONS
[66] A written outline of submissions was provided prior to proceedings. Mr Quinn also
made oral submissions.
[67] The MUA submits that the first issue to be decided is whether PPL is engaged in the
stevedoring industry. If that is answered in the affirmative, the Stevedoring Award can cover
the Cargolink employees to the exclusion of any other modern award. If however the
Transport Award could also cover the employees, the next issue to be determined is which is
the most appropriate award. The MUA submits that this question should be considered in
light of the history of the facility, the relationship between it and the stevedoring work
undertaken on the adjacent wharf and the nature of the work of the PPL employees.
[68] Reference is made to the coverage clause of the Stevedoring Award and the definitions
of “stevedoring industry” and “wharf” in clause 3.1 thereof and to Mr Monk’s evidence. The
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MUA submits that the wharf area at Fisherman’s Island extends at least to the adjacent
Cargolink yard in which PPL employees undertake work which is part of the shipping of
cargo and, consequently, PPL is engaged in the stevedoring industry.
[69] The MUA relies upon the judgement in Co-operative Bulk Handling v Waterside
Workers Federation of Australia (1980) 32 ALR 541 @ 558 (Co-operative Bulk Handling)
for the proposition that stacking cargo and loading and transport of containers forms part of
loading operations for shipping.
[70] The MUA submits that the Stevedoring Award contains classifications which
explicitly cover the work being done by the PPL employees and refers in particular to
paragraphs (i) and (vi) of the Grade 3 classification and paragraphs (iv) and (vi) of the Grade
4 classification set out at Schedule B to the award.
[71] The MUA does not dispute that the Transport Award could cover PPL and the relevant
employees but says that the classifications in the Stevedoring Award are more appropriate to
the particular work and environment at the Cargolink facility.
[72] The MUA submits that the evidence shows that the facility has been carved out of the
wharf area to perform stevedoring functions. The only difference is the particular organisation
of the work. The MUA submits that Cargolink’s efficiencies are achieved only because it is
located immediately adjacent to the wharf and the hours of work of both PPL and PSHL
employees are co-ordinated. The operation of the MX zone is a further example of the
integration of the facility with the wharf.
[73] The MUA submits that an additional factor in the environment which points to the
facility being covered by the Stevedoring Award is the union’s unchallenged history of
representation at the site. The MUA submits that the occupation of the PPL employees has
been accepted as being that of a waterside worker: Cooperative Bulk Handling @ 551, 553,
555 and 557.
[74] The MUA points to the location, history, intimate connection with the stevedoring
operations and nature of the work as giving rise to the employees being waterside workers.
Further factors include the nature of the material being worked on, cargo, and the purpose of
the work, loading and unloading vessels.
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[75] The MUA submits that the Transport Award is very generic and is limited in relation
to distribution facilities to those “from which” goods are distributed by road. The more
specific nature of the Stevedoring Award points to it being the relevant award.
[76] The MUA submits that the specialised nature of the work of the employees at the
Cargolink facility reinforces the appropriateness of the Stevedoring Award. The work carried
out in relation to the quarantine washing services and in handling reefers is very specific and
is encompassed by the classifications in the Stevedoring Award. Similarly, the work of the
Clerks is quite specific and more akin to the classification descriptions in the Stevedoring
Award than the Transport Award which does not contain any of these duties within its
classification descriptions.
[77] Again, the MUA points to the MX zone as highlighting the integration between the
Cargolink facility and the wharf and distinguishing the facility from the road transport
distribution yards. The union notes that PPL recognised that movement of goods through the
zone amounted to 50% of the work of the employees.
[78] The MUA submits that the primary purpose of the facility is to support the stevedoring
operations. This is critical to determining the relevant award coverage: Brand v APIR Systems
Limited [2003] AIRC 1161.
[79] The MUA submits that some of the PPL employees who are engaged at the Cargolink
facility at Fisherman’s Island would not be better off under the proposed Agreement than they
would be under the Stevedoring Award. The major areas of deficit are the shift loadings and
overtime rates in the Agreement. Reference is made to the Full Bench decision in Re:
Armacell Australia Pty Ltd [2010] FWAFB 9985 @ [41] and the decision in Re: Jellifish! Pty
Ltd [2012] FWA 9640.
[80] The MUA submits that the only provisions in the Agreement which are more
advantageous than the Stevedoring Award are the base rates of pay. The union notes that the
award contains several provisions which are more beneficial than the Agreement including
ordinary hours of work, shift loadings, overtime rates, allowances and meal breaks.
[81] The ordinary hours of work in the Agreement are 38 per week compared with 35 per
week under the Stevedoring Award. The afternoon and night shift penalties are 17.5% and
30% respectively under the Agreement and 50% and 100% under the award. Saturday and
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Sunday loadings are 50% and 100% respectively under the Agreement and 100% and 150%
under the award, depending upon when the shift is worked. The MUA submits that employees
who work afternoon or night shifts or who work at the weekend will be significantly
disadvantaged.
[82] Overtime rates under the Agreement are also less beneficial than under the
Stevedoring Award. This is a significant disadvantage to employees when considered in
conjunction with the expanded ordinary hours of work. Shift workers will be further
disadvantaged as overtime in the Agreement is based on the ordinary rates of pay rather those
which include the shift loading as in the Stevedoring Award.
[83] The Agreement does not provide for several allowances which are payable in
appropriate circumstances under the Stevedoring Award. These include laundry, first aid,
footwear and clothing and Terminal operation allowances. The entitlements to breaks under
the Agreement are less advantageous than under the award.
[84] The MUA submits that the evidence shows employees would be significantly better
off under the Stevedoring Award than under the Agreement based on the present rostering
arrangements. This is especially the case for employees working afternoon and night shifts.
The union notes that, under present arrangements, the same employees will continue to be
most disadvantaged. It notes however that the disadvantage could affect all the employees if
PPL changes the rostering system.
PPL SUBMISSIONS
[85] A written outline of submissions was provided prior to proceedings. Mr Jauncey also
made oral submissions.
[86] PPL submits that the Transport Award covers its employees at the Cargolink facility at
Fisherman’s Island. It refers to the definition of the road transport and distribution industry at
clause 3 of the award and, in particular, paragraphs (a), (b) and (d) of the definition. PPL
submits that the evidence reveals that it operates a business which employs many drivers and
runs a large fleet of vehicles. The business transports by road goods and merchandise,
including meat products, for both import and export. It also transports empty containers to and
from container depots and goods and machinery requiring quarantine washing. PPL submits
that these aspects of the business fall within paragraph (a) of the definition.
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[87] PPL rejects the MUA submission that the Cargolink facility is not one from which
goods are distributed by road. It notes that the evidence shows that both empty and full
containers as well as containers and machinery for washing are all dispatched from the yard
by road. It also notes that all of these objects will have been stored at the facility. Further, the
facility is operated as “part of or in connection with” PPL’s road transport business.
[88] PPL submits that the relevant employees would fall under the classification structure
of the Transport Award as set out in Schedule C to the award. In particular, the primary duty
of the Heavy Container Lifters which is to operate a forklift with a 40 tonne lifting capacity,
fits exactly within one of the descriptors for a Transport Worker Grade 6.
[89] PPL submits that the skills and abilities required of the Foreman/Clerical employees
bring them within the descriptors for a distribution facility employee level 3 in Schedule B of
the Transport Award. These employees would then be classified as Transport Workers Grade
7 under Schedule C.
[90] PPL submits that the Stevedoring Award does not cover any of its employees. It also
submits that it is not in the stevedoring industry. It refers to the definition of that industry at
clause 3 of the award and notes that the focus is on the loading and unloading of cargo on and
off a ship rather than some more general idea of “loading operations”. PPL submits that it is
clear that neither it nor any of its employees are engaged in loading cargo on or off vessels.
That job is done by PSHL employees.
[91] PPL rejects the MUA submission that the Cargolink facility is adjacent to the wharf. It
submits that the definition of wharf in the Stevedoring Award would at most only cover the
storage areas in the PSHL Terminal and immediately beside. PPL notes that the Cargolink
area is fenced off from the Terminal and is physically separated from it by the road and the
truck parking bays.
[92] PPL submits that the work performed at the Cargolink facility is much more than just
dealing with containers passing through the PSHL Terminal. It submits that a substantial
portion of the work relates to the handling and storage of items which are not moved through
the MX zone or the Terminal.
[2015] FWCA 248
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[93] PPL also submits that, even if it is accepted that the Cargolink facility is located
adjacent to the wharf, the performance of some activities which relate to the stevedoring
industry does not mean that PPL itself is engaged in the industry. Reference is made to the
judgement of the High Court of Australia in R v Central Reference Board; Ex parte Thiess
(Repairs) Pty Limited (1948) 77 CLR 123 @ 134/5 and the “substantial character of the
industry” test set out therein. Reference is also made to Transport Workers’ Union Australia v
Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 (Coles Supermarkets).
[94] PPL submits that it is necessary to focus on the nature of its business rather than the
activities of the employees. It notes that an employer may be engaged in more than one
industry. However it submits that, in order to reach such a conclusion, it is necessary to
decide that any separate purposes of an enterprise are each of a substantial character: Dyno
Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union [2005] AIRC
622 @ [50] (Dyno Nobel).
[95] PPL submits that the evidence shows that it conducts a single integrated business the
primary purpose of which is to provide road transport services to customers. The substantial
character of the business is inextricably linked to the road transport and distribution industry.
[96] PPL submits that the MUA’s approach focuses on particular activities but ignores the
fact that those activities are part of a broader integrated business. PPL submits that the MUA
approach is erroneous: Dyno Nobel @ [59] and [60].
[97] PPL submits that the work of the employees at the Cargolink facility would not in any
way properly fit within classifications in the Stevedoring Award. Rather, the classifications in
the Transport Award better reflect the work and environment of the employees. PPL submits
that when the work is considered in context the Transport Award is the more appropriate
instrument.
[98] PPL submits that the evidence establishes that the work undertaken at the facility is
closely akin or identical to that performed at its other depots and to that done by employees of
other businesses in the road transport and distribution industry. It also submits that the work is
carried out for the purpose of PPL’s business in that industry and is different to the work
undertaken by employees of the stevedores.
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[99] Further, there has been long acceptance that the employees at the facility are covered
by the Transport Award. The MUA has previously accepted that the Transport Award was the
appropriate award for the purposes of the BOOT as well as the earlier no-disadvantage test.
[100] PPL submits that the evidence supports a finding that the quarantine washing facility
is not “intimately connected” with the Terminal as suggested by the MUA. On the contrary,
the facility is connected with the road transport services offered by PPL.
[101] PPL submits that the MUA’s eligibility to represent employees is of little relevance to
the question of whether their employer is engaged in a particular industry. PPL submits that
the BOOT should be applied on the basis that the Transport Award is the relevant award. In
the alternative PPL wishes to make further submissions on the extent of any disadvantage
there might be and consider the possibility of providing a suitable undertaking.
CONCLUSIONS
[102] Section 186 of the Act provides that the Fair Work Commission (FWC) must approve
an enterprise agreement if the requirements of the section and section 187 are met. Section
186(2)(d) provides that FWC must be satisfied that the enterprise agreement passes the
BOOT. The nature of the BOOT is set out in section 193 of the Act. Section 193 relevantly
provides that:
“(1) An enterprise agreement that is not a greenfields agreement passes the better
off overall test under this section if the FWC is satisfied, as at the test time, that each
award covered employee, and each prospective award covered employee, for the
agreement would be better off overall if the agreement applied to the employee than if
the relevant modern award applied to the employee.
.....
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern
award) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to
perform under the agreement; and
(iii) covers his or her employer.
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Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a
person who, if he or she were an employee at the test time of an employer covered by
the agreement:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would
perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the agreement by the
FWC was made under section 185.
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the
better off overall test, if a class of employees to which a particular employee belongs
would be better off if the agreement applied to that class than if the relevant modern
award applied to that class, the FWC is entitled to assume, in the absence of evidence
to the contrary, that the employee would be better off overall if the agreement applied
to the employee.”
[103] The main question to be addressed is what is the relevant award against which the
proposed Agreement is to be tested in relation to the PPL employees who are engaged to
perform work at the Cargolink facility, Curlew Street, Fisherman’s Island in the Port of
Brisbane. As noted earlier, there is 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.
[104] Clause 2.1 of the Agreement provides that it is to cover the company and its
employees who are employed to perform work in accordance with the classifications set out
in clause 18 at the four West Melbourne sites, the Brisbane site and at any other similar
operation to which the company extends its terms. Clause 18 provides for three
classifications: Store Worker; Heavy Container Lifter; and, Foreman/Clerical. It contains
descriptors for each classification.
[105] Clause 4 of the Stevedoring Award relevantly provides:
[2015] FWCA 248
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“This award covers employers throughout Australia engaged in the stevedoring
industry and their employees in the classifications listed in clause 13 to the exclusion
of any other modern award.”
[106] The “stevedoring industry” is defined in clause 3 as meaning:
“the loading and unloading of cargo into or from a ship including its transporting and
storage at or adjacent to a wharf”.
[107] “Wharf” is then defined as including:
“a pier, jetty, ramp, or shed, storage or stacking area comprising part of the wharf area
for stevedoring industry activities”.
[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.
[2015] FWCA 248
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[111] That is sufficient to decide this matter. However, in the event that I am incorrect and
the definition of “stevedoring industry” is intended to have wider application, I shall examine
whether PPL is nevertheless in that industry.
[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
[2015] FWCA 248
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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.
[118] The next issue to be determined is whether the Agreement passes the BOOT. The
Form F17 which accompanied the application for approval of the Agreement contains a list of
terms and conditions in the Agreement which are more beneficial than the Transport Award
and a list of those which are less beneficial. I have considered that material and, more
importantly, have compared the Agreement with the Transport Award. I am satisfied that
employees and prospective employees will be better off overall if the Agreement applies to
them.
[119] In conclusion I record that I am satisfied that each of the requirements of section 186,
187 and 188 as are relevant to this application are met.
[120] As the Agreement does not contain a flexibility term, the model flexibility term is
taken to be a term of the Agreement.
[121] I note that the Form F18 from the MUA records that, if the Agreement is approved, it
wishes to be covered by it. In accordance with section 201(2) I note that the Agreement
covers the organisation.
[122] The Agreement is approved and, in accordance with s.54, will operate from 23 January
2015. The nominal expiry date is 4 April 2017.
COMMISSIONER
Appearances:
S. Jauncey, solicitor, with N. Hill for Patrick Container Ports Pty Ltd trading as Patrick Port
Logistics
D. Quinn, solicitor, with P Sheehan for The Maritime Union of Australia
[2015] FWCA 248
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Hearing details:
Sydney,
Brisbane by Video Link.
2014
December 16.
Printed by authority of the Commonwealth Government Printer
Price code C, AE412171 PR559942
