Fair Work Act 2009
s.739—Dispute resolution
s.526 Application to deal with a stand down dispute

Construction, Forestry, Maritime, Mining and Energy Union
v
Qube Ports Pty Ltd T/A Qube Ports & Bulk
(C2021/3780/ C2021/3782)

S.739 - Alleged dispute about any matters arising under an enterprise agreement
S.526 - Application to deal with a dispute involving stand down - stoppage of work

[1] This decision deals with two separate applications (the applications) that have been lodged by the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) in respect of a dispute with Qube Ports Pty Ltd T/A Qube Ports & Bulk (Qube). The applications were lodged with the Fair Work Commission (the Commission) on 2 July 2021 and are made under s.739 and s.526 of the Fair Work Act 2009 (the FW Act).

[2] In summary, the applications concern the standing down of employee Mr Stephen Johnson, 1 an MUA member who is employed as a stevedore to perform work at Qube’s operations on Sydney Harbour.

[3] In its s.739 application, the MUA required the Commission, to determine the dispute in accordance with clause 48 Dispute Resolution of the Qube Ports Pty Ltd Sydney Harbour Enterprise Agreement 2016 (the Agreement), where at Step 5 of subclause 48.1, a party may refer the dispute to the Commission for arbitration, in which case the decision is binding on the parties, subject to any appeal rights. 2 Parties are defined in the Agreement as being Qube, its employees and the MUA.3

[4] The Agreement has a nominal expiry date of 30 June 2020.

[5] Should the s.739 dispute be determined in the MUA’s favour, the MUA does not require its s.526 application be dealt with as it involves seeking the same remedy.  4

[6] This dispute was subject to Commission conciliation conferences on 1 December 2020, and 8 March 2021 under a previous application 5 and the current applications were conciliated on 27 July 2021 and 24 September 2021, as the matters remained unresolved, the dispute was listed for a hearing.

[7] At the hearing, both parties were granted leave to be represented by counsel pursuant to s.596(2)(a) of the FW Act.

Questions to be determined

[8] On 28 October 2021, the MUA sent the Commission an email which stated that the parties had agreed to have the following question determined:

In the events that have happened and in circumstances where Mr Johnson has been purportedly stood down by the respondent since April 2020 and has been told that he will be stood down potentially indefinitely, is Mr Johnson’s position redundant?

[9] In the written submissions filed by the MUA on 4 November 2021, the matters for determination were further particularised as:

“First, an application to the Commission pursuant to the power of private arbitration conferred on the Commission by clause 48 to the Agreement. The issues for determination in this application are whether:

i. in accordance with clause 13.3 of the Agreement, Qube is required to offer Mr Johnson a voluntary redundancy;

ii. Mr Johnson’s position is otherwise redundant.

Second, an application to the Commission under s.526 of the FW Act to resolve dispute about the operation of Part 3-5 of the FW Act.” 6

Background

[10] Qube operates ports and provides stevedoring services involving the loading of cargo onto and from ships at over 30 ports throughout Australia, including at the Port of Sydney Harbour (Sydney Harbour). Work at Sydney Harbour is distinguished by being the only port where the stevedoring services relate solely to the loading and unloading of cargo from passenger cruise ships. 7

[11] As a result of the COVID-19 pandemic and associated government restrictions, cruise ships since 18 March 2020, have been prevented from entering into Australian waters and at Australian ports (with limited exceptions). As a consequence, Qube has not been able to service any cruise ships at Sydney Harbour. 8

[12] It is noted that on 10 December 2021, the Commonwealth government announced that the human biosecurity emergency period under the Biosecurity Act 2015 (that has been in place since 18 March 2020), was to be extended to 17 February 2022. The announcement also stated that the restrictions on the entry of cruise vessels within the Australian territory would be reviewed monthly. 9

[13] The Agreement applies to Qube’s employees who are employed on Sydney Harbour and work in the classifications detailed in Schedule 2 of Part A of the Agreement. While Part A is not readily identified in the Agreement, it is taken to be everything that precedes what is identified as Part B.

[14] Prior to the suspension of operations at Sydney Harbour, Qube had 19 employees, working at Sydney Harbour comprising of:

•  variable salary employees (VSEs),

•  guaranteed salaried employees (GWEs) and

•  supplementary employees.

[15] VSEs and GWEs are employees who are not placed on rosters and are irregularly engaged to work and are paid a minimum fortnightly guaranteed payment. Supplementary employees are casually engaged to supplement the use of other employees and paid on an hourly basis. 10

[16] On 30 March 2020, the Commonwealth government announced the introduction of the JobKeeper subsidy, in order to assist keeping employees in employment during the COVID-19 pandemic, and Qube made an application to the Australian Tax Office to receive JobKeeper payments for its Sydney Harbour employees.

[17] Mr Stephen Johnson, the employee the subject of the dispute, is employed as a VSE at Sydney Harbour. 11 Mr Johnson stopped receiving work in March 2020, when the Commonwealth government banned all passenger ships from entering Australia.

[18] Mr Johnson was initially ‘stood down’ in May 2020 under the JobKeeper stand down provisions previously contained in Part 6-4C of the FW Act, and subsequently in December 2020 stood down under s.524 of the FW Act. 12

[19] On 1 April 2020, Qube notified its Sydney Harbour employees that it was activating the ‘Negative Circumstances’ provisions in subclause 13.2 of the Agreement. 13

Agreement provisions

[20] Clause 13 Economic conditions of the Agreement notes that general stevedoring is subject to impacts from economic peaks and troughs. The clause then deals with what may occur when there is a downturn in work.

[21] Clause 13.2 provides that the clause ‘may be triggered as a result of a specified ‘negative circumstance’, clause 13 is extracted in full below:

“13. Economic conditions

13.1 Intent

13.1.1 General stevedoring is subject to impacts from economic peaks and troughs and it is acknowledged that the ability of the Company to provide the minimum guaranteed hours (as provided in for in clauses 9.1.1a, 9.2.1a, 9.6.4a and 9.7.4b for all Employees may be subject to economic conditions beyond the Company’s control (Negative Circumstances). Equally, it is acknowledged that the Company favours full time permanent employment arrangements and in favourable economic conditions (Positive Circumstances), career progression will occur when worked hours meet benchmarks and triggers identified in this Agreement.

13.1.2 It is intended that the Parties will work together to minimise redundancies and promote full time permanent employment with stable productive and secure jobs throughout the economic cycle.

13.1.3 The Parties recognise that information sharing enhances understanding of work patterns and enables a cooperative approach in dealing with both Negative Circumstances and Positive Circumstances. As such, Economic Conditions Data will be fully disclosed at the ERC meeting and to the Union on a monthly basis.

13.2 Activation as a result of Negative Circumstances

13.2.1 This clause may be triggered in the following circumstances:

a. Where there are at least three consecutive months of hours shortfall indicating a sustained hours deficit and the projected work stream will not address the hour shortfall (Hours Shortfall); or

b. In the event of the loss of a major contract or other like event that will have significant impact on available hours that will generate an Hours Shortfall, this clause may be triggered immediately.

13.2.2 This clause will only be triggered where necessary and where this is objectively ascertainable and quantifiable evidence of the circumstances in clause 13.2.1.

13.2.3 Disclosure of any objectively ascertainable and quantifiable evidence and relevant information may be confidential and commercially sensitivity. On request of the Company, the Union and relevant Employees will execute a deed of confidentiality before critical confidential and commercially sensitive information is provided.

13.2.4 Where this clause is triggered, the consequent measures will prevail over any other provisions in this Agreement to the extent of any inconsistency. The measures will be confirmed by an exchange of letters between the Company and the Union and may be reflected in Individual Flexibility Arrangements between the Company and affected Employees.

13.3 Measures

13.3.1 There are a number of measures that can be implemented in the first instance to address Negative Circumstances and mitigate against redundancies. The Parties will not unreasonably withhold agreement and will support the measures sought to be implemented in accordance with this clause.

13.3.2 The measures that can be utilised are set out in steps 1 to 4 below and may be implemented by agreement between the Parties and an endorsement of a majority vote of Employees at a meeting of the Union.

13.3.3 When Negative Circumstances exist and the clause is triggered as set out in clause 13.2.1, the steps detailed in the table below are to be followed to assist in reducing an Hours Shortfall:

13.3.4 Where measures have been implemented in accordance with clause 13.3.3 above, they will be continuously reviewed.

13.3.5 Nothing prevents the Parties implementing measures contained in an earlier step in clause 13.3.3 at any stage in the process to mitigate against the need for redundancies.

13.3.6 Steps 1 to 3 must be completed within 30 days, after which step 4 will commence.

13.3.7 Once this clause is triggered in accordance with clause 13.2.2, the following will occur automatically:

a. While this clause is in operation and notwithstanding clause 10 of this Agreement, the order of allocation will be as follows, subject to the Employee having the requisite skills:

i. FSEs to their pre-existing annual salary then;

ii. VSEs to their pre-existing guarantee then;

iii. GWEs to their pre-existing guarantee then;

iv. Supplementary Employees.

b. Any AAH not worked will be rolled over in accordance with clause 9.3 of this Agreement.

13.3.8 It is not intended that any entitlements accrued, before or during the time when the measures are effected will be adversely impacted. This includes the redundancy entitlement to be paid if and when redundancies are effected in accordance with steps 4 or 5. The redundancy amount payable will be made at the category and grade held by the Employee prior to the Employee accepting a variation pursuant to clause 13.3.3. E.g.: Where an Employee has accepted a lower grade or category in accordance with clause 13.3.3, any redundancy payment will be paid at the Employee’s original category and grade prior to the implementation of the measure in clause 13.3.3.

13.3.9 Where the Company has implemented steps 1 to 4 of this clause 13.3.3, it will have discharged its obligations in respect of the Introduction of Change requirements in clause 46 of this Agreement.

13.4 Reversion

13.4.1 As economic conditions improve and there is objectively ascertainable and quantifiable evidence to identify discernible improvements in the Negative Circumstances that caused the triggering of this clause:

a. the Company will review and consult with the ERC and the Union options for reinstating conditions that may have been changed due to Negative Circumstances e.g. minimum hours, minimum salary and fortnightly guarantee that prevailed before the Negative Circumstances.

b. Where there are at least three consecutive months where Employees meet pre-existing target hours in a particular employment category and the projected work stream remains positive, the pre-existing arrangements will be reinstated.

c. Nothing prevents the parties agreeing to revert to conditions that existed prior to the Negative Circumstances at an earlier point in time. The reversion may occur incrementally and as quickly as reasonably possible.

13.5 Positive Circumstances – Assessed at Labour Review

13.5.1 The triggers for additional PFSE positions are as follows:

a. The number of additional PFSEs will equal the number of VSE who have achieved 1820 worked hours in the previous Year, divided by two (rounded up to the next whole number).

b. If a PFSE fails to continue to meet the minimum hours requirement of 1820 hours on average over the 24-month period of their provisional FSE appointment and provided the PFSE has been allocated on an equitable basis in accordance with clause 10.1, the PFSEs appointed will revert to a VSE position.

13.5.2 The trigger for new PVSE positions are as follows:

a. The number of additional PVSEs will equal the number of GWEs who have achieved the VSE guarantee in clause 9.6.4a of this Agreement in the previous Year, divided by two (rounded up to the next whole number) and will be assessed at the Labour Review in clause 14.

b. Where a PFSE position is created, it may be backfilled by a PVSE provided the hours worked support doing so.

13.5.3 Nothing prevents the parties from agreeing to upgrades in absence of any triggers.” 14

[22] In around April 2020, Qube met with Warren Smith, Deputy National Secretary of the MUA, to discuss Qube activating the ‘negative circumstances’ provisions set out at 13.2 above arising out of the negative impact of the COVID-19 pandemic on Qube’s operations. Following this meeting, further meetings occurred between Qube, the MUA and various employees at the Port about the Measures under cl.13.3 of the Agreement. 15

[23] Following from these discussions, many of the VSE and GWE employees at Sydney Harbour took accrued annual leave and long service leave entitlements, including Mr Johnson. Mr Johnson took annual leave of one day on 17 April 2020 and five days between 20 and 24 April 2020. 16

[24] Also in April 2020, Mr Johnson received correspondence signed by Mr Coulton, Qube’s General Manager Industrial Relations (undated), stating that there had been a complete cessation in work on passenger cruise ships entering Australian ports resulting in the work he was performing at Sydney Harbour stopping.  17 The correspondence stated that it was proposed that he be stood down commencing 4 May 2020, for a temporary period as part of a JobKeeper enabling direction as he could not be usefully employed.

[25] In May 2020, Qube commenced making JobKeeper payments to its employees at Sydney Harbour including Mr Johnson. 18

[26] In around September 2020, Qube met with the MUA to discuss further options for employees at Sydney Harbour. During this meeting, the offering of work for Sydney Harbour VSE and GWE employees to work at Port Kembla was discussed. 19

[27] Following Qube ceasing to be eligible for payments under the JobKeeper scheme and therefore being unable to give JobKeeper enabling stand down directions, Qube sent a memorandum on 23 September 2020 to employees who were receiving JobKeeper payments, explaining that the fortnightly JobKeeper payments would be ending on 27 September 2020. Qube subsequently recommenced paying VSEs and GWEs at Sydney Harbour their minimum fortnightly guaranteed payment. 20

[28] In October 2020, after discussions with the MUA, Qube decided to offer employment at Qube’s operations at the Port of Port Kembla to all VSE and GWE employees at Sydney Harbour under the terms of the Qube Ports Pty Ltd Port of Port Kembla Enterprise Agreement 2016 (the Port Kembla Agreement).

[29] On 16 October 2020, Mr Johnson was offered employment at the Port of Port Kembla, however in around late October 2020, Mr Johnson declined the offer due to his personal circumstances. 21

[30] During discussions between Qube and the MUA, the MUA requested that Qube make an offer of voluntary redundancy to Mr Johnson and another VSE employee at Sydney Harbour who had also not accepted the offer of employment at Port Kembla. This was rejected by Qube, on the basis that in their view, if an offer of voluntary redundancy was made to Mr Johnson and the other employee, the same offer would need to be extended to all of the VSE and GWE employees at Sydney Harbour, and that when cruise ships returned, there would be work for the employees to do. 22

[31] As part of the discussions, Qube and the MUA agreed that when cruise ships returned to Sydney Harbour, the VSEs and GWEs who were now working at Port Kembla would have the right to return to their previous roles at Sydney Harbour. 23

[32] On 21 December 2020, Qube notified Mr Johnson that he was stood down under s.524(1) of the FW Act, and at this point in time Mr Johnson remains stood down on this basis. 24

[33] It is Qube’s position that as soon as the ban on cruise ships entering Australian waters is lifted and upon the resumption of stevedoring services at Sydney Harbour, it intends to cease the s.524 stand down of Mr Johnson. 25

MUA’s Submissions and Evidence

[34] The MUA relied on the witness evidence of:

•  Mr Stephen Johnson, Sydney Harbour Irregular Permanent Stevedore

•  Mr Warren Smith, Deputy National Secretary of the MUA

[35] Neither witness was required for cross-examination.

Evidence of Stephen Johnson

[36] Mr Johnson is a 60-year-old stevedore employed as a ‘Sydney Harbour Irregular Permanent’ (SHIP) at Qube and has been employed in this position since 2009. Mr Johnson is also a member of the MUA. 26 In his role, Mr Johnson is involved in the servicing of passenger cruise ships berthing in Sydney Harbour.27

[37] The terms and conditions of Mr Johnson’s employment are covered by the Agreement, and under Part B - Sydney Harbour of the Agreement Mr Johnson is employed as a SHIP employee. 28

[38] Mr Johnson is also a Variable Salary Employee (VSE) entitled to receive a minimum fortnightly guarantee of $2,790.57, or his actual earnings, whichever is greater. If his actual earnings do not meet the guaranteed minimum in any fortnight, that amount is deducted from actual earnings in the next pay period (subject to his earnings for that period being in excess of the minimum). 29

[39] It was Mr Johnson’s evidence that his work for Qube was entirely dependent on passenger ships coming into Sydney Harbour. Mr Johnson states there were no set rosters, and his hours of work would vary from week to week and from season to season due to the nature of cruise ship timetables. Mr Johnson said that his day-to-day work week was irregular, however, as passenger ships docked consistently in Sydney Harbour, he would work routinely most days of the week. He would not know his shift start and finish times until 4pm each day when he would receive a text message advising him what his shift was for the following day. 30

[40] Mr Johnson stated that in response to the COVID-19 pandemic, in March 2020, the Australian government banned all passenger ships from entering Australia, and following cessation of passenger ships entering Sydney Harbour, he received a text message each day advising that there were “no current orders”. Despite there being no work, Mr Johnson stated that he continued to receive his fortnightly minimum guarantee at that time, and that he has not worked since or been offered any work in his position at Sydney Harbour. 31

[41] In or around April 2020, Mr Johnson stated that he received a letter from Qube advising that Qube would be participating in the JobKeeper scheme. The letter also advised that Qube was providing Mr Johnson with notice of its intention to give Mr Johnson a ‘JobKeeper enabling direction’. Sometime in May 2020, Mr Johnson commenced receiving a JobKeeper payment of $1,500 a fortnight. 32

[42] In September 2020, Mr Johnson said that he was advised by Qube that it was no longer eligible to participate in the JobKeeper scheme beyond 27 September 2020 and that there would no longer be any JobKeeper ‘top up’ payments. Mr Johnson stated that the last JobKeeper payment he received was in the pay period ending 20 September 2020. 33

[43] Mr Johnson stated that after the JobKeeper payments ceased, discussions took place between Qube, the employee representative committee and the MUA in relation to alternative employment at Qube’s Port Kembla operations. Mr Johnson received a letter from Qube dated 16 October 2020 advising him of the offer of alternative employment. Mr Johnson stated that the offer was based on his current classification but would be under the terms of the Port Kembla Agreement. 34

[44] Mr Johnson stated that he refused the offer of alternative employment at Port Kembla as he considered it unreasonable due to his personal circumstances and the financial impact it would have on him. Mr Johnson said that a transfer to Port Kembla would lead to a huge disruption to his family life, particularly in circumstances where his youngest child is about to commence his year 11 and 12 ATAR studies and his wife works full-time. Mr Johnson also stated that such a transfer would involve a significant departure from his normal work life, and at his age, it would be difficult to manage fatigue. 35

[45] It was stated that the shifts he worked at Sydney Harbour were predominantly day shifts with extensions to meet the operational requirements of the passenger cruising industry with shift lengths from 4 to 12 hours, however the Port Kembla operations are 24 hours operations in which many of the shifts worked are 12-hour shifts. 36

[46] Mr Johnson stated that if he were to transfer to Port Kembla, he would be required to work 12 hour shifts and be rostered to work evening and night shifts, and in addition to this, he would have approximately 3 hours travel time in addition to his shifts, making his work and travel time in the vicinity of 15 hours a day. 37

[47] It was Mr Johnson’s evidence that under the Agreement the maximum travel time together with actual hours worked in any one day are not to exceed 14 hours, and if transferred to Port Kembla, his hours would exceed this. 38

[48] Mr Johnson also gave evidence that he would have suffered a financial detriment if he were to work under the Port Kembla Agreement, as the interport transfer provisions under the Agreement would not apply as Qube refused to pay the travel allowance and meal allowance as set out in clause 26.8 and 26.9 of the Agreement on the basis that he would be working under the Port Kembla Agreement. 39

[49] Mr Johnson stated that due to the peaks and troughs of the stevedoring industry, he could be required to work 5 shifts a week, and as a result, he would:

a. Work a 60-hour week;

b. Forego sustenance payments of $339.90 over each 5 days;

c. Forego travel payments of $1,889.15 over each five-day period of work; and

d. Be subject to night and evening shift work where the current Sydney operation works only day shift. 40

[50] Mr Johnson further stated that the impact of such a transfer would mean shift work as well as the extra burden of travel time and non-payment of travel and meal allowances that are payable under the Agreement. 41

[51] Mr Johnson also stated that the regular and reliable nature of the cruise ship timetable, is different to most other shipping, and has over 80% of passenger cruise ships departing Sydney at or around 4pm. Mr Johnson stated that the rosters he worked around these times enabled him to collect his children from school, transport them to organised sporting events and assist training staff at these events, supervise homework and prepare evening meals. 42

[52] It was Mr Johnson’s evidence that when he commenced employment with Qube and throughout his employment Qube has never conveyed to him that a transfer to Port Kembla was a possibility, nor was he ever asked to work at Port Kembla permanently. In all the circumstances, Mr Johnson states that the transfer request was financially and personally unreasonable. 43

[53] Mr Johnson stated that despite the memorandum advising him that there would be no changes to the existing arrangements under the enterprise agreements, he did not receive his minimum guarantee until the pay commencing 5 October 2020. Mr Johnson said that he raised this with Qube and was advised that as he had refused alternate work at Port Kembla he would not receive his minimum guarantee. Despite this, Mr Johnson stated that his minimum guarantee resumed in late October 2020. 44

[54] In December 2020, Mr Johnson stated that he applied for leave without pay (LWOP) so that he would not continue to incur more debt. Mr Johnson stated that his debt to Qube at that time was over $14,000, and so as not to incur further debt, he was advised to backdate his application for leave for 30 November 2020. 45 His LWOP expired on 3 June 2021.

[55] Mr Johnson stated that prior to his LWOP expiring he applied to cash out eight days sick leave (as provided for in the Agreement) to reduce his debt, but the application was refused. 46

[56] Mr Johnson said that after he commenced LWOP he continued to receive text messages which read ‘LWOP’ until the end of the 2020/21 financial year, however he has not received any daily orders from Qube since June 2021. 47

[57] On 21 December 2020, Mr Johnson received a letter from Qube advising that he had been stood down without pay pursuant to s.524 of the FW Act. Mr Johnson stated that he has not been paid since he commenced LWOP on 30 November 2020, and that he has been available and ready to work at Sydney Harbour since that time. 48

Evidence of Warren Smith

[58] Mr Warren Smith is the Deputy National Secretary of the MUA. Mr Smith was appointed to this position on 25 January 2021, and prior to this was the MUA Assistant National Secretary. 49

[59] In his role, Mr Smith is responsible for the industrial interests of members at a national level which includes representing the industrial interests of members employed by Qube. 50

[60] Mr Smith stated that members of the MUA are employed by Qube throughout Australia and are covered by enterprise agreements specific to ports in which Qube operates, each of the enterprise agreements having a common Part A and a Part B which is specific to the particular port operations. 51

[61] It was Mr Smith’s evidence that negotiations for a replacement Agreement were initially delayed due to the cessation of work in Sydney as a result of COVID-19. Mr Smith stated that Qube is now refusing to re-negotiate the Agreement in response to a recently resolved dispute in Fremantle. 52 I note that this evidence was not accepted as correct by Qube.53

[62] Mr Smith’s evidence was that under the Agreement there are different rules concerning the working of hours and the payment of salaries for each category of employment. The categories of employment are set out in clause 9 of the Agreement and include:

a. Full Time Salaried Employees

b. Provisional Full Time Salaried Employees

c. Variable Salary Employees

d. Provisional Variable Salary Employee

e. Guaranteed Wage Employee

f. Supplementary Employees 54

[63] Mr Smith states that FSEs and PFSEs receive fixed annualised salaries depending on their classification and are required to work 1,820 Annualised Accumulated Hours inclusive of approved leave, and that there are no FSEs or PFSEs employed at Sydney Harbour. 55

[64] For all other categories of employment, including VSEs, Mr Smith stated that the Agreement provides for minimum earnings (a minimum guarantee) each fortnight and a system by which work performed may be averaged over longer periods so that hours worked line up with payments made. If a minimum payment is made one fortnight, but hours worked do not meet the payment, then hours worked in subsequent fortnights can ‘payback’ the earlier shortfall. 56

[65] Mr Smith further stated that in Sydney Harbour there is a unique classification called SHIPs, which is outlined in Part B of the Agreement. This classification has evolved over the years and is now in line with VSE employees as identified in Part A of the Agreement. 57

[66] Regarding clause 13 - Economic conditions, Mr Smith stated that the purpose of the clause was to mitigate against major economic shocks and effects on Qube. 58

[67] With the onset of the COVID-19 pandemic in March 2020, Mr Smith stated that Qube triggered this clause at some ports. From about 1 April 2020, Mr Smith was made aware of letters being circulated by Qube activating clause 13.2 Negative Circumstances due to the impact of the pandemic and the cessation of work in Sydney. 59

[68] On 8 April 2020, Mr Smith emailed Michael Sousa, Qube’s Director of Ports, questioning the purpose of the notifications of using clause 13 of the Agreement and stating that MUA branches were open to discussions if clause 13 was adhered to, to which Mr Sousa replied shortly thereafter. 60

[69] On 15 April 2020, Mr Smith received an email from David Wingate, Qube’s General Manager Australian Ports, responding to an email sent by Nathan Donato, the MUA Sydney Branch Assistant Secretary, in response to Mr Sousa clause 13 notification. In the email, Mr Wingate stated that “the future of the cruise industry is unknown … .” 61

[70] On 22 April 2020, Mr Smith attended a Zoom meeting with Mr Sousa and Mr Donato along with the Sydney ERC (Employee Representative Committee 62). At the meeting, Mr Sousa explained the ongoing uncertainty with respect to the resumption of passenger vessel work in Sydney Harbour, and Qube representatives put a view that work could possibly be resuming by December 2020. This did not eventuate and the issue of the transfer of Sydney SHIPs to Port Kembla was discussed. It was agreed the SHIPs could transfer to the Port Kembla Agreement and they would be picked up to resume operations in Sydney Harbour if and when the work resumed.63

[71] It was Mr Smith’s evidence that the Economic conditions clause was designed to mitigate against redundancies, while at the same time managing a process around redundancies recognising that from time to time redundancy can occur, but given the terms of the clause only after mitigation measures had been unsuccessful. 64

[72] Mr Smith stated that Qube triggered the Economics conditions clause nationally, around the same time as it did for Sydney Harbour. 65

[73] Mr Smith said that based on his observations and reports provided to him by MUA members as well as companies operating in the stevedoring sector, the initial concerns regarding the economic and business impact of COVID-19 on the economy did not have the same impact across the Australian waterfront. Mr Smith stated that in the over 18 sites operated by Qube where the Economic conditions clause was triggered, no redundancies occurred, and that work in fact increased or was manageable with existing labour numbers. 66

[74] Mr Smith’s evidence was that at Sydney Harbour there was a different impact due to closure of the passenger cruise industry and this situation was unique. One of the mitigating circumstances applied in Sydney by Qube were offers of employment at the Port of Port Kembla to SHIPs employees. Transfers to Port Kembla were acceptable by all but two employees due to their personal circumstances, including Mr Johnson, with seven transferring to work at Port Kembla. This left two employees stood down in Sydney which included Mr Johnson. 67

[75] Mr Smith noted that Port Kembla is about 100km south of Sydney and that requiring employees to work at Port Kembla would involve significant travel time with all associated negative consequences (fatigue, work/life balance) for the employees and their families. 68

[76] Regarding the stand down, Mr Smith said that the impact of the pandemic has particularly affected Qube’s business in passenger cruise ships in Sydney, and operations have been suspended since about March 2020. Mr Smith stated that members affected by the cessation of operations were originally stood down in 2020 and paid on the federal government’s JobKeeper program when it came into effect in April 2020. The scheme has now been discontinued. 69

[77] Mr Smith stated that Mr Johnson is a VSE based in Sydney who has purportedly been stood down by Qube since March 2020, and since this time Mr Johnson has not been allocated any work. or told when, if ever, he will work again for Qube. 70

[78] Mr Smith stated that since the stand down notice issued, he has had several discussions with Mr Sousa and Qube’s Human Resources Manager, Mr Coulton. Over the course of these discussions, Qube’s position has not altered, in that it does not believe Mr Johnson’s job is redundant.

[79] Mr Smith stated that during these discussions, he was told that work would likely return to Sydney Harbour for passenger vessels by 23 December 2020, which did not occur, and there is no forecast for a resumption of passenger cruise vessels returning to Sydney Harbour. 71

[80] Mr Smith said that he is aware that on 16 October 2020, Mr Johnson was sent a letter from Qube regarding ‘alternative employment’ via a transfer to Port Kembla, giving Mr Johnson four days to respond. 72

[81] On 19 October 2020, Mr Smith was copied in on email from Mr Donato to Mark Jelbart, Operations Manager, Qube, regarding letters sent from Qube to employees about ‘alternative employment.’ 73

[82] Mr Smith stated that Mr Johnson informed him that he had declined the offer of alternative work at Port Kembla as the offer was not, considering his circumstances, reasonable or acceptable. 74

[83] On 28 October 2020, Mr Smith emailed Mr Sousa and Mr Coulton and raised concerns about Qube employees Hugh Brown and Mr Johnson regarding their offers of transfer to Port Kembla. Mr Sousa replied stating that there were no positions to be made redundant. 75

[84] On 21 December 2020, Mr Smith received an email from Mr Johnson attaching a letter from Qube standing him down without pay. 76

[85] On 5 February 2021, Mr Smith was copied in on an email sent by Mr Donato to Mr Coulton regarding the lack of information about when operations in Sydney Harbour would resume and the status of the redundancy of Mr Johnson. 77

[86] Mr Smith stated that compared with the conditions of employment under the Agreement, employment at Port Kembla would leave Mr Johnson worse off. 78

Submissions

[87] MUA submitted that in accordance with the terms of the Agreement, Mr Johnson continued to be paid his minimum guaranteed salary but continued to accrue a debt to Qube as he was not performing work in consideration for payment of the minimum guaranteed salary. When Mr Johnson informed Qube that he did not wish to continue this arrangement, Qube purported to stand him down under s.524 of the FW Act. 79

[88] It was submitted that Mr Johnson has been stood down since this time, and there is no indication as to when, if ever, he will be offered work at Sydney Harbour. 80

[89] The MUA submitted that Qube has made a number of representations to Mr Johnson and the MUA, that passenger vessel work will resume at Sydney Harbour by particular times, of which none have proven to be correct. As a result, Mr Johnson is in the situation of being permanently stood down. 81

S.739 application

[90] The MUA submitted that resolution of their s.739 dispute application requires the Commission to determine that in accordance with clause 13.3 of the Agreement, Qube is required to offer Mr Johnson a voluntary redundancy, and that his position is otherwise redundant.

[91] It was submitted that clause 48 of the Agreement deals with dispute resolution and confers broad powers on the Commission to resolve disputes arising in the workplace, under the Agreement. The MUA contends that the present dispute is one which arises in the workplace and is also a matter arising under the Agreement given it concerns whether Mr Johnson’s position is redundant and whether the Agreement’s redundancy provisions apply. 82

[92] The MUA stated that Part A of the Agreement contains general employment conditions that appear in a number of enterprise agreements covering Qube’s operations throughout Australia. 83 These conditions include that:

(i) Employees are to be advised in writing of the status of their employment and their primary place of work by way of a letter of appointment.

(ii) Categories of employees called ‘Variable Salary Employees’ (VSE) and ‘Provisional Variable Salary Employees’ (PVSE) are envisaged. VSEs and PVSEs are irregular employees and not to be placed on roster panels and are to be available for irregular allocation.

(iii) Redundancy provisions for full-time permanent employees are applicable to VSEs to the extent of the minimum salary.

(iv) VSEs and PVSEs receive a minimum annual salary, paid fortnightly. Where a VSE or PVSE’s fortnightly earnings are less than the minimum guarantee, the shortfall is deducted from actual earnings in the next pay period where earnings are in excess of the minimum. Where a VSE or PVSE is paid the minimum salary but does not work an equivalent number of hours in a fortnight commensurate with the salary payable to them, they owe Qube the shortfall, which is to be made up from time worked above the minimum number of hours corresponding with the minimum salary in subsequent fortnights;

(v) Clause 13 ‘Economic conditions’ deals with the impacts of economic peaks and troughs of the stevedoring industry. The clause is triggered where there have been at least three consecutive months of hours shortfall, indicating a sustained hours deficit and projected work streams will not address that shortfall.

(vi) Clause 13.3.3 details a structured procedure by which the parties first consult in order to deal with adverse economic conditions. Steps are then detailed providing, amongst other things, for employees to utilise accrued leave balances, for employment positions to be downgraded and, where such mitigative measures have not been effective, for the respondent under Step 4 of 13.3.3 to:

… declare the number of proposed redundancies required based on Economic Conditions Data and the efficacy (or lack thereof) of the mitigation measures in Steps 1 to 3 above…

(vii) A voluntary redundancy process is then set in chain.

(viii) Should expressions of interest for voluntary redundancies be insufficient, compulsory redundancies are to occur. Selection of employees for compulsory redundancy is to be made, in accordance with Step 5, pursuant to the criteria in Schedule 1.

(ix) Steps 1-3 mitigative measures prior to the offering of voluntary redundancies are required to be completed within 30 days, after which voluntary redundancies are to commence (Step 4).

(x) Clause 21 - Redundancy provides that redundancies will only occur in accordance with the steps outlined in clause 13.3.

(xi) Clause 21 applies to VSEs and PVSEs.

(xii) There are a number of exceptions to the requirement to make termination payments (including in lieu of notice) or redundancy payments are detailed in clause 21.2.3. One of these is where Qube makes or obtain an offer of acceptable alternative employment on terms and conditions no less favourable overall than the employee’s existing terms and conditions.

[93] The MUA stated that Part B of the Agreement, prescribes terms and conditions specific to Qube’s operations at Sydney Harbour which include:

(i) An employee’s primary place of work will be Sydney, but they will be required to work at any other location depending on operational and maintenance requirements, with priority being accorded to allocating employees to Sydney as their primary place of work.

(ii) Sydney Harbour Irregular Employees (SHIP Employees) are to work under the terms and conditions applicable at the location of work.

(iii) Employees are to be notified of work by 4PM the day prior to the proposed work day.

(iv) Mr Johnson as a SHIP employees, is ‘specific to operations in Sydney Harbour’.

(v) SHIP Employees have the same VSE and PVSE conditions of employment.

(vi) SHIP Employees are paid a guaranteed fixed salary as per the VSE and PVSE guarantee. 84

[94] The MUA submitted that clause 13.3 Measures of the Agreement requires that a stepped process be followed in negative economic circumstances. The fact that clause 13 Economic conditions is only capable of being invoked in limited and objectively verifiable circumstances (13.2.2) points firmly in favour of it setting out (once invoked) mandatory steps and procedures. If it were otherwise, the restricted and highly regulated triggers for the activation of the clause would not have been included. 85

[95] The MUA noted that clause 13.2.4 determines that ‘the consequent measures will prevail over any other provisions in this Agreement to the extent of any inconsistency’. It was put that this provision gives paramountcy to the measures stipulated by clause 13.2.4 over any other provision of the Agreement. 86 Clause 13.2.4 was also said to use mandatory and obligatory language which requires the confirmation of measures implemented in accordance with the provision.87

[96] It was submitted that the time for following Steps 1-3 has passed, and that Step 4, which requires the offering of voluntary redundancies should now occur. 88

[97] The MUA submitted that Qube triggered clause 13 Economic conditions by the issuing of notices in March 2020, following the onset of the COVID-19 pandemic and by a further formal notification issued to the MUA on 1 April 2020. The graduated steps prescribed by clause 13.3.3 were therefore triggered and by operation of clause 13.3.6, Steps 1-3 had to be completed within 30 days, i.e. no later than 30 April 2020. 89

[98] The MUA contended that once clause 13 is properly invoked in the limited circumstances that must exist (there being no dispute that it was properly invoked by Qube), the steps and processes it prescribes are mandatory. 90

[99] It was submitted that the mitigation measures detailed in Steps 2 and 3 did not mitigate the adverse effects of the cessation of the cruise industry, and therefore Step 4 was triggered, where Qube was to declare a number of proposed redundancies at that point. It was put that Mr Johnson’s job was not required to be done by anyone and consequently his job was required to be made redundant. 91

[100] The MUA conceded that while Mr Johnson was stood down under the former s.789GDC (JobKeeper stand down direction), it may have been permissible for Qube not to apply clause 13.3 of the Agreement as s.789GDC(5) determined that a stand down under s.789GDC had effect despite a ‘designated employment provision’, which was defined by s.789GC to include a provision of a ‘fair work instrument’. 92

[101] The MUA submitted that once Mr Johnson ceased being subject to a JobKeeper stand down direction on 27 September 2020, the provisions of clause 13.3 were required to be complied with, as the power of stand down under s.524 did not and could not operate to excuse Qube from compliance with clause 13.3. The MUA submitted that Qube has failed to comply with the requirements of clause 13.3 in relation to Mr Johnson. 93

[102] It was submitted that clause 13 is directed, as clause 13.1 makes clear in its description of the provision’s intent, to regulating the economic peaks and troughs inherent in the stevedoring industry. Its purpose and object are to manage and regulate how Qube (with the input and involvement of the MUA and employees who are covered by the Agreement) respond to fluctuations in such economic conditions. Contrary to the Qube submission, the MUA state that the clause is not aspirational in nature. 94

[103] Whilst clauses 13.3.1-13.3.2 are facilitative and direct the parties to, in effect, consult and take steps as may be agreed, 95 it was submitted that clause 13.3.3 deals with the steps that ‘are to be followed’ to assist in reducing an ‘Hours Shortfall’, and that this language is mandatory.96

[104] The MUA submitted that ultimately, read as a whole, and in light of its purpose, clause 13.3 is prescriptive of the steps which are to be followed in the event clause 13 Economic conditions is triggered by Qube, and construing clause 13.3 Measures as facultative only, as Qube suggests would be both antithetical to its object and would also render it of little to no operative effect. 97

[105] The MUA further argued that it is improbable that the framers of the Agreement would have intended that clause 13.3 Measures have virtually no real or operative effect, and for the same reasons, Qube’s construction would operate in an unreasonable and capricious way, as it would permit it to have the benefit of provisions of clause 13.3 and deny the correlative benefits it confers on employees. 98

[106] It was contended by the MUA that clause 13.3 Measures does two things:

(1) It sets out measures which may be agreed to be implemented in the event of adverse economic conditions; and

(2) Otherwise details a stepped process for dealing with adverse economic conditions which must be followed. 99

[107] It was put that the 30-day period prescribed by clause 13.3.6 expired either on 30 April 2020 or 27 October 2020, and that as Mr Johnson was not (purportedly) stood down until 21 December 2020, Qube obligations under clause 13.3 were as of 30 April 2020 or 27 October 2020 and were not impacted by the exercise of s.524 of the FW Act 100 and the Commission should, in the circumstances, resolve the dispute by determining that:

(i) Qube was required on and from at least 27 October 2020 to adhere to the steps set out in clause 13.3.3;

(ii) Qube failed to do so;

(iii) Qube should now declare Mr Johnson’s job redundant and permit him to express an interest in voluntary redundancy;

(iv) Qube is not permitted to unreasonably refuse to accept Mr Johnson’s expression of interest in voluntary redundancy. 101

[108] The MUA further submitted that to the extent Qube may purport to rely on s.524 of the FW Act to excuse its compliance with clause 13.3 of the Agreement or otherwise to contend that Mr Johnson’s position is not redundant, s.524 (properly construed in light of its purpose and history) does not permit an employer to indefinitely stand down an employee and otherwise avoid having to pay an employee a redundancy. 102

[109] In the event that the Commission resolves the dispute under clause 48 Dispute Resolution of the Agreement favourably to Mr Johnson, it was submitted that the MUA does not press its application under s.526 of the FW Act. In the event that the Commission determines that Qube is not required to comply with clause.13.3 Measures and offer Mr Johnson a redundancy and/or that Mr Johnson has and continues to be validly stood down such that his position is not redundant and such that he can be lawfully stood down indefinitely, it was submitted that the Commission should deal with the dispute under s.526 having regard, as required by s.526(4), to fairness as between the parties. 103

S.526 application

[110] The MUA submitted that the Commission’s jurisdiction arises under s.526(1) as there is a dispute about the operation of Part 3-5 in relation to Mr Johnson. The ultimate question is, having regard to matters of industrial fairness and equity as required by s.526(4) of the FW Act and in light of all the circumstances, how should the Commission exercise its broad arbitral powers to resolve the dispute? 104

[111] The power of arbitration is conferred on the Commission under s.526(2). In determining to exercise this arbitral power, the Commission is required to take into account, as a mandatory consideration, fairness between the parties concerned, and that fairness involves, “what is just and right between the parties having regard to the relevant statutory framework and the facts and circumstances.” 105

[112] The MUA submitted that the Commission’s power under s.526 is discretionary in nature and it has, by virtue of s.526(4) in particular, wide discretional freedom to resolve the current dispute. It was contended that the Commission exercises arbitral power under s.526 and creates new rights to resolve the dispute, rather than determining existing ones, and the fact the disposition of an application under s.526 may involve reaching conclusions or making decisions about legal rights does not mean the Commission is exercising judicial power. Rather, these are steps along the way to the creation of new rights and obligations in resolution of the dispute. 106

[113] The MUA submitted that the stand down of Mr Johnson is as a matter of reality, indefinite, and contrary to Qube’s arguments, there is no reasonably discernible end date in regard to the stoppage of work. 107

[114] The MUA submitted that s.524 does not evince an intention to exclude or otherwise undercut the provisions of an enterprise agreement, but confers a stand down power which, when properly invoked, allows an employer to stand an employee down without pay.

[115] The MUA’s submission was that there is no ‘conflict’ between a general statutory stand down power and the terms of an enterprise agreement which regulate how employees’ hours and employment are managed in circumstances of particular adverse economic conditions, and no fetter on the power to stand down an employee is imposed by clause 13.3 Measures. Clause 13.3 regulates the allocation of work and determination of redundancies in particular adverse economic conditions, neither of which need necessarily fall within any of the circumstances detailed in s 524(1). 108

[116] It was put that the power of stand down under s.524(1) is required to be exercised reasonably, and it would be manifestly unreasonable for the power under s 524(1), in purported reliance on the circumstance under s 524(1)(c), to be deployed by an employer to maintain the employment relationship for a sustained period and potentially indefinitely in circumstances where it cannot with any degree of certainty be said that an employee will ever perform work again or perform work again in the near future.

[117] It was submitted that Qube has not for over 18 months conducted any business on Sydney Harbour. 109 The MUA submitted that Qube’s entire business at Sydney Harbour has ceased. There has not been a mere ‘stoppage of work’, rather there has been and continues to be an entire shutdown and stoppage of Qube’s business operations in which Mr Johnson is engaged. It was submitted that the power conferred by s.524(1) does not extend to such a situation as it involves, in substance, a situation where Qube no longer requires Mr Johnson’s job to be done by anyone.110

[118] It was contended that it is beyond the ambit of the stand down power conferred on employers, to stand down employees indefinitely and in circumstances where Qube is unable to establish, with any degree of certainty, when work performed by the employee will recommence. 111

[119] The MUA advanced that whilst Mr Johnson is not a named party to the proceedings, he is the relevant party to the dispute, in the sense that the dispute concerns the operation of Part 3-5 of the FW Act in relation to his stand down. Further, it was submitted that contrary to Qube’s submission, resolution of the dispute by determining that Mr Johnson’s position is, in substance, redundant is permissible, as fairness considerations guide the exercise of discretionary power under s.526 and the Commission is able to resolve the dispute by determining that, having regard to industrial fairness, Mr Johnson’s position is redundant. 112

[120] The MUA stated that an important factor in determining how the Commission should exercise its arbitral power under s.526 to resolve the dispute by regulating the parties’ relationship moving forward, is whether Mr Johnson has been and/or continues to be validly stood down under s.524(1) of the FW Act. If he is not validly stood down, it is submitted that this will be a powerful factor militating in favour of granting the relief sought, that is, an arbitral determination that Qube offers him a voluntary redundancy. If he is validly stood down, it is submitted that the industrial fairness of the situation requires that he be offered a voluntary redundancy as his position is, for all intents and purposes, redundant and maintenance of an indefinite stand down is patently unfair. 113

[121] The MUA submitted that s.524(1) confers a power on an employer to stand down an employee ‘during a period in which the employee cannot be usefully employed’, and that the exercise of the power is circumscribed temporally, it is limited to a period. It was contended that the phrase ‘a period’ connotes a definite and finite time. 114

[122] It was also argued that the power conferred by s 524(1) to be exercised is in relation to a particular employee rather than a group or class of employees. 115

[123] With reference to the dissenting reasons of Bromberg J in CEPU v Qantas Airways, 116 the MUA submitted that Bromberg J explained that the power is also conditional on one or other of the causal circumstances specified in s.524(1)(a)-(c) being the reason for the incapacity of the employee to be usefully employed:117

“The period in which an employee may be lawfully stood down is circumscribed by the causal requirement imposed by s 524(1) that the inability of the employer to usefully employ the employee be one or other of the particular circumstances specified by that provision. Thus, it is only when and for as long as the essential fact exists in relation to the particular employee, by reason of one or more of the causes specified in s 524(1), that the employee is stood down in accordance with the authority provided by s 524…” 118

[124] The MUA accepted that the purposes of the power of stand down include to afford financial relief to an employer from the requirement to pay wages to an employee where, through no fault of the employer, the employee cannot usefully perform work and to protect employees from what would otherwise flow from an inevitable termination of their employment by reason of their job not being required to be performed by anyone, however the MUA argued that s.524 is not and cannot have been intended to be open-ended. 119

[125] It was contended that this is conveyed by the need for stand down to be causally the result of one of the circumstances stipulated in s.524(1)(a)-(c) and it is also implicit in the power itself, which is to provide relief on a temporary basis to deal with one of the specified circumstances under s.524(1)(a)-(c). 120

[126] The MUA submitted that the circumstances detailed in s.524(1)(a)-(c) are not ones which are contemplated to be open ended or indefinite. It was submitted that whilst industrial action may be protracted, it is not something that ordinarily continues ad infinitum, and that if a breakdown of machinery occurs, machines are self-evidently capable of being repaired. 121

[127] A ‘stoppage of work’ was said not to be something capable of continuing indefinitely. The noun ‘stoppage’ refers to the act or instance of stopping or the state of being stopped, and to ‘stop’ is to cease or arrest particular action. It was contended that a ‘stoppage of work’ is a cessation or arrest of the activity of work, and that ‘work’ refers to productive or operative activity directed to produce or accomplish something. 122

[128] When read in the context of the states of affairs under s.524(1)(a)-(b), both of which are necessarily temporary and finite, it was submitted that s.524(1)(c) must relate to a stoppage of work that is likewise temporary and finite in nature. It was stated that this construction is supported by the examples provided at [2079] to the Explanatory Memorandum to the Fair Work Bill 2008. 123 relating to a breakdown in production machinery and a flash flood preventing employees from entering the premises.

[129] It was put that the power to stand an employee down under s.524(1)(c) because of a ‘stoppage of work’ does not extend to the indefinite standing down of an employee. The stand down must be temporary and finite. A circumstance where the employer’s business or enterprise in which the employee works has entirely ceased to function and will not recommence operating at some definable or definite point in the future will not be a ‘stoppage of work’ that entails an employee cannot usefully be employed as no identified period of time is involved. 124

[130] It was submitted that to stand down an employee in the hope that an employer’s business will recommence at some unknown future point involves an impermissible use of the power. 125 as it goes well beyond the ambit of the power to stand down an employee indefinitely and as is the present case, avoid having to pay redundancy.126

[131] If the Commission determines that a stand down under s.524 of the FW Act results in Qube not being required to adhere to clause 13.3 of the Agreement, then the MUA submitted that Mr Johnson’s stand down is not authorised under s.524 of the FW Act for the following reasons:

•  First, s.524(1) does not permit an indefinite stand down of an employee as it is contrary to the purposes of the provision. Mr Johnson’s stand down is, in substance, indefinite and is not authorised by s.524(1).

•  Second, Mr Johnson’s stand down has ceased to be (to the extent it ever was) permitted by s.524(1)(c) as it is not a stand down during a period in which Mr Johnson cannot be usefully employed because of a stoppage of work for which Qube cannot reasonably be held responsible.

Mr Johnson’s stand down is not the result of a mere stoppage of work. Qube’s business in Sydney Harbour has, for all intents and purposes, ceased operating. It is unclear when, if ever, it will operate again. 127

[132] The MUA submitted that Mr Johnson’s job as a Sydney Harbour Irregular Employee (SHIP employee) is redundant, the job no longer exists, and industrial fairness requires that Mr Johnson does not continue to be stood down for any longer and denied an entitlement to redundancy. 128

[133] The MUA contended that the Commission should determine that Mr Johnson’s stand down is invalid by determining that:

(i) any further stand down of Mr Johnson will not be authorised by Part 3-5 of the FW Act;

(ii) Mr Johnson’s position is redundant. 129

[134] If, alternatively, the Commission holds that Mr Johnson’s stand down is valid, having regard to industrial fairness, the MUA submitted that the Commission should determine the dispute by determining that Qube should afford Mr Johnson the opportunity to accept a voluntary redundancy. 130

Qube’s Submissions and Evidence

[135] Qube relied on the witness evidence of Dan Coulton, who is employed by Qube Logistics (Aust) Pty Ltd (Qube Logistics) in the role of General Manager Industrial Relations. Mr Coulton was not required for cross-examination. 131

[136] In Mr Coulton’s role, he is responsible for all industrial matters within the ports and landside logistics divisions of Qube Logistics and its related entities, including Qube. Mr Coulton is responsible for:

•  The negotiation of all enterprise agreements;

•  Ensuring the business is compliant with relevant industrial instruments underpinning the conditions of employment within the various operating units of the business;

•  Providing advice to Qube employees about employment and industrial matters; and

•  Liaising with employees and unions about workplace matters, including regarding the response to the COVID-19 pandemic. 132

[137] In relation to the ports division, Mr Coulton reports to Michael Sousa, who is the Director – Ports at Qube. 133

[138] Mr Coulton stated that Qube operates ports and employs stevedores, its stevedoring business provides stevedoring services at over 30 ports throughout Australia, covered by 28 enterprise agreements. 134

[139] Mr Coulton stated that Qube’s operations at Sydney Harbour are distinct from its operations at other ports. Previously Qube provided general stevedoring services at Sydney Harbour but this started to change in around 2017. At Sydney Harbour, Qube provides services solely in relation to the loading and unloading of cargo from passenger cruise ships. 135

[140] Mr Coulton stated that Mr Johnson commenced employment with Qube in about 2004 as a supplementary employee performing general stevedoring work at Glebe Island, and at that time, Qube’s operations at Glebe Island supported the importation of cars, which now occurs at the Port of Port Kembla. Mr Johnson became a GWE employee and then a VSE employee, and during this time, Mr Johnson was also rostered to work shifts at the Port of Port Kembla from time to time. 136

[141] Mr Coulton stated that the composite pay rates in the Agreement, which take into account a combination of work during day, afternoon and night shifts, is a carryover from the days of general stevedoring, given Qube’s current operations at Sydney Harbour currently predominantly involve day work only. 137

[142] In New South Wales, Qube has operations at the following ports:

•  Port of Sydney Harbour;

•  Port of Port Kembla; and

•  Port of Newcastle. 138

[143] The Port of Port Kembla is approximately 95 kilometres from Sydney Harbour and the Port of Newcastle is approximately 167 kilometres from Sydney Harbour. 139

[144] Mr Coulton stated that Qube’s operations in Sydney Harbour have been impacted by the COVID-19 and in particular, since 18 March 2020. The Federal Government has restricted the entry of cruise ships into Australian waters and at Australian ports (with limited exceptions).

[145] Since March 2020, no cruise ships for which Qube has a contract to load and/or unload cargo from has entered Sydney Harbour. 140

[146] Mr Coulton summarised the history of the restrictions imposed by the Federal Health Minister as follows:

1. Restrictions were initially put in place on 18 March 2020 until 15 April 2020;

2. March 2020 the restrictions were extended until 15 June 2020;

3. May 2020 the restrictions were extended until 17 September 2020;

4. September 2020 the restrictions were amended to apply for the duration of the human biosecurity emergency period. Relevantly, the human biosecurity emergency period was:

(i) put in place by the Governor-General with effect from 18 March 2020 until 17 September 2020;

(ii) on 14 May 2020, extended until 17 September 2020;

(iii) on 3 September 2020, extended until 17 December 2020;

(iv) on 10 December 2020, extended until 17 March 2021;

(v) on 2 March 2021, extended until 17 June 2021;

(vi) on 10 June 2021, extended until 17 September 2021;

(vii) on 2 September 2021, extended until 17 December 2021. 141

[147] Mr Coulton stated that at Qube’s Sydney Harbour operations, 19 employees were affected – eight VSEs, six GWEs and five supplementary employees. 142

[148] On 30 March 2020, the Federal Government announced that it was introducing a subsidy which would provide workers with a flat JobKeeper payment of $1,500 per fortnight through their employer. 143

[149] On 1 April 2020, Qube wrote to employees covered by 28 enterprise agreements covering its port related operations throughout Australia providing notification that it was activating the ‘negative circumstances’ provisions in clause 13 Economic conditions of the relevant enterprise agreements. 144

[150] Mr Coulton stated that at the time of sending the correspondence the pandemic was having a significant impact on available working hours across the business. At Sydney Harbour, there were no available working hours for employees because of the restrictions on cruise ships. At other ports, the pandemic was having a negative impact on the amount of goods which were being imported and exported, resulting in a reduction in working hours available for employees. Working hours at the Port of Port Kembla were reduced as a result of the reduction in car importation into Australia. 145

[151] In around April 2020, Mr Coulton and Mr Sousa met with Mr Smith of the MUA to discuss Qube activating the ‘negative circumstances’ provisions at 13.2.1(b) of the Agreement. Mr Coulton stated that during the meeting, they discussed the negative impact the pandemic was having on Qube’s operations including the sudden reduction in work at many of Qube’s ports and the stoppage of work at the Port of Sydney Harbour and that in these circumstances, it was appropriate for Qube to activate the Economic conditions clause under the Agreement as per clause 13.2.1(b) of the Agreement. 146

[152] Mr Coulton stated that following the 1 April 2020, letter that he had sent to employees and the MUA, he was also involved in various meetings with Mr Smith and Mr Donato and various employees at Sydney Harbour. During these discussions, the measures available under clause 13 Economic conditions of the Agreement were discussed. 147

[153] From the beginning of April 2020, Mr Coulton stated that many of the VSE and GWE employees at Sydney Harbour took their accrued annual and long service leave entitlements to reduce the impact of the pandemic. Mr Johnson took two periods of annual leave, one day on 17 April 2020 and five days between 20 and 24 April 2020. 148

[154] Mr Coulton confirmed that in May 2020, Qube commenced making JobKeeper payments to its employees at Sydney Harbour, including Mr Johnson. 149

[155] In or around September 2020, Mr Coulton discussed with Mr Smith and Mr Donato a potential option for VSE and GWE employees at Sydney Harbour to work at the Port of Port Kembla. It was Qube’s position that it would consider this option and consult with the ERC’s at Port Kembla and Sydney Harbour. 150

[156] Mr Coulton stated that following his discussions with the MUA, he had a number of conversations with the MUA and the Port Kembla ERC about potentially offering work to Sydney Harbour employees at the Port of Port Kembla. During these discussions, the ERC at Port Kembla raised concerns about a potential reduction in their hours of work and suggested that the offers of employment at Port Kembla should be for positions at a lower category than the category held by a Sydney Harbour employee. For example, a GWE should be offered employment as a Supplementary employee. 151

[157] On 23 September 2020, Mr Coulton stated that Qube sent a memo to employees across its operations in respect of whom Qube was receiving JobKeeper payments, explaining that the fortnightly JobKeeper payments would be ending on 27 September 2020, but there was to be no change to the existing arrangements. Any reduced hours arrangements put in place in accordance with the economic conditions measures in the relevant enterprise agreement would continue to apply. 152

[158] This meant that for employees working at Sydney Harbour they would remain not working, and for employees at other ports where there was a reduction in available work hours, rather than a stoppage of work, any reduced hours arrangements would continue to apply. 153

[159] Mr Coulton stated that Qube subsequently recommenced paying VSEs and GWEs at the Sydney Harbour their minimum fortnightly guaranteed payment. 154

[160] Mr Coulton stated that from 5 October until 30 November 2020 Mr Johnson commenced a period of leave without pay, 155 prior to being stood down pursuant to s.524 of the FW Act during which Qube paid Mr Johnson his minimum fortnightly guarantee under the Agreement, for which he accrued a debt to Qube in accordance with the Agreement because he did not work any actual hours during the LWOP period.156

[161] Mr Coulton gave evidence that after various discussions between Qube, the MUA and employees at Sydney Harbour and Port Kembla, Qube decided to offer VSE and GWE employees at Sydney Harbour employment at Port Kembla in the same category of employment they held at Sydney Harbour.

[162] The offers of employment were made under the terms of the Port Kembla Agreement. 157

[163] On 16 October 2020, Mr Mark Jelbart, Operations Manager, Qube, sent Mr Johnson a letter offering him employment at Port Kembla, given Qube’s operations at Sydney Harbour had been suspended by the impact of the COVID-19, and in around late October 2020, Mr Johnson informed Qube that he rejected the offer of employment at Port Kembla. 158

[164] Mr Coulton stated that it was his understanding that offering VSE and GWE employees at Sydney Harbour, employment at Port Kembla under the terms of the Port Kembla Agreement was a local arrangement, (Step 2) given it followed consultation with the MUA and employees at Sydney Harbour and Port Kembla about the steps to be taken by Qube in responding to the impact of the pandemic (Step 1). 159

[165] Mr Coulton stated that in late 2020, he attended a meeting with Mr Donato from the MUA and during that meeting, Mr Donato explained the reason why Mr Johnson rejected the offer to work at Port Kembla was due to his family responsibilities. 160

[166] Mr Coulton’s evidence was that in or around October 2020, during a meeting with Mr Smith and Mr Donato, the MUA asked him to offer voluntary redundancy to Mr Johnson and another VSE employee at Sydney Harbour who also did not accept the offer of employment at Port Kembla. Mr Coulton advised that Qube would not offer a voluntary redundancy because:

(a) If he was to offer voluntary redundancy to Mr Johnson and the other employee, he would have to offer this to all the VSE and GWE employees at Sydney Harbour; and

(b) He was not prepared to do this because when cruise ships returned to Sydney Harbour there would be work for the employees to do, particularly Mr Johnson and the other employee as they were the two most senior employees at Sydney Harbour. 161

[167] Mr Coulton further stated that when cruise ships return to Sydney Harbour, the VSEs and GWEs who were employed at Sydney Harbour and had accepted employment at Port Kembla would have the right to return to work at Sydney Harbour. Mr Coulton stated that he understood this to be part of the agreement which Qube had with the MUA. Mr Johnson as a SHIP employee would be at the top of the list for the allocation of work, as per clause 9.6 of Part B of the Agreement. 162

[168] Mr Coulton stated that a similar offer of employment at the Port of Port Kembla was made to the other VSE and GWE employees who were employed to work at Sydney Harbour, and the majority of VSEs and one of the GWEs accepted the offer of employment at Port Kembla. Of the employees who rejected the offer, one has since resigned, and the remaining employees are not working (including Mr Johnson). 163

[169] Mr Coulton stated that Qube did not direct any employees at Sydney Harbour to work at the Port of Port Kembla, and that Qube sought to undertake this process cooperatively and voluntarily. 164

[170] It was Mr Coulton’s evidence that a similar approach was taken with some employees who worked at the Port of Portland in Victoria, where there was a reduction in available work hours and three positions became available at the Port of Melbourne. Three employees who were employed at Portland were offered, and accepted, employment at the Port of Melbourne under the terms of the Qube Ports Pty Ltd Port of Melbourne Enterprise Agreement 2016. A combination of measures, including the taking of accrued annual and long service leave, the reduction in hours of work, the reduction of guarantees and the downgrading of categories of employment, were taken in respect of the remaining 73 employees employed to work at the Port of Portland. 165

[171] On 21 December 2020, Mr Jelbart sent Mr Johnson a letter notifying him that he was stood down under s.524 of the FW Act. Mr Coulton stated that while Qube’s payroll system recorded Mr Johnson’s absence from work from 21 December 2020 until 3 June 2021 as leave without pay, he was stood down for this period. Qube did not authorise Mr Johnson to take a period of leave without pay after it stood him down from work on 21 December 2020. 166

[172] Mr Coulton stated that after the issues which occurred with the Ruby Princess cruise liner in Sydney Harbour in March 2020, information about the return of passenger cruise ships to Sydney Harbour has been scarce. On 29 November 2020, before speaking with Mr Smith about the potential recommencement of operations at Sydney Harbour, he had read an ABC News article which suggested cruise ships could return to Sydney Harbour. This lead Mr Coulton to explain to Mr Smith that it was possible work could return toward the end of December 2020. 167

[173] Mr Coulton’s evidence was that Qube is currently unsure when its operations at Sydney Harbour will recommence, however it continues to hold the contract to provide stevedoring services at the Sydney Harbour and intends on resuming its operations as soon as it is able to. When Qube’s operations at the Sydney Harbour recommence Qube will cease the stand down of Mr Johnson. 168

[174] Mr Coulton stated that in relation to the measures which were taken under the Economics conditions clauses of other enterprise agreements in operations at other Qube ports, these measures have not resulted in any redundancies. Mr Coulton further stated that there have been no redundancies related to stevedoring positions across Qube’s business in over 10 years. 169

[175] Mr Coulton stated that in his time at Qube and Qube Logistics (approximately 14 years), he has never before experienced an event which has caused such a sudden and significant impact on Qube’s operations, and that Qube did not have a standard approach for responding to a situation of this kind. 170

[176] Mr Coulton did not agree that the offer of employment for Mr Johnson at Port Kembla was unacceptable or unreasonable. Mr Coulton stated that:

(a) 12 hour shifts are one of a number of shift options available at Port Kembla. Qube has always been prepared to have a discussion about shift lengths and other arrangements to accommodate Mr Johnson’s personal circumstances, but the MUA or Mr Johnson has never engaged with Qube on the issue; and

(b) Payments for travel arise under the interport transfer clause in clause 26 of Part A of the Agreement, however this clause is not relevant. 171

[177] Mr Coulton stated that of the shifts worked at Port Kembla, 12 hour shifts are one of a number of shift options available. Mr Coulton did not agree that Mr Johnson would be required to work 60 hours a week. Mr Coulton stated that employees at Port Kembla do not work these hours on a week to week basis. 172

[178] Mr Coulton stated that Mr Johnson’s contract and the Agreement provides that employees may be rostered to work; day, afternoon and night shifts. 173

[179] Mr Johnson's employment contract provides that he may be required to work at other locations and when working at other sites, the relevant enterprise agreement which operates at that site will apply. This is said to also be reflected in the Agreement. Mr Coulton also stated that clause 4.1 of Part B of the Agreement provides that employees will be available for work in Sydney Harbour and Port Kembla, but there has not been a need to ask Mr Johnson to work at Port Kembla given that the work at Sydney Harbour has not previously stopped. 174

Submissions

[180] It was submitted by Qube that clause 13 Economic conditions is aimed at enabling Qube to manage the economic peaks and troughs outside their control that affect the provision of general stevedoring. 175

[181] Pursuant to clause 13.1.1, it is intended that the parties will work together to avoid redundancies and promote full-time permanent employment with stable and secure jobs throughout the economic cycle. 176

[182] Qube submitted that once clause 13 Economic conditions is activated in circumstances described as ‘negative circumstances’, where there is an event that will have a significant impact on available hours that will generate an Hours Shortfall, clause 13.3 sets out the measures that can be implemented to address the negative circumstances and mitigate against redundancies.

[183] There are six steps set out in clause 13.3.3, the relevant steps in this case being the first four:

(a) Step 1 provides that Qube will notify affected employees and the MUA national office and the relevant branch. Qube will then consult with and provide relevant information to the ERC and the MUA.

(b) Step 2 provides that employees may elect to utilise various measures including exhausting leave, varying or suspending rosters (where they exist), reducing the quantum of annualised accumulated hours or “any other local arrangement”.

(c) Step 3 sets out further measures available including VSE and GWE employees electing to downgrade their status which has the effect of reducing their guaranteed income and hours.

(d) Step 4 provides that it will be triggered if the mitigation measures in Steps 2 and 3 have not been effective. Step 4 then provides that Qube will declare the number of proposed redundancies required based on ‘the Economics Conditions Data’ (defined at clause 2 Definitions of the Agreement to include earnings, counted hours, all leave balances, workers’ compensation, shift patterns and other relevant information) and the efficacy (or lack thereof) of the mitigation measures in Steps 1 to 3 above. Upon redundancies being declared, then Step 4 provides that expressions of interest will not be unreasonably refused. 177

[184] Steps 1 to 3 must be completed within 30 days, after which Step 4 commences, however nothing prevents the parties from implementing measures contained in an earlier step at any stage of the process to mitigate against the need for redundancies (clause 13.3.5). 178

[185] Qube submitted that clause 21 Redundancy of the Agreement states that “Redundancies will only occur in accordance with the steps outlined in clause 13.3.” It was put that the redundancy arrangements apply in circumstances only where:

(a) Qube has need to reduce the size of all or part of its workforce and has advised the relevant employees and the MUA in accordance with the Agreement;

(b) Qube has made a final declaration of redundancy together with details of the number of surplus people, skills and affected areas and then made this available to its affected employees and the MUA; and

(c) After discussions have been held to determine the availability of alternative employment at other sites and ports to reduce or eliminate the need for redundancies. 179

[186] It was stated that if Qube makes or obtains an offer of acceptable alternative employment on terms and conditions which are no less favourable overall than the employee’s existing terms and conditions with Qube (which may reasonably include another port), then Qube is not liable to make any termination payments including payment in lieu of notice and redundancy pay. 180

[187] Regarding the s.739 application, Qube accepts that the Commission has the jurisdiction to resolve the dispute on the basis that the dispute is about a matter arising ‘in the workplace’. 181

[188] Qube submitted, however, that the MUA’s contention that Qube has breached clause13.3.3 of the Agreement is incorrect for the following reasons:

(a) First, on a proper construction, clause 13 Economic conditions does not create an exclusive and exhaustive mechanism to address the negative impact of a downturn in economic circumstances which may lead to a shortfall in hours to be worked in Qube’s general stevedoring business.

Clause 13.3.3 does not use mandatory language compelling the following of the steps. The use of the passive infinitive “are to be followed” (in contradistinction to the words such as ‘will be’ used elsewhere in the Agreement) indicates that there is a general expectation, in the usual course, that the steps will be followed rather than expressing a positive obligation to do so.

This general expectation is conveyed in each step, however there will be other circumstances which may warrant departure from the usual process. This is reflected in the permissive language used in various steps. Both Steps 2 and 3 provide that particular measures ‘may’ be deployed, and similarly, Step 5 provides that where all other options have failed to address the hours shortfall, then compulsory redundancies across the workforce ‘may’ occur. 182

(b) Second, clause 13.3 must be construed consistently with the intention that the parties. This requires the parties to, among other things, take a co-operative approach in dealing with negative circumstances. Clause 13 does not, exclude other measures being taken to mitigate the impact of negative economic circumstances where appropriate. If there are measures outside clause 13.3 available to minimise redundancies, it would be unlikely that the parties would have intended that such measures could not be implemented to avoid redundancies. 183

(c) Third, clause 13.3 contemplates that there are a number of different measures that can be implemented to address negative circumstances and mitigate against redundancies. The parties may enter into a local arrangement at Step 2 of the process to give effect to these agreements. The implementation of such measures are to be ‘continuously reviewed’ (13.3.4) which implies that the measures are reviewed against the objective of avoiding redundancies, suggesting that the steps are not intended to be slavishly followed or operate rigidly but are intended to be applied with the intention of avoiding redundancies.

Qube state that the MUA advances a restrictive interpretation which mandates that Qube must implement voluntary redundancies after Steps 1 to 3 with no exceptions which has the effect of resulting in, rather than avoiding redundancies. 184

(d) Fourth, even assuming Step 4 has been triggered, it does not follow that Qube must declare redundancies, as redundancies only arise where there are circumstances where Qube “has need to reduce the size of all or part of its workforce” and certain steps have been followed.

These steps include Qube disclosing Economic Conditions Data to the MUA and affected employees sharing objectively ascertainable and quantifiable evidence of the circumstances and making a “final declaration of redundancy together with details of the number of surplus people, skills and affected areas” which will be made available to affected employees and the MUA. Such steps were not taken in this case, indicating that Qube did not form the view that the objective evidence supported redundancies.

This approach is also consistent with authorities that, even if an employee’s position is redundant because it is no longer required to be done or has been abolished, no entitlement to redundancy pay arises unless an employer takes the further step of dismissing the employee on the ground of redundancy, and even assuming that the position is redundant, there is no obligation placed on Qube to take the next step to dismiss an employee.

As Qube has not decided to reduce its workforce, there has not been any redundancies to be declared at Step 4. 185

(e) Fifth, it is said that clause 13 cannot operate to exclude an employer’s right to stand down employees under s.524(1) of the FW Act

Qube’s principal contention is that clause 13 does not prescribe an exclusive and exhaustive mechanism to address negative circumstances. To the extent that a conflict arises with s.524(1) of the FW Act, then Qube contends that clause 13.3 is either invalid or must be construed in a manner to avoid an invalid operation. If there is a conflict between clause 13.3 of the Agreement and an employer’s ability to use s.524(1) of the FW Act, then s.524(1) must prevail.

As a matter of general principle, an enterprise agreement cannot be inconsistent with the FW Act and, to the extent of the inconsistency, it is invalid and void. Section 524(2) of the FW Act addresses the limited circumstances where an employer cannot exercise the right to stand down an employee including where an enterprise agreement contains a stand down provision, and by implication, this indicates that unless an enterprise agreement contains a stand down provision, then an employer’s right to stand down employees under s.524(1) continues to apply. 186

(f) Alternatively, Qube contends that to the extent there is a potential ambiguity in clause 13.3 that it operates to exclude measures besides those listed in clause 13.3, to ensure that clause 13 has a valid operation, the provisions should be read down not to exclude an employer’s right to invoke the stand down provision in s.524(1) of the FW Act.

(g) Given the sole purpose of clause 13.3 of the Agreement is aimed at avoiding redundancies, it would result in an unintended and counter-intuitive outcome if it had the effect of excluding Part 3-5 of the FW Act which has the same objective. 187

[189] With regard to the dispute under s.526 of the FW Act, Qube submitted that the MUA’s contention is based on two propositions:

(a) Section 524(1) of the FW Act does not apply to stoppages of work for an open-ended indefinite period; and

(b) In the present case, the restrictions on cruise ships applies for an open-ended indefinite period or where the business has closed down. 188

[190] It was submitted by Qube that s.524(1) of the FW Act does not specify that the power applies only for a specific period of time. It is enlivened where there is a ‘period’ in which the employee ‘cannot usefully be employed’ because of one of the circumstances set out in paragraphs (a) to (c) of s.524(1).

[191] Qube submitted that by its nature, a period can be indefinite, and sometimes the period for which an employee cannot usefully be employed will not be known because it will not be known when the relevant circumstance in paragraphs (a) to (c) of s.524(1) will cease to exist.

[192] Qube contended that the crucial question is not whether the period of the stand down is definite or indefinite, but whether one of the circumstances specified in (a) to (c) means that an employee “cannot usefully be employed”. For example, for the purposes of s.524(1)(a), employees can take an indefinite period of industrial action in support of making an enterprise agreement or where the duration of breakdown of machinery or equipment is unknown because the parts available to repair the equipment is unavailable. It was put that the fact that the period of the circumstance ceasing is unknown or cannot be reasonably predicted does not mean that s.524(1) cannot be invoked.

[193] It was further submitted that the duration of the stand down is not permanent but is linked directly to the restrictions on cruise ships on Australian waters. The duration of the stand down does not operate indefinitely and is limited to the existence of specific circumstances which has resulted in a ‘stoppage of work for any cause for which the employer cannot reasonably be held responsible.’ 189

[194] Qube submitted that it remains contracted to provide stevedoring services to cruise ships in Sydney Harbour and intends to recommence fulfilling its contractual obligations once the restrictions are lifted. 190

[195] Qube submitted that the Commission must take into account fairness between the parties concerned, and the parties to this dispute are Qube and the MUA (and not Mr Johnson). It was submitted that fairness between the parties must take into account that Qube has consulted and reached agreement with the MUA regarding the successful strategies to avoid redundancies at Sydney Harbour by offering employment at Port Kembla. 191

[196] It was stated that in operations at Qube ports around Australia, the triggering of clause 13 Economic conditions has not resulted in any redundancies. To the extent that Mr Johnson has decided not to take up the opportunity to work at Port Kembla, he has done so voluntarily.

[197] Contrary to the MUA’s contention, Qube submitted that the Commission does not have the power under s.526(2) to arbitrate a dispute about whether Mr Johnson’s position is redundant or make a declaration. It was contended that Qube’s stand down of Mr Johnson under s.524(1) is valid, and once the Commission makes this finding, this is sufficient to resolve the dispute

[198] It was put that the Commission only has power to deal with a dispute about the operation of Part 3-5 of the FW Act, and the subject-matter of redundancy is not a dispute about the operation of Part 3-5 of the FW Act which the Commission is empowered to deal with. 192

Conclusion

[199] Sections 738 and 739 of the FW Act authorise the Commission to arbitrate a dispute in accordance with a term of a dispute settlement procedure of an enterprise agreement. Qube does not contest the Commission’s ability to deal with the MUA’s, s.739 dispute application and the Commission is satisfied that the dispute is properly before it in accordance with the FW Act and clause 48 Dispute resolution of the Agreement.

[200] In dealing with the MUA’s s.739 dispute application the Commission is required to determine the meaning of clause 13 Economic circumstances of the Agreement. This is because the MUA contend that once activated clause 13 Economic circumstances requires that it be followed and applied until the obligations placed on the parties have been exhausted. On the submissions of the MUA, as the mitigation measures set out in Steps 2 and 3 were not effective in mitigating against Mr Johnson’s Hours Shortfall, this required Qube pursuant to Step 4 of clause 13.3.3 to declare Mr Johnson’s position at Sydney Harbour redundant and offer Mr Johnson a voluntary redundancy following his expression of interest. This process was to commence at the expiration of a 30-day period upon the triggering of clause 13.

[201] Qube on the other hand dispute that anything in Step 4 of clause 13.3.3 forces it to declare Mr Johnson’s position at Sydney Harbour redundant, particularly as he has declined an employment opportunity to work at the Port of Port Kembla.

[202] The process of interpreting an enterprise agreement is reasonably well settled having regard to decisions of the Federal Court and this Commission. In short, the Commission is required to ascertain the objective intention of the Agreement’s wording having regard to its language and terms when read as a whole and having regard to its context and purpose.

[203] French J, (as he then was) although dealing with an award stated in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union 193 (City of Wanneroo) that:

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”

[204] The Full Bench in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited¹⁹⁴ expressed the view that although dealing with the construction of an award ‘the same principles are apt to apply to the interpretation of enterprise agreements’ as expressed by French J in the City of Wanneroo as extracted above. 195

[205] In 2017, a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd¹⁹⁶ (Berri) made the following observations in relation to interpreting enterprise agreements including that

“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,197 (Amcor) Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.198 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’.”199

[206] The Full Bench in Berri went on to set out a number of principles relevant to the task of construing an enterprise agreement.

[207] In 2018, the Federal Court in WorkPac Pty Ltd v Skene 200 provided the following summary of the approach to the interpretation of an enterprise agreement:

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”

(Citations omitted)

[208] When arbitrating a dispute pursuant to a dispute settlement procedure in an enterprise agreement, the Commission is not exercising judicial power, but a power of private arbitration.²⁰¹ As a private arbitrator, the Commission is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.²⁰² That involves deciding “all questions both of law and of fact”²⁰³ that arise in the dispute, subject to any limitation on power in the dispute settlement clause and a requirement not to make a decision that is inconsistent with the FW Act, or a Fair Work instrument that applies to the parties. 204

[209] In this matter attention needs to be directed towards ascertaining what obligations arise out of clause 13 and whether the processes undertaken by the parties to date, including the timing of any action has met the identified obligations.

[210] Clause 13 Economic conditions at 13.1 states under the heading Intent that the parties will work together to minimise redundancies and promote full time permanent employment acknowledging that general stevedoring is subject to impacts from economic peaks and troughs and Qube’s ability to provide the minimum guaranteed hours for all employees, may be subject to economic conditions beyond its control.

[211] After setting out the intent of the clause at 13.1, the circumstances that allow the clause to be ‘triggered’ are stated at 13.2 Activation as a result of Negative Circumstances. Those circumstances being:

1. Where there are at least three consecutive months of hours shortfall indicating a sustained hours deficit and the projected work stream will not address the hour shortfall (Hours Shortfall); or

2. In the event of the loss of a major contract or other like event that will have significant impact on available hours that will generate an Hours Shortfall.

[212] It is not in contest that Qube was entitled to trigger the provisions of clause 13, nor was it in dispute that the clause was triggered by the conduct of Qube when on 1 April 2020, it notified its Sydney Harbour employees and the MUA that there had been a significant reduction in volumes due to lower demand and government restrictions resulting in a sustained inability to offer regular work to employees. 205

[213] On 1 April 2020 Qube sent to Mr Smith of the MUA correspondence signed by Mr Coulton 206 advising that ‘after careful consideration’ Qube have decided to activate the negative circumstances provisions of the Agreement at 13.2.1(b). There being a ‘negative circumstances’ event (no passenger cruise ships at Sydney Harbour) that has had a significant impact on available hours, generating an Hours Shortfall.

[214] The correspondence went on to state that the activation of the Negative Circumstances provisions means that Qube will be implementing the Measures in clause 13.3.

[215] Clause 13.3 Measures states at 13.3.1 that there are a number of measures that can be implemented in the first instance to address Negative Circumstances and mitigate against redundancies. There are six listed Steps set out in a table at 13.3.3 which ‘are to be followed’.

[216] Step 1 requires Qube to notify its employees and the MUA and for Qube to consult with the ERC and the MUA. The evidence demonstrated that Qube completed Step 1.

[217] Step 2 sets out measures that employees may elect to utilise which includes exhausting accrued leave entitlements and making an appropriate local arrangement. Some of the listed measures in Step 2 were undertaken by employees.

[218] Step 3 provides that certain employee classifications may be downgraded and employees in other classifications may elect to be downgraded.

[219] Steps 1 to 3 are to be completed within 30 days as per clause 13.3.6 after which Step 4 is to commence.

[220] As the triggering of clause 13 Economic circumstances commenced on 1 April 2020, the MUA stated that the 30-day period expired on 30 April 2020 207 which is the latest date that Step 4 is to commence.

[221] Step 4 states that it will be triggered if mitigation measures in Steps 2 and 3 have not been effective. For the purposes of Mr Johnson’s circumstances Steps 2 and 3 did not resolve his Hours Shortfall.

[222] Under Step 4, Qube are to declare the number of proposed redundancies required based on the Economics Conditions Data (defined in the Agreement as including ‘earnings, counted hours, all leave balances, workers’ compensation and shift patterns and other relevant information’) and any employees (other than Supplementary Employees) may then express an interest to volunteer for redundancy.

[223] There has been no declaration by Qube of proposed redundancies and Mr Johnson has not been offered a voluntary redundancy under Step 4.

[224] In interpretating the meaning and effect of clause 13 Economic circumstances, as stated above, the Commission must begin with a consideration of the ordinary meaning of the relevant words, having regard to the context and purpose of the provision or expression being construed.

[225] Clause 13.3.3 commences with stating that when negative circumstances exist, the Steps set out in the accompanying table in clause 13.3.3 “are to be followed”. These words are not words which provide a choice as to whether or not they will be followed, but direct that the Steps are to be followed. Although noting that Step 2 provides that employees may make an election about certain measures and Step 5 provides Qube with a right, but not an obligation to make compulsory redundancies.

[226] Where the mitigation measures set out in Steps 2 and 3 have not been effective, Step 4 “will be triggered”, again there is nothing discretionary about the words ‘will be triggered”.

[227] The direction set out at clause 13.3.6 that Steps 1 to 3 must be completed within 30 days, after which Step 4 will commence, provides support for the view that the measures in Step 4 are mandatory and not at the discretion of Qube whether to implement Step 4 or not.

[228] The significance of having to comply with the Steps set out in clause 13.3.3 is reinforced at clause 13.3.9 which provides that the implementation of Steps 1 to 4 discharges Qube’s obligations set out in clause 46 Introduction of Change.

[229] When read as a whole clause 13 Economic circumstances sets outs what the parties must do once the clause is triggered. It is not open to Qube once having advised its employees that it has activated the ‘negative circumstances’ provisions in the Agreement and that it ‘will be implementing the measures in clause 13.3’ 208 to then elect not to complete Step 4 on the basis that Step 4 does not mandate the actions listed.

[230] Qube in choosing to trigger the clause has implementing the measures in Step 2 where employees have been able to access accrued leave entitlements and accept work at other Ports e.g. Sydney to Port Kembla and Portland to Melbourne. For some employees there has been a reduction of hours of work, a reduction of guarantees and a downgrading of categories of employment. 209 Offering work at another port was described by Mr Coulton as a ‘local arrangement’ which is an available measure for employees listed in Step 2.210

[231] While it is accepted that an employer is not compelled to make an employee redundant where the employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements, Step 4 of clause 13.3.3 states that it “will be triggered if mitigation measures in Steps 2 and 3 … have not been effective”, and that Qube will declare the number of proposed redundancies required based on the Economic Conditions Data and the efficacy (or lack thereof) of the mitigation measures in Steps 1 to 3.”

[232] This process as set out in Step 4 has not been undertaken by Qube. Step 4 then provides that upon this process being carried out by Qube employees may express an interest to volunteer for redundancy, which will not be unreasonably refused. Mr Johnson has made it known that he wishes to volunteer for redundancy.

[233] Step 5 provides that where all other options have failed to address the Hour’s Shortfall, compulsory redundancies may occur in accordance with the selection criteria in Schedule 1 of the Agreement.

[234] It is clear on the evidence that Mr Johnson’s position at Sydney Harbour has not been required to be performed since March 2020 and this position has not changed. Qube are, through no fault of their own, not in a position to advise Mr Johnson when work at Sydney Harbour will resume.

[235] Since March 2020, no cruise ships for which Qube has a contract to load and/or unload cargo from has entered Sydney Harbour. 211 While Qube remains contracted to provide stevedoring services to cruise ships in Sydney Harbour and intends to recommence fulfilling its contractual obligations once restrictions are lifted212 it has not for over 21 months conducted any business at the Port of Sydney.

[236] Correspondence sent to Mr Johnson dated 16 October 2020 states that “As it currently stands, there is not work at Sydney Harbour and we do not know when that work will resume.” This position has not changed.

[237] Following the failure of Steps 2 and 3 to assist in reducing Mr Johnson’s Hours Shortfall, Step 4 as it states is triggered. As the mitigation measures were unable to address the Hour’s Shortfall for Mr Johnson, there was no sustainable argument at the time that Mr Johnson’s position at Sydney Harbour was other than redundant as there was no work to be performed and it was unknown when this situation would change. There was no evidence that any ‘Economic Conditions Data’ 213 indicates that Mr Johnson’s position at Sydney Harbour is not redundant.

[238] While it is the case that a decision to dismiss an employee based on their position being redundant remains with the employer, in this matter Mr Johnson is entitled to be afforded the terms of the Agreement, which while providing a discretion for Qube at Step 5 of clause 13.3.3 whether to initiate compulsory redundancies, requires at Step 4 that expressions of interest for voluntary redundancy not be unreasonably refused where the mitigation measures in Steps 2 and 3 have not been effective.

[239] It is not in the Commission’s view reasonable to have refused a voluntary redundancy for Mr Johnson based on the reasons Mr Coulton states he expressed to the MUA. 214 The fact that it may have created a precedent for other employees at Sydney Harbour cannot be held against Mr Johnson, where there is an entitlement to volunteer for redundancy. Nor can the expectation that at some unknown time in the future, work will return to Sydney Harbour be a reasonable reason to decline to consider an employee’s application for voluntary redundancy.

[240] Clause 13.2.3 states that where clause 13 Economic conditions is triggered, the consequent measures will prevail over any other provisions in the Agreement to the extent of any inconsistency

[241] At clause 21 Redundancy of the Agreement, clause 21.1.1 states that redundancies will only occur in accordance with the Steps outlined in clause 13.3. Clause 21.2.3 provides that despite any other provision in the Agreement, Qube is not liable to make a redundancy payment where it has made an offer of acceptable alternate employment within the same port, but may reasonably include another port, that is on terms and conditions which are no less favourable overall than an employee’s existing terms and conditions. 215

[242] Qube submit that the ‘local agreement’ reached for employees at Sydney Harbour including Mr Johnson to work at the Port of Port Kembla under the Port Kembla enterprise agreement was an effective mitigation measure and that it was Mr Johnson’s own decision not to avail himself of this measure that results in his Hours Shortfall. 216

[243] Mr Johnson did not accept the offer to work at Port Kembla and raised a number of issues related to his personal circumstances, including the financial impact that he considered did not make the offer acceptable alternative employment or reasonable for him to work at the Port of Port Kembla.

[244] The evidence of Mr Coulton was that Mr Johnson commenced employment with Qube in about 2004 as a supplementary employee performing general stevedoring work at Glebe Island, and that he became a GWE employee and then a VSE employee, and during this time, was also rostered to work shifts at the Port of Port Kembla from time to time. 217 Exactly when this occurred and under what circumstances was not expanded upon, and is difficult to follow based on Mr Coulton’s further evidence that there has not been a need to ask Mr Johnson to work at Port Kembla given that the work at Sydney Harbour has not previously stopped.218

[245] Mr Johnson’s evidence was that during his employment he had never been asked to work permanently at the Port of Port Kembla or advised that a transfer to Port Kembla was a possibility. He was based and worked at Sydney Harbour. 219

[246] While the Agreement and Mr Johnson’s employment contract allow for Mr Johnson to be directed to work at the Port of Port Kembla 220 he has not been directed to do so, but has declined an offer to do so. The evidence of Mr Coulton was that Qube had not directed any employees at Sydney Harbour including Mr Johnson to work at Port Kembla, and that Qube had sought to undertake this process cooperatively and voluntarily.221

[247] As stated above, neither Mr Coulton nor Mr Johnson were required for cross examination. Despite this, the Commission does not find the evidence of Mr Johnson regarding the financial impact of working at the Port of Port Kembla and taking into account Mr Coulton’s written response, sufficiently persuasive to hold that the financial aspects of the offer to work at Port Kembla is other than acceptable alternate employment.

[248] It is however the aspects of Mr Johnson’s personal family circumstances which were not contested by Qube that the Commission accepts creates conditions that are less favourable overall, than his existing conditions. 222

[249] The Port of Port Kembla is approximately 95 kilometres from the Port of Sydney Harbour, 223 although Mr Johnson’s travel to the Port of Port Kembla from his home residence may be less, 224 but he states he would have approximately 3 hours travel time.225

[250] Mr Johnson’s evidence was that a transfer to Port Kembla would lead to a huge disruption to his family life, particularly where his youngest child is about to commence ATAR studies for year 11 and 12 and his wife works full-time. 226 Mr Johnson stated that the rosters he worked at Sydney Harbour enabled him to collect his children from school, transport them to organised sporting events, supervise homework and prepare evening meals.227

[251] Mr Coulton’s evidence was that Qube has always been prepared to have a discussion about shift lengths and other arrangements to accommodate Mr Johnson but that the MUA or Mr Johnson had never engaged in this discussion. 228 Details of what could be achieved from any discussions was not stated and it appears that despite any potential accommodations, the requirement to travel to the Port of Port Kembla would impact on Mr Johnson’s responsibilities in regard to his children.

[252] The Commission is satisfied that on the evidence before it, the offer to work at the Port of Port Kembla in respect of Mr Johnson is not an acceptable alternate offer of employment in accordance with clause 21.2.3 (a) of the Agreement.

[253] In light of the above findings it is then necessary to consider the events that occurred after the completion of Steps 2 and 3 of clause 13.3.3.

[254] As stated above clause 13 Economic circumstances was triggered on 1 April 2020 with the written advice from Mr Coulton that Qube was activating the Negative Circumstances provisions in clause 13.2.1(b) of the Agreement. 229 To ensure that Steps 1 to 3 were completed within 30 days, upon which Step 4 is to commence, Steps 1 to 3 would need to have been completed by 1 May 2020.

[255] However, Mr Johnson was subsequently advised of Qube’s intention to make a JobKeeper enabling direction to not work on any of the days that he would normally work. The direction was to take effect from 4 May 2020 and remain in place until 28 September 2020. 230

[256] The Commission accepts the written submissions of the MUA that the former JobKeeper enabling stand down provisions of the FW Act (now repealed) are likely to have allowed the terms of clause 13 of the Agreement to be avoided while they were in operation. This is because s.789GDC(5) provided that the provisions have effect despite a ‘designated employment provision’ which was defined at s.789GC to included ‘a fair work instrument’.

[257] Mr Johnson was advised on 22 September 2020 by Qube that the JobKeeper enabling stand down direction was to cease on 27 September 2020 as Qube were no longer eligible to participate in the scheme, 231 On this basis and from this date, no relief from complying with Step 4 of clause 13.3.3 was available to Qube.

[258] Mr Johnson was subsequently stood down without pay pursuant to the provisions of s.524 of the FW Act on 21 December 2020 when he received written notice from Qube that it had no useful work for him to perform as a result of the ongoing stoppage of work that it could not reasonably be held responsible. 232

[259] In the period between the cessation of the JobKeeper enabling stand down direction, being the 27 September 2020, and the stand down notice under s.524 of the FW Act issue on 21 December 2020, the provisions of Step 4 of clause 13.3.3 were in operation but were not acted upon by Qube. As held above, Step 4 mandates that Qube take certain actions where the mitigation measures in Steps 2 and 3 have not been effective. Such action should have been taken at least in the period immediately following cessation of the JobKeeper enabling stand down direction and well before the standing down of Mr Johnson under s.524 of the FW Act nearly three months later on 21 December 2020.

[260] In arriving at this conclusion there is then no requirement to consider the MUA’s s.526 application, 233 which is in essence to determine whether a stand down under s.524 of the FW Act in the particular circumstances of Mr Johnson can remain in place without any discernible end date.234

Determination

[261] In resolution of the dispute and based on the above conclusions the following arbitral determination is made:

1. In accordance with clause 13.3.3 of the Agreement, Qube was required to action Step 4 between the period 30 April 2020 and 21 December 2021 excluding the period when Mr Johnson was subject to a JobKeeper enabling stand down direction.

2. During this period Qube failed to do comply with Step 4

3. Qube are to declare Mr Johnson’s position at the Port of Sydney Harbour redundant and offer him a voluntary redundancy.

DEPUTY PRESIDENT

Appearances:

L Saunders of Counsel and W Carr - MUA National Legal Director - on behalf of the Construction, Forestry, Maritime, Mining and Energy Union

Mr Seck of Counsel and J Fox Solicitor MinterEllison – on behalf of Qube Ports Pty Ltd T/A Qube Ports & Bulk

Hearing details:

Conducted by Microsoft Teams

2021

December 15

Final submissions:

December 17

Qube’s response to the MUA’s ‘Aide Memoire’

Printed by authority of the Commonwealth Government Printer

<PR737566>

 1   F13 of 2 July 2021 names two employees, Mr Stephen Johnson and Mr Hugh Brown, however the question for arbitration and submissions only name Mr Johnson

 2   MUA submissions of 4 November 2021 at [6]

 3   Clause 2 Definitions

 4   MUA submissions of 4 November 2021 at [25]

 5   C2020/8420

 6   MUA submissions of 4 November 2021 at [7-8]

 7   Qube submissions of 2 December 2021 at [3-4]

 8   Ibid at [7-8]

 9   Press release of 10 December 2021

 10   Agreement clause 2 Definitions and clause 9.5. Qube submissions of 2 December 2021 at [9]

 11   Statement of S. Johnson of 4 November 2021 at [8]

 12   MUA submissions of 4 November 2021 at [3]

 13   Statement of D Coulton of 2 December 2021 at Attachment DC 2, Exhibit R1

 14   Agreement at cl.13

 15   Qube submissions of 2 December 2021 at [11]

 16   Ibid at [13]

 17   Statement of S. Johnson of 4 November 2021 at Attachment SJ3, Exhibit A2

 18   Statement of D. Coulton of 2 December 2021 at [25], Exhibit R1

 19   Qube submissions of 2 December 2021 at [15]

 20   Ibid at [16-17]

 21   Ibid at [19]

 22   Ibid at [20]

 23   Ibid at [21]

 24   Ibid at [22]

 25   Ibid at [23]

 26   Statement of S. Johnson of 4 November 2021 at [1-3]

 27   Ibid at [4]

 28   Ibid at [5-7]

 29   Ibid at [8]

 30   Ibid at [9]

 31   Ibid at [10]

 32   Ibid at [11-12]

 33   Ibid at [13]

 34   Ibid at [14-15]

 35   Ibid at [25-26]

 36   Ibid at [16-18]

 37   Ibid at [19]

 38   Ibid at [20]

 39   Ibid at [21]

 40   Ibid at [22]

 41   Ibid at [23]

 42   Ibid at [24]

 43   Ibid at [27]

 44   Ibid at [28-29]

 45   Ibid at [30]

 46   Ibid at [31]

 47   Ibid at [32]

 48   Ibid at [33-34]

 49   Statement of W. Smith of 4 November 2021 at [1]

 50   Ibid at [5]

 51   Ibid at [4]

 52   Ibid at [6]

 53   Statement of D. Coulton of 2 December 2021 at [52]

 54   Statement of W. Smith of 4 November 2021 at [7-8]

 55   Ibid at [9]

 56   Ibid at [10]

 57   Ibid at [13]

 58   Ibid at [14]

 59   Ibid at [15]

 60   Ibid at [16]; WS2

 61   Ibid at [17]; WS3

 62   See clause 2 Definitions of the Agreement

 63   Statement of W. Smith of 4 November at [18]

 64   Ibid at [19]

 65   Ibid at [20]; WS4

 66   Ibid at [21]

 67   Ibid

 68   Ibid at [22]

 69   Ibid at [23-24]

 70   Ibid at [26]

 71   Ibid at [27-28]

 72   Ibid at [29]

 73   Ibid at [30]

 74   Ibid at [31]

 75   Ibid at [32]; WS6

 76   Ibid at [33]; WS7

 77   Ibid at [34]; WS8

 78   Ibid at [36]

 79   MUA submissions of 4 November 2021 at [3]

 80   Ibid

 81   Ibid at [4]

 82   Ibid at [16-17]

 83   Ibid at [12]

 84   Ibid at [15]

 85   MUA reply submissions of 10 December 2021 at [8]

 86   Ibid at [9]

 87   Ibid at [10]

 88   MUA submissions of 4 November 2021 at [23]

 89   Ibid at [46]

 90   MUA reply submissions of 10 December 2021 at [5] and [8]

 91   MUA submissions of 4 November 2021 at [46]

 92   Ibid at [49]

 93   Ibid at [47]

 94   MUA reply submissions of 10 December 2021 at [7]

 95   Ibid at [12]

 96   Ibid at [13]

 97   Ibid at [19]

 98   Ibid at [19]

 99   Ibid at [11]

 100   Ibid at [22]

 101   MUA submissions of 4 November 2021 at [50]

 102   Ibid at [24]

 103   Ibid at [25]

 104   Ibid at [8]

 105   Ibid at [26-27]; Ball v Thomas Foods International Murray Bridge Pty Ltd [2018] FWC 2483 at [92]

 106   MUA submissions of 4 November 2021 at [28]

 107   MUA reply submissions of 10 December 2021 at [26] and [28]

 108   Ibid at [23]

 109   Ibid at [29]

 110   MUA submissions of 4 November 2021 at [7]

 111   Ibid

 112   MUA reply submissions of 10 December 2021 at [30-31]

 113   MUA submissions of 4 November 2021 at [9]

 114   Ibid at [33]

 115   Ibid at [34]

 116   [2020] FCAFC 205 at [116], [118] and [123]

 117   MUA submissions of 4 November 2021 at [35]

 118   [2020] FCAFC 205 at [118]

 119   MUA submissions of 4 November 2021 at [37-38]

 120   Ibid at [38]

 121   Ibid at [39]

 122   Ibid

 123   Ibid; Explanatory Memorandum to the Fair Work Bill 2008 (Cth) at [2079]

 124   Ibid at [43]

 125   Ibid at [44]; R v Burgess (1936) 55 CLR 608

 126   MUA submissions of 4 November 2021 at [44-45]

 127   Ibid at [51-53]

 128   Ibid at [54-56]

 129   Ibid at [57]

 130   Ibid at [58]

 131   Statement of D. Coulton of 2 December 2021 at [1]

 132   Ibid at [2-3]

 133   Ibid at [5]

 134   Ibid at [7-8]

 135   Ibid at [9]

 136   Ibid at [59]

 137   Ibid at [11]

 138   Ibid at [12]

 139   Ibid at [13]

 140   Ibid at [14-15]

 141   Ibid at [16]; The Commission notes that on 10 December 2021, the human biosecurity emergency period under the Biosecurity Act 2015 was extended by the Health Minister for a further two months. See: https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/human-biosecurity-period-extended

 142   Statement of D. Coulton of 2 December 2021 at [18]

 143   Ibid at [19]

 144   Ibid at [20]

 145   Ibid at [21]

 146   Ibid at [22]

 147   Ibid at [23]

 148   Ibid at [24]

 149   Ibid at [25]

 150   Ibid at [26]

 151   Ibid at [27]

 152   Ibid at [28-29]; DC3

 153   Ibid

 154   Ibid at [30]

 155   Which he requested and Qube approved prior to Qube standing him down under s.524 of the FW Act

 156   Ibid at [31]

 157   Ibid at [32]; DC4

 158   Ibid at [34-35]

 159   Ibid at [33]

 160   Ibid at [36]

 161   Ibid at [37]

 162   Ibid at [38]

 163   Ibid at [39]

 164   Ibid at [40]

 165   Ibid at [41]

 166   Ibid at [42-43]; DC6

 167   Ibid at [51]; DC7

 168   Ibid at [44-45]

 169   Ibid at [46-47]

 170   Ibid at [48]

 171   Ibid at [56-58] [61]

 172   Ibid at [60]

 173   Ibid at [62]

 174   Ibid at [63]

 175   Qube submissions of 2 December 2021 at [25]

 176   Ibid

 177   Ibid at [26-27]

 178   Ibid at [28]

 179   Ibid at [29]

 180   Ibid at [30]

 181   Ibid at [32]

 182   Ibid at [35]

 183   Ibid at [36]

 184   Ibid at [37-39]

 185   Ibid at [41-43]; Adcock v Blackmores Ltd [2016] FCA 893 at [39] and [54]; Bampton v Viterra Ltd [2015] SASCFC 87 at [45-51]; Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224 at [23]

 186   Ibid at [44-46]

 187   Ibid at [49]

 188   Ibid at [52]

 189   Ibid at [56] and [58]

 190   Ibid at [59]

 191   Ibid at [60]

 192   Ibid at [62-63]

 193   [2006] FCA 813 at [53]

¹⁹⁴ [2014] FWCFB 7447

 195   [2014] FWCFB 7447 at [21]

196 [2017] FWCFB 3005

197 (2005) 222 CLR 241

198 Ibid at [2]

199 Ibid at [67]

 200   [2018] FCAFC 131

²⁰¹ Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [38]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]

202 CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]

203 AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36]

 204   S.739(5)

 205   Statement of W. Smith of 4 November at WS4

 206   Statement of D. Coulton of 2 December 2021 at attachment DC2

 207   It is arguable that day one of the ‘within 30 days’ period commenced on 2 April 2020, making 1 May 2020 the 30 day expiration date

 208   Correspondence of 1 April 2020

 209   Statement of D. Coulton of 2 December 2021 at [41]

 210   Ibid at [33]

 211   Ibid at [14-15]

 212   Ibid at [59]

 213   No data was provided to the Commission. PN399-402

 214   Statement of D. Coulton of 2 December 2021 at [37]

 215   Qube submissions of 2 December 2021 at [30]; MUA submissions of 4 November 2021 at [13(v)]

 216   Ibid at [40]

 217   Ibid at [59]

 218   Ibid at [63]

 219   Statement of S. Johnson of 4 November 2021 at [27]

 220   Statement of D. Coulton of 2 December 2021 at [54] and [63]

 221   Ibid at [40] and PN371

 222   PN371

 223   Ibid at [12]

 224   Mr Johnson’s witness statement reflects a residential address in Maroubra NSW, and at [19]

 225   Statement of S. Johnson of 4 November 2021 at [19]

 226   Ibid at [25-26]

 227   Ibid at [24]

 228   Statement of D. Coulton of 2 December 2021 at [60]

 229   Ibid at [20]

 230   Statement of S. Johnson of 4 November 2021 at Attachment SJ3

 231   Ibid at Attachment SJ4.

 232   Ibid at Attachment SJ7

 233   MUA submissions of 4 November 2020 at [25] state that upon a favourable s.739 determination, the s.526 application is not pressed.

 234   Ibid at [30]