[2014] FWCFB 657

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604 - Appeal of decisions

Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Limited
(C2014/2578)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER ROBERTS

SYDNEY, 31 JANUARY 2014

Appeal against decision [2013] FWC 9547 of Commissioner Cambridge at Sydney on 19 December 2013 in matter number C2013/7531.

Background

[1] The Maritime Union of Australia (MUA) seeks permission to appeal and appeals a decision (Decision) 1 and order (Order)2 of Commissioner Cambridge made on 19 December 2013. In the Decision, the Commissioner determined to grant an application made by Patrick Stevedores Holdings Pty Limited (Patrick) for an order under s.418 of the Fair Work Act 2009 (the Act) directed at the cessation of the engagement in and organisation of industrial action at Patrick’s terminal at the Port of Fremantle.

[2] Patrick’s application for a s.418 order was lodged on 4 December 2013. The application was initially the subject of a hearing before the Commissioner on 5 December 2013. The Commissioner determined that he was unable to deal with the matter within two days, and consequently granted an interim order that day in accordance with s.420(2) of the Act.

[3] A full hearing, in which Patrick presented its evidentiary case, occurred on 19 December 2013. The MUA, apart from the tender of a small number of documents, did not call any evidence. The Commissioner delivered an ex tempore decision at the conclusion of the hearing on 19 December 2013, and later that day published his decision. The Commissioner’s reasoning and conclusions, which were briefly stated, were as follows:

[4] The Order, in substance, required employees of Patrick who were members of the MUA and employed at its Fremantle Terminal to stop engaging in or threatening to engage in industrial action and not to continue, recommence or organise any industrial action during the period of operation of the Order, and also required the MUA not to organise any industrial action at the Fremantle Terminal. The period of operation of the Order was from 19 December 2013 until 1 May 2014 unless earlier revoked or varied by the Commission. The terms of the Order were consistent with the order made by a Full Bench of the Commission in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd. 3

The MUA’s grounds of appeal and submissions

[5] The grounds of appeal (as stated in the MUA’s amended appeal notice) were as follows:

[6] In its submissions, the MUA focused on two propositions. The first proposition, based on appeal ground 1, was that the Commissioner had failed to give adequate reasons in the Decision, and/or failed to consider the MUA’s submissions as to why no order should be made. In respect of a lack of reasons, the Commissioner had, the MUA submitted, made no finding that his conclusion concerning the existence of industrial action was based on a drawing of an inference, nor to the extent that he had drawn such an inference was an unspecified allusion to the “industrial relations history” sufficient to found the drawing of such an inference. Further, the Decision failed to give any consideration to five significant and central submissions made by the MUA before the Commissioner:

[7] The MUA referred to two decisions in support of the proposition that a failure to consider submissions that were significant and central to a party’s case constituted jurisdictional error. In Linfox Australia Pty Ltd v Fair Work Commission 4, a Federal Court Full Court decision (Dowsett, Flick and Griffiths JJ), the Court said:

[8] In Soliman v University of Technology, Sydney 5 (referred to in the above passage) the Full Court of the Federal Court (Marshall, North and Flick JJ) said:

[9] The MUA’s second proposition, which essentially took up appeal grounds 2, 3 and 4, was that in any event the evidence was incapable of supporting the inference or conclusion that industrial action was occurring and that it was being organised by the MUA. In contrast to the Port Botany case, where it had been demonstrated that there had been a reduction in average productivity, the evidence before the Commissioner demonstrated that average productivity had actually increased during the period of alleged industrial action, which, the MUA submitted, provided a weak basis for drawing an inference that there was any “covert” industrial action occurring. There was no evidence identifying how work was being performed in a different manner than usual to produce an adverse productivity outcome, and the increased average productivity statistics prevented the drawing of any inference that employees were performing the work more slowly. Any effects on productivity, the MUA submitted, may have been caused by the change in practice relating to MO32, the requirement that ITVs drive around the stacks and more slowly, and congestion in the pre-Christmas period. While, the MUA submitted, it was true that there had been a productivity cap in the past, there was no evidence of it having been in the nature identified in the Decision, namely “a limit to the number of container lifts by a crane gang in a shift to a maximum of roughly 200”. The number 200 was arbitrarily selected by Patrick, and the statistical evidence belied the existence of a cap at that level since they showed some shifts with over 200 lifts. There was no history of a prior s.418 order having been at the Fremantle Terminal on the basis of productivity restrictions, unlike the Port Botany case.

[10] The MUA submitted that permission to appeal should be granted because the Commissioner’s failure to consider central and significant submissions made by the MUA constituted jurisdictional error, the Decision was attended with sufficient doubt to warrant its reconsideration, and the Decision manifested an injustice which required correction. The MUA sought that the Decision and Order be quashed.

The statutory scheme

[11] Section 418 of the Act is part of the statutory scheme in Part 3-3 concerning industrial action. Under Division 2 of Part 3-3 requirements are established whereby employees and employers may take “protected” industrial action, being industrial action which under s.415 is immune from any action under any law in force in a State or Territory (subject to certain exceptions concerning personal injury, destruction, damage, taking, keeping or use of property, and defamation). Industrial action which is not taken in accordance with the requirements of Division 2 is not “protected” in the sense that the s.415 immunity does not apply to it, but additionally there are a range of provisions in Part 3-3 which serve to prohibit, penalise and/or prevent the taking of such industrial action. Firstly, s.417(1) prohibits outright the engagement in or organisation of industrial action during the period in which an enterprise agreement or a workplace determination has come into effect until its nominal expiry date has past. Section 417(1) is a civil remedy provision, so that any contravention of it may lead to the`` imposition of a pecuniary penalty by a relevant court as well as other orders as may be considered necessary to stop or remedy the effect of such a contravention.

[12] Secondly, under s.418 the Commission is obliged in specified circumstances to make orders concerning industrial action which is not protected. Section 418 provides:

[13] Section 418 operates together with s.420, which relevantly requires that an application for an order under s.418 must as far as practicable be determined within two days of the application being made; if the application is unable to be determined in that period, the Commission is required to make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be) unless the Commission is satisfied that it would be contrary to the public interest to do so. A Full Bench in McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd 6 characterised the broad effect of these provisions as follows:

[14] Thirdly, s.419, which is expressed in similar terms to s.418, obliges the Commission to make orders in respect of industrial action taken by non-national system employees and employers (which cannot be protected under Division 2 of Part 3-3) where that industrial action “will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation”. Section 420 operates in respect of s.419 as well as s.418.

[15] Finally, sections 474 and 475 respectively operate to prohibit employers from paying employees, and employees from accepting or seeking payment from employers, in respect of periods in which the employees have engaged in industrial action that is not protected. It is sufficient for present purposes to set out s.474:

[16] Taken as a whole, the scheme of provisions just described demonstrates that the Act takes a rigorous and comprehensive approach to non-protected industrial action which is both prophylactic and punitive in nature. The legislature’s clear intention was that such industrial action should not occur, and that if it does occur it should promptly be stopped.

History of “the Cap”

[17] Because of the degree of concision in the reasons contained in the Decision, it is necessary for us to set out what the evidence before the Commissioner demonstrated concerning the history of productivity restrictions at Patrick, the dispute at the Fremantle Terminal which arose immediately before the period of the alleged industrial action, and the statistics concerning productivity at the Fremantle Terminal during the period of the alleged industrial action. The evidence as to these matters may be supplemented by relevant material from the Commission’s public records.

[18] Uncontested evidence received by the Commissioner demonstrated that there was a history of employees of Patrick at its Port Botany and Fremantle terminals imposing caps upon the number of container movements per shift (the Caps). That history was principally set out in the statement of Michael O’Leary dated 5 December 2013 7, and in documents annexed to that statement. Mr O’Leary is the General Manager - Industrial Relations for Patrick. Mr O’Leary has worked in industrial relations in the Australian maritime industry for many decades, including a period of approximately ten years in which he worked as a senior official for the MUA. The history which we summarise below is derived from Mr O’Leary’s evidence except where we indicate otherwise.

[19] Patrick, its employees at its Port Botany, Fremantle, Fisherman Islands and East Swanston Dock terminals, and the MUA, are currently bound by an enterprise agreement in operation under the Act, the Patrick Terminals Enterprise Agreement 2012 (the Agreement). The Agreement was negotiated between Patrick and the MUA in 2011/2012. A major issue for Patrick in those negotiations was the removal of the Caps which its employees and the MUA had imposed at the Port Botany and Fremantle terminals. In the case of the Port Botany terminal, the productivity cap had been in place since approximately 2006. In the respect of Fremantle, the evidence did not disclose how long the Cap had been in place, or at what figure container movements were capped. At the hearing of the appeal, counsel for Patrick in answer to an inquiry on that score said on instructions that the Cap at Fremantle had been 200 container movements per shift. Counsel for the MUA, having likewise taken instructions, declined either to confirm or contest that number, and simply submitted that the matter should have been dealt with by evidence.

[20] In early July 2011, Mr Paddy Crumlin, the MUA’s National Secretary, and Mr John Mullen, the Chief Executive Officer of Patrick, entered into direct discussions in order to attempt to advance the negotiations. Between them they reached an agreement that the Caps at Port Botany and Fremantle should be lifted. That agreement was recorded in an email sent by Mr Mullen to Mr Crumlin which identified the items about which they had reached agreement. Item 7 read as follows:

[21] In October 2011, the discussions between Mr Crumlin and Mr Mullen extended to exploration of the Caps being removed in exchange for an immediate 5% increase in pay as “back pay”. In the light of those discussions, Mr O’Leary on 20 October 2011 sent an email to Mr Mick Doleman, the Deputy National Secretary of the MUA, which included the following:

[22] On 28 October 2011, Mr Doleman sent Mr O’Leary a document attaching a list of the matters which the MUA considered to have been agreed. This included the following item:

[23] On 2 November 2011, Mr Doleman sent a further email to Mr O’Leary confirming that an in-principle agreement had been reached to permit the Agreement to be drafted on the basis, among other things, of the list of agreed items which Mr Doleman had attached to his 28 October 2011 email. On the same day, Mr Paul McAleer, the MUA’s Sydney Branch Secretary, rang Mr O’Leary to request a meeting with the Port Botany employees to discuss the lifting of the Cap there. The following day (3 November 2011), Mr O’Leary sent Mr Doleman an email which stated, among other things, the following:

[24] The attached document identified items which had been agreed, and included the following:

[25] On 4 November 2011, Mr McAleer advised Mr O’Leary that employees at Port Botany had voted to lift the Cap. Data produced by the Port Botany Terminal Manager, Mr Ben Wicks, two days later confirmed that the Cap had been lifted at Port Botany. Mr O’Leary was also provided with a copy of an MUA leaflet to its members, prepared by Mr Adrian Evans from the MUA’s Fremantle Branch, which summarised the outcome of the negotiations for the Agreement. The document was entitled “Enterprise Agreement 2010 - outcomes 12 October 2011”. It began with the following statement:

[26] The document then listed 75 agreed items, and finished with the same commitment (under the heading “Productivity”) concerning removal of the Caps that had been contained in the documents attached to the 28 October and 3 November emails and which we have set out above.

[27] On 9 November and 11 November 2011, Patrick and the MUA respectively issued public announcements that that an in-principle agreement had been reached as to the Agreement. On 15 December 2011, Patrick paid a 5% wage increase to its employees at the four terminals, back-dated to the expiry date of the previous enterprise agreement (22 October 2010).

[28] Approximately six weeks later the Cap was re-imposed at Port Botany following a disagreement concerning the handling of potential redundancies at Port Kembla, as a consequence of loss of work from Patrick’s client Bluescope. After having received a report that productivity at Port Botany had decreased and that the Cap appeared to be back in place, Mr O’Leary on 12 February 2012 sent Mr Doleman an email about this which included data showing that productivity, measured by average shift crane rates, had reverted to the levels which existed prior to the lifting of the Cap.

[29] On 20 February 2012 Mr Doleman telephoned Mr O’Leary and advised him, among other things, that he had instructed the MUA’s Sydney Branch officials Mr McAleer and Mr Paul Keating to address the employees and have the productivity levels increase back up to “non-Cap levels”. Mr O’Leary sent Mr Doleman an email the following day seeking confirmation of their telephone discussion. Item 4 in the email referred to the MUA removing “any further restrictions on Productivity that had been in place for a number of weeks”, and then articulated the following mild remonstrance:

[30] Mr Doleman was apparently unsuccessful in his promised endeavour to have the Cap lifted because on or about 12 March 2012 Patrick found it necessary to apply to Fair Work Australia (as the Commission was then entitled) for an order under s.418 to stop non-protected industrial action in the form of the Cap. Patrick’s application was the subject of a hearing before the Commission (Vice President Watson) on 13 and 14 March 2012. The transcript of the hearing on 13 March 2012 discloses that senior counsel who appeared for Patrick outlined his case in the following way 14:

[31] At the continuation of the hearing on 14 March 2012, Patrick presented an evidentiary case that was reliant both on statistical analysis of productivity performance and direct observation of working practices to support its contention that the Cap had been reinstated. The MUA denied organising any industrial action and submitted that Patrick had not established on the evidence that industrial action was taking place, but did not itself call any evidence.

[32] We note that during the closing submissions, the following exchange occurred between the Commission and counsel for Patrick 15:

[33] From that submission, it appears that Patrick had not had regard to its obligations under s.474 of the Act.

[34] At the completion of the hearing, the Commission issued an ex tempore decision the substance of which was as follows 16:

[35] There is no evidence that the order issued by the Commission on 14 March 2012 17 was not complied with.

[36] At about the same time, Patrick and the MUA appear to have resolved their outstanding differences concerning the finalisation of the Agreement with the assistance of the Commission. 18 The Agreement was approved in a vote of Patrick’s employees at the four terminals on 22 May 2012, and was approved by the Commission (Sams DP) on 15 June 2012.19 Remarkably, as we were informed by counsel for Patrick at the hearing of this appeal, the Agreement as approved did not contain any provisions giving effect to the MUA’s undertaking to ensure that the Caps at Port Botany and Fremantle were permanently removed, notwithstanding the significance of that undertaking to Patrick in deciding to enter into the Agreement. No explanation for this is apparent in any of the evidence or submissions before us. The Agreement did however provide (in Schedule 5) for an “at-risk” additional superannuation payment of 0.75% per year, depending on attainment of defined productivity and vessel servicing measures. The productivity measure was the annual average “gross crane lifts per worked crane shift, adjusted to account for specific allowable delays”, and Schedule 5 of the Agreement identified both national and terminal-specific target numbers in that respect.

[37] In April 2013, a new dispute between Patrick and the MUA arose from Patrick’s announcement of its intention to automate various activities at the Port Botany terminal. This led to a re-imposition of the Cap at Port Botany, as well as other forms of industrial action affecting productivity. On 30 May 2013, Patrick made another application to the Commission for an order under s.418 to stop the industrial action. The application could not be determined within the two day period referred to in s.420(1); accordingly on 31 May the Commission (Vice President Watson) made an interim order in accordance with s.420(2), and the application was heard on 19 and 26 June. The Commission issued its decision on 4 July 2013. 20 In that decision, the Commission made the following findings concerning industrial action being taken by way of re-imposition of the Cap:

[38] The Commission went on to conclude or infer that the industrial action he had found was occurring was being organised by the MUA through its delegates and/or officials. An order was issued under s.418 21 with a period of operation of six months.

[39] The MUA appealed the Commission’s decision and order. That appeal was unsuccessful save as to a jurisdictional challenge to certain terms of the order. In its decision on the appeal 22, the Full Bench (Hatcher VP, Booth DP, Bull C) rejected the MUA’s submissions that the evidence did not support a finding that industrial action was happening, stating:

[40] In respect of the finding that the MUA had organised the industrial action, the Full Bench said:

The dispute at Fremantle

[41] Unchallenged evidence before the Commissioner demonstrated that a dispute had arisen between Patrick and the MUA at the Fremantle Terminal immediately before the time at which Patrick alleged that the Cap had been re-imposed there. That evidence was largely contained in a witness statement made by Mr Bruce Guy, the Operations Manager at the Fremantle Terminal, dated 5 December 2013 23. The following description of the development of the dispute is drawn from Mr Guy’s evidence unless otherwise indicated.

[42] MO32, which was issued by AMSA, establishes a prescriptive regime concerning, among other things, the safe loading and unloading of cargo and the safe transfer of persons from ships, off-shore industry vessels and off-shore industry mobile units. Until October 2013, AMSA had traditionally allowed work to be done on vessels which did not comply with MO32 provided that a satisfactory risk assessment had been carried out by the person in charge in consultation with employees. However, the position changed when, on or about 22 October 2013, AMSA issued an information sheet which stated that work could not be performed by employees on a vessel which did not comply with MO32 unless the employees agreed to the risk assessment.

[43] On 12 November 2013 the vessel Safmarine Mulanje berthed at Patrick’s Fremantle Terminal. Bay 58 of this vessel was considered to be non-compliant with MO32, so that a risk assessment of that part of the vessel was conducted while the other parts of the ship were unloaded. We infer from the evidence that there was no agreement with the employees concerning that risk assessment.

[44] Early the following morning (13 November 2013), AMSA issued advice that the information sheet issued on 22 October was withdrawn, that the use of the risk assessment process as means for resolving disputes relating to the loading and unloading of cargo would cease immediately, and specified the new procedures to be followed. It appears that Patrick understood this to mean that there was to be a reversion to the pre-22 October practice. Later that day, an AMSA inspector conducted an inspection of the Safmarine Mulanje with the eventual upshot that Bay 58 was advised to be safe for the performance of cargo operations, although a defect notice was issued with respect to a passageway from the accommodation area to the work platform near Bay 58.

[45] On 14 November 2013 representatives of Patrick management and the operational employees attended the Safmarine Mulanje to review the position. The operational employees were advised that Patrick’s position was that Bay 58 could be worked safely and that accordingly they were required to participate in a risk assessment to address possible hazards and safety measures, so that work could proceed. When Mr Guy attempted to conduct a risk assessment, the four employees whom he required to participate (including a team leader) refused to do so, claiming that a risk assessment had already been done, that they were under no obligation to perform a further risk assessment, and that AMSA had not applied MO32 correctly. As a consequence of this the risk assessment could not be done, a significant delay was caused, and the Safmarine Mulanje left Fremantle Port without 36 containers having been loaded.

[46] Mr Guy stood down the four employees who had refused to participate in the risk assessment, on the basis that they had participated in illegal industrial action by refusing to follow a reasonable direction. That evening, he received a telephone call from Mr Will Tracey, the Assistant Secretary of the MUA’s Western Australian Branch. In the course of a discussion about the Safmarine Mulanje and the standing down of the four employees, the following exchange occurred 24:

[47] On 15 November 2013 the four employees who had been stood down the previous day were issued with warnings, which were confirmed in writing on 21 November 2013. We were informed by Patrick’s counsel at the hearing of the appeal that the employees were also docked pay for the period of the stand-down.

[48] On 19 November 2013 Mr Tracey and three other MUA officials attended the Fremantle Terminal and conducted a meeting with about 40 employees that went for about an hour. It was from that day that Patrick management observed unusual productivity data which caused them to conclude that the Cap had been re-imposed.

Patrick’s evidentiary case

[49] Patrick’s case that the Cap had been re-imposed at the Fremantle Terminal rested almost entirely upon the productivity data it produced and the analysis of that data conducted by Mr Timi Cheng, Senior Project Manager at the Port Botany Terminal. Mr Guy said in his witness statement that he believed that the Cap had been put back in place based not only on the productivity data but also “my observations of the employees working”. However Mr Guy did not identify in his statement what it was that he observed in the employees’ working practices which supported his belief that the Cap was in place, and in that circumstance the submission of the MUA that this evidence had little or no probative value must be accepted. There is nothing in the Decision which suggests that the Commissioner in any way relied upon Mr Guy’s evidence in this respect. Accordingly, that leaves Mr Cheng’s evidence concerning the productivity data for consideration.

[50] Mr Cheng’s evidence was that Patrick’s primary method of measuring productivity was “gross lifts per shift per crane”, and that Patrick collected the data of lifts per crane for all shifts and entered it into its Terminal Operating System. Using this data, Mr Cheng constructed a series of graphs and tables comparing the productivity data for periods before and after 19 November 2013. In Mr Cheng’s first witness statement, made on 5 December 2013 25, the data was taken up until 1 December 2013. In a further witness statement made on 18 December 201326, the data was updated to 15 December 2013. Those tables showed a sudden drop in the number of shifts in which crane lifts had exceeded 200 for the shift from 19 November 2013 as follows:

(1) From 13 June 2013 to 18 November 2013, 200 lifts per shift was exceeded 37.12% of the time.

(2) From 1 November 2013 to 18 November 2013, 200 lifts per shift was exceeded 57.17% of the time.

(3) From 19 November 2013 to 1 December 2013, 200 lifts per shift was exceeded 21.62% of the time.

(4) From 19 November 2013 to 15 December 2013, 200 lifts per shift was exceeded 24.83% of the time.

[51] The above statistics do not convey the full picture displayed by the statistics. As Mr Cheng pointed out, where 200 lifts per shift was exceeded on or after 19 December 2013, the amount by which 200 was exceeded was minimal - it appears from the graphs that in only perhaps one case was 220 lifts exceeded. By contrast, in the period from 1 November 2013 to 18 November 2013, 220 lifts per shift was frequently exceeded, as was 240 lifts per shift, and on some occasions 260 lifts per shift was achieved or exceeded. Mr Cheng also plotted on two graphs the distribution curves for the full range of the number of lifts per shift for the periods before and from 19 November 2013. He said that the first graph (for the pre-19 November 2013 period) had “a fairly normal and natural distribution of lifts per shift, with a degree of symmetry around the peak of the distribution” 27, but that the second graph (for the post-19 November 2013 period) demonstrated “a reasonably normal distribution until it reaches 200 lifts per shift” and “then drops off significantly, which would indicate an un-natural or forced distribution”28. This caused Mr Cheng to conclude that a limit or ceiling on productivity at or around 200 lifts per shift had been imposed.

[52] Mr Cheng undertook some further analyses to ensure that there were no other contributing factors which may have caused the productivity effects which he had observed. He firstly took into account the number of ITVs available on each shift which, he accepted, could have impacted upon the level of productivity. To identify whether this was a relevant factor, he performed separate analyses, comparing periods before and after 19 November 2013, for shifts when there were three ITVs available and for shifts when there were four ITVs available. Broadly speaking, the pattern in terms of a significant reduction in the number of shifts with over 200 lifts from 19 November 2013 and an irregular change in the distribution curve from the same date remained whether there were three or four ITVs available per shift. Secondly Mr Cheng considered delays caused by weather or vessel issues, but could not identify any difference in such delays before or after 19 November 2013. Thirdly, because there was a perception that delays due to breakdowns had increased after 19 November 2013, Mr Cheng recalculated the figures for the period from that date excluding those shifts which had a breakdown delay of over one hour. Again, this did not significantly change the results, demonstrating that breakdowns could not have caused the change in productivity which he had observed. Mr Guy also gave evidence that he was not aware of any other factors which may have contributed to the changes in productivity data after 19 November 2013, and that “the usual factors that contribute to reduced productivity, such as weather issues, have not existed since 19 November 2013” 29.

[53] In relation to the average number of crane lifts per shift, Mr Cheng’s analysis (in his second witness statement) demonstrated the following:

(1) For the period 13 June 2013 to 18 November 2013, the average number of crane lifts per shift was 168.59. In the same period, for shifts with three ITVs, it was 156.059, and for shifts with four ITVs, it was 182.271.

(2) For the period 19 November 2013 to 15 December 2013, the average number of crane lifts per shift was 171.414. In the same period, for shifts with three ITVs, it was 168.551, and for shifts with four ITVs, it was 172.905.

[54] The above figures were the basis for the MUA’s submission that average productivity had actually increased from 19 November 2013, when the industrial action was alleged to be occurring (although for shifts with four ITVs we observe that it fell). However, the picture becomes more complicated if the period 1 November 2013 to 18 November 2013 is compared to the period 19 November 2013 to 15 December 2013. Mr Cheng’s second statement, which had a graph which plotted the number of cranes lifts per shift over these periods, had a line across each period which represented the average performance for each period. 30 This demonstrated that the average of crane lifts per shift clearly and significantly fell in the period from 19 November 2013 - from about 186-7 per shift (the precise number cannot clearly be identified from the vertical axis on the graph) in the first period to about 171-2 in the second period. This would lead us to conclude that, in the more immediate timeframe commencing 1 November 2013, the period in which the industrial action was alleged to have occurred was marked by a significant fall in overall productivity as measured by average crane lifts per shift.

Evidence relied upon by the MUA

[55] We have already referred to the evidence relied upon by the MUA to support its contention that productivity actually increased during the period of industrial action. As earlier stated, the MUA (at first instance and in this appeal) advanced three possible alternative explanations for the change in the productivity statistics in the period commencing 19 November 2013. The first was the change in practice relating to MO32. We have already referred to the evidence concerning MO32. The MUA’s submission to the Commissioner in that connection was that the initial change by AMSA caused a spike in productivity, and that the reversion to the original practice (which occurred on 13 November 2013) had caused productivity to drop back again. 31 The MUA adduced no evidence that the way in which MO32 was implemented had any connection with productivity.

[56] The second alternative explanation was a requirement that ITVs drive around the stacks and drive more slowly and carefully. In this connection, it tendered a bundle of documents. 32 The first document in the bundle was a document entitled “Tool Box Topic - Issued 4/11/13” which referred to some incidents where use of ITVs had caused damage, and then set out six directions for future behaviours, one of which required drivers to “Drive to the conditions” and slow down on blind corners or if there were “lots of other vehicles in the area”, and another one of which said “Stick to the proper laneways, NO cutting through the stacks”. The other four documents in the bundle were pre-shift information reports dated 12, 19, 19/20 and 20 November 2013 respectively. Each of these reports referred to a safety incident involving the use of an ITV. The MUA cross-examined Mr Cheng about this issue, and Mr Cheng accepted that cutting through the stacks would involve drivers taking a more direct and quicker route, and that a cessation of this practice could lead to a drop in productivity, as could a direction to drive more slowly.33 On the basis of these documents, the MUA submitted to the Commissioner that the directions given in the tool box topic sheet of 4 November 2013 caused the drop in the number of shifts with over 200 lifts after 19 November 2013. It submitted that from the incident reports from 12 through to 20 November 2013, it could be inferred that there was a delay in obtaining compliance with the directions, that the employees’ attention was drawn to these directions over that period, and that it was only after 20 November that the direction was complied with.34

[57] The third alternative explanation was “pre-Christmas congestion”. The MUA asserted in submissions that “Everybody knows there is problems in the waterfront just before Christmas”, and that the productivity figures represented “the normal ebb and flow of work in the workplace”. 35 No evidence was identified to support this submission at first instance or in the appeal.

Consideration

[58] The approach to be taken in an appeal from a decision to issue an order under s.418 of the Act was described by the Full Bench in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd 36 in the following way:

[59] In that case, which as discussed earlier concerned industrial action constituted by the imposition of productivity limitations at Patrick’s Port Botany Terminal, the Full Bench discussed the circumstances upon which inferences could be drawn from primary facts in the following terms:

[60] The Full Bench also considered the extent to which an inference concerning the engagement in and organisation of industrial action could be founded on past instances of similar industrial behaviour. The Full Bench said:

[61] Neither party submitted that we should take any different approach in this appeal. We will apply the above statements of principle to the determination of this appeal.

[62] Apart from the unspecified observations of Mr Guy, which we have earlier accepted lacked probative value, there was no direct evidence of the industrial action - that is, no evidence of an observed overt act which constituted industrial action. Any conclusion that industrial action occurred depended upon an inference being drawn from undisputed or established primary facts. It is clear from his reasons that the Commissioner’s conclusion that industrial action was occurring was inferential in nature. Contrary to the MUA’s submissions, we do not attach any significance to the fact that the Commissioner did not expressly characterise his conclusion as being an inference.

[63] The primary facts in this matter concerning the previous history of the imposition of the Cap at Fremantle and Port Botany, the dispute which arose at Fremantle in November 2013 about MO32 and the standing down of four employees, and the productivity statistics for the periods before and after 19 November 2013, were not in dispute. There was no issue that if the Cap had been re-imposed by Patrick’s employees at Fremantle, that would constitute “industrial action” falling within the definition of that expression in s.19 of the Act that would be “happening” for the purpose of s.418(1)(a), and that such industrial action would not be protected. The principal question in this appeal is therefore whether the Commissioner’s conclusion that the Fremantle employees had imposed the Cap (at about 200 crane lifts per shift) was one that was available as a reasonable and definite inference on the primary facts and was more probable than any alternative explanation proffered for what was occurring.

[64] We consider that the Commissioner’s conclusion was one that was available to him to reach and also clearly correct. The statistical evidence adduced by Patrick demonstrated that from about 19 November 2013 there was an abrupt change both in the number of shifts in which crane lifts had exceeded 200 at all and in the number of shifts in which 200 lifts were exceeded to any significant degree. Mr Cheng’s analysis, taken together with Mr Guy’s evidence, established that weather, vessel difficulties, breakdowns and the number of ITVs available could not be the explanation for this highly anomalous result.

[65] The industrial history at Patrick at its Fremantle and Port Botany terminals, which we have earlier set out at length, suggested the most probable cause for what was occurring. That history demonstrated that the MUA and its members employed at Fremantle and Port Botany had imposed the Cap - that is, a restriction on the number of container lifts which could be performed per shift - up until enterprise bargaining negotiations in 2011. In the course of those negotiations, the MUA then made a commitment that the Caps at Fremantle and Port Botany would be removed and not re-imposed in the future. It then broke that commitment by using the re-imposition of the Cap as a pressure tactic in relation to disputes which arose at Port Botany. In two instances in 2012 and 2013 respectively, the Commission found, substantially on the basis of statistical evidence produced by Patrick, that the MUA and its members at Port Botany had organised and engaged in industrial action through the re-imposition of the Cap, over the denials of the MUA, and s.418 orders had issued as a result. We consider that the following proposition may be regarded as firmly established from the industrial history:

(1) The MUA and its members have the organisational capacity to limit productivity through the imposition of the Cap for extended periods of time.

(2) The MUA and its members are prepared to use the imposition of the Cap as a pressure tactic to help secure a favourable outcome in industrial disputes that arise from time to time, notwithstanding the commitment that was made in the course of the negotiation of the Agreement.

(3) The Cap is able to be imposed in a way that is not overt and is therefore “deniable” by the MUA, and only becomes apparent upon the analysis of productivity data over a period of time.

[66] The dispute which arose in the week before 19 November 2013 provides the proximate cause for the re-imposition of the Cap. The MUA had a grievance in respect of the procedures for the application of MO32 and the standing down and issuing of warnings to four employees who refused to participate in a risk assessment of the Safmarine Mulanje. In his telephone call to Mr Guy on the evening of 14 November 2013, the MUA’s Mr Tracey made remarks which we consider to be in the nature of a warning or threat of further consequences if Mr Guy did not reconsider his decision to stand down the four employees. That was followed on 19 November 2013 by the conduct by Mr Tracey and three other MUA officials of a meeting of employees at the Fremantle Terminal. The change in the productivity data made itself apparent from about that date.

[67] In those circumstances, we consider that the inference that the MUA and its members re-imposed the Cap at the Fremantle Terminal in response to the dispute about MO32 and the standing down of the four employees is a compelling one. In accordance with the principle stated in Jones v Dunkel 37, that inference could be more confidently drawn because of the failure of the MUA to call any witness, whether an MUA official or an employee at the Fremantle Terminal, to give evidence denying the organisation of or engagement in the re-imposition of the Cap. We note that at one stage of the hearing the MUA proposed to call a Mr Clifford Smith to give evidence.38 Mr Smith ultimately did not give evidence arising from an objection raised by Patrick concerning the lack of any prior notice of Mr Smith’s evidence, but it is apparent from the MUA’s description of the evidence it proposed to adduce from Mr Smith that it would not have been concerned with denying the imposition of the Cap but only the direction for ITVs not to be driven through the stacks and to be driven more slowly.39 Ultimately the bundle of documents marked as Exhibit 5 was tendered in substitution for Mr Smith’s evidence. We do not consider therefore that the foreshadowed evidence of Mr Smith would have altered the applicability of the Jones v Dunkel principle.

[68] We do not consider that the distinction the MUA sought to make with the Port Botany case, namely that productivity as measured by average lifts per shift was higher in the period 19 November 2013 to 15 December 2013 than in the period 13 June 2013 to 18 December 2013, alters the position. This is for three reasons:

(1) An increase in the average number of lifts performed per shift is not necessarily inconsistent with there being a cap on the maximum number of shifts allowed to be performed per shift. Certainly the MUA did not demonstrate any such necessary inconsistency.

(2) The fact that there may have been an increase in average productivity over a given period would make all the more anomalous a marked reduction in the number of shifts with lifts over 200 in the same period. It is opposite to the result that would normally be expected, namely that an increase in average productivity would result in there being more, not less, shifts with more than 200 lifts achieved.

(3) The productivity data that is more proximate to the period in question - that is, that which compares the period 1-18 November 2013 to the period 19 November 2013 to 15 December 2013 actually shows a marked reduction in average lifts per shift. This reduction in productivity is entirely consistent with what occurred in the Port Botany case.

[69] We reject the MUA’s criticism that the description of the Cap as being set at “roughly 200” was arbitrary in nature and in any event not consistent with the evidence insofar as there was a small number of occasions over the relevant period in which over 200 lifts in a shift was achieved. Patrick was not in a position to be able to prove, and the Commissioner was not in a position to determine, the precise numerical basis upon which the Cap may have been re-imposed. The critical question was whether a limitation had been imposed at all. Patrick was able to demonstrate the existence of such a limitation in its analysis of the productivity data using the number 200 as a reference point, but it could readily have made good the same proposition using, say, 210 as the reference point in the analysis.

[70] None of the MUA’s proffered alternative explanations for the outcomes demonstrated in Patrick’s analysis of the productivity data is in any way probable. There was no evidence to support the counter-intuitive proposition that a more onerous method of applying MO32 - that is, requiring a risk analysis to be agreed with employees before work could occur on a vessel which was not compliant with MO32 - would cause a “spike” in productivity, or that the removal of this requirement would cause a reduction in productivity. In relation to the directions issued as part of the “Tool Box Topic” document of 4 November 2013, there was no evidence that those directions represented a change to the required practice in the workplace; it is more likely that they represented a reminder as to what the existing required practice was. What effect those directions had on actual working practices was also not the subject of any evidence. The MUA’s attempt to demonstrate by reference to documents concerning ITV accidents that the directions, issued on 4 November 2013, took effect in a practical sense on 20 November 2013, was entirely unconvincing. As to alleged pre-Christmas congestion, there was no evidence on this topic at all, so that it remains unknown whether there was any pre-Christmas congestion at all, when it started, or what if any effect it might have on productivity.

[71] Once the Commissioner had found that industrial action by way of the re-imposition of the Cap was happening, the further inference that such industrial action was organised by the MUA followed almost as a necessary consequence. Mr O’Leary gave the following unchallenged evidence in his witness statement:

[72] The industrial history demonstrated that when the Cap was lifted in 2011 at Port Botany and Fremantle, this was done by way of arrangement with the MUA. When the Cap was re-imposed in Port Botany in 2012 and again in 2013, the Commission found on both occasions that this had been organised by the MUA. The dispute which arose at the Fremantle Terminal in November 2013 clearly involved the MUA taking a leadership role on behalf of employees’ interests. This evidence makes it overwhelmingly likely that any re-imposition of the Cap was organised by the MUA. We note that the MUA did not run an alternative case that, to the extent the Cap was found to be in place, it had not been organised by the MUA.

[73] We conclude therefore that there was a proper basis for the Commissioner to determine that he was satisfied that industrial action in the form of the Cap was happening and was being organised by the MUA. That being the case, s.418(1) required the Commissioner to make an order of the nature that he did. We therefore reject appeal grounds (2), (3) and (4). No submission was advanced by the MUA in the alternative challenging the specific terms of the Order, and as earlier noted the Order was in the same terms as that made by the Full Bench in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd 40. Appeal ground (5) is therefore also rejected.

[74] That leaves appeal ground (1). Although the Decision is short, we do not consider that there is any prejudicial insufficiency of reasons in the Decision. Once the reasoning in the Decision is related to the evidence that was before the Commissioner, it becomes clear enough what the basis of the Commissioner’s determination was. Certainly those reasons have proved sufficient to permit the MUA to articulate its case in this appeal as to why the Order should not have been made. In Transport Workers’ Union of Australia v WA Freightlines Pty Ltd 41 the Full Bench said:

[75] We consider that the exercise of the statutory function in s.418(1) will always involve an element of urgency. That is usually the case because of the requirement in s.420(1) that any application for an order under s.418(1) be determined so far as practicable within two days. However, even where that proves not to be practicable and an interim order is made under s.420(2) as a result, that should not lead to the result that any urgency in the application thereby dissipates. It is a serious matter for persons to be bound by an interim order, contravention of which may attract civil penalties, in circumstances where the liability of those persons to an order under s.418(1) has not yet been determined. The Act may require that result, but such a situation should also lead to the Commission determining the application to finality as soon as possible even if this cannot be done in the two day period referred to in s.420(1). We consider that the Commissioner acted in accordance with this preferred approach by giving short ex tempore reasons for his decision rather than reserving upon it, and in that context we consider that, save for one matter, the reasons he gave for his decision were adequate for the purpose.

[76] The one area in which the Commissioner’s reason were not adequate was that he failed to make any mention of the submissions made by the MUA as to why no order under s.418(1) should be made, and thereby failed to demonstrate that he had taken those submissions into consideration. However, if this failure constituted error, even jurisdictional error, it does not follow that permission to appeal should be granted and the MUA’s appeal upheld. It is well established that the lack of a useful result is a proper reason to refuse to grant relief even where jurisdictional error has been identified. 42 We have in this decision considered all the submissions made by the MUA before the Commissioner, and for the reasons we have earlier set out have concluded that they lacked merit. They could not therefore, if expressly considered at first instance, have given the MUA the possibility of a successful outcome. If permission to appeal was granted, the appeal upheld, and the matter re-heard, those submissions would not lead to a different result in the re-hearing. In those circumstances, we consider that there would be no utility in granting the MUA permission to appeal, and the public interest does not otherwise require the grant of leave to appeal.

Additional observations

[77] Having regard to the objects of the Act which are set out in s.3, we consider it appropriate to make two additional observations about this matter.

[78] Firstly, we note that this is now the third occasion in which the MUA and its members have been found to have re-imposed the Cap after it was lifted at the Fremantle and Port Botany terminals in late 2011. The second and third occasions occurred after the Agreement, which has not yet reached its nominal expiry date, took effect under the Act, and so prima facie constituted industrial action taken in contravention of s.417(1) of the Act. It is also the case that each of these three occasions involved a breach of the commitment which the MUA gave in the course of bargaining for the Agreement to lift the Cap and not re-impose it during the life of the Agreement. That commitment clearly had considerable significance in the bargaining for the Agreement: it was evidently regarded as something of considerable value by Patrick; Mr Crumlin, the MUA’s National Secretary, personally undertook to assist in delivering compliance with the commitment; and on the strength of the commitment the MUA’s members were afforded a considerable financial benefit in terms of back-pay. The fact that the MUA, having given that commitment, has proceeded repeatedly to dishonour it is highly disturbing. Conduct of this nature discredits the integrity of enterprise bargaining and is likely in the future to inhibit honourable and productive dealings between the MUA and employers because it casts doubt upon the MUA’s willingness or capacity to abide by agreements it enters into. Our expectation is that the MUA will take steps to ensure that this type of conduct does not recur.

[79] Secondly, the chronology of events in this matter indicates that although Patrick may not yet have been in a position on or immediately after 19 November to be confident that its employees at the Fremantle Terminal were engaging in industrial action by way of the re-imposition of the Cap, it was clearly sure that that was the case by the time it filed its application for a s.418(1) order on 4 December 2013 at the latest. In that circumstance, Patrick’s obligation under s.474 to cease paying its employees would appear to have been engaged. That statutory obligation, as we have earlier explained, is an important part of the regime of provisions in the Act intended to prevent the occurrence of non-protected industrial action. At the hearing of this appeal we inquired of counsel for Patrick what steps Patrick had taken in respect of its obligations under s.474. Although counsel for Patrick did not concede that any contravention of s.474 had occurred, it is apparent from counsel’s response to our inquiry that Patrick’s employees at its Fremantle Terminal had not suffered any loss of pay in respect of the period in which they have been found to have engaged in non-protected industrial action. It is a matter for the courts, not the Commission, to determine whether any contravention of s.474 has occurred. It is sufficient for us to observe that compliance with s.474 by employers is of course not voluntary, that a failure to comply with s.474 may attract the imposition of a civil penalty, and further that an employer which unlawfully permits its employees to engage in non-protected industrial action without any consequence in terms of loss of pay should not be surprised that such employees repeatedly resort to the use of such industrial action as a pressure tactic when industrial disputes arise.

Conclusion

[80] To the extent that the Commissioner may have erred in not giving any express consideration in the Decision to the MUA’s submissions, we do not consider that there is any utility in granting permission to appeal because of the lack of merit in those submissions. We do not consider that the MUA has otherwise demonstrated any error in the Decision or in the making of the Order. Permission to appeal is refused.

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VICE PRESIDENT

Appearances:

S. Crawshaw SC with L. Edmonds for the Maritime Union of Australia

Y. Shariff of counsel with A. Allegretto, solicitor, for Patrick Stevedores Holdings Pty Ltd

Hearing details:

2014.

Sydney:

January 23.

 1   [2013] FWC 9547

 2   PR545941

 3   [2013] FWCFB 7736

 4   [2013] FCAFC 157

 5   [2012] FCAFC 146 at [57], 207 FCR 277

 6   [2013] FWCFB 2568

 7   Exhibit 2, Appeal Book pp.163-394

 8   Exhibit 2, Appeal Book pp.292-293

 9   Exhibit 2, Appeal Book p.300

 10   Exhibit 2, Appeal Book p.312

 11   Exhibit 2, Appeal Book p.319

 12   Exhibit 2, Appeal Book p.359

 13   Exhibit 2, Appeal Book p.379

 14   PNs 23-31

 15   PNs 799-800

 16   PNs 847-852

 17   PR521163

 18   See Patrick Terminals Enterprise Agreement 2012 [2012] FWAA 5021 at [1]-[2]

 19   Ibid

 20   Patrick Stevedores Holdings Pty Limited v Maritime Union of Australia [2013] FWC 4391

 21   PR538567

 22   Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB 7736

 23   Exhibit 3, Appeal Book pp.26-162

 24   Exhibit 3, Appeal Book pp.29-30

 25   Exhibit 1, Appeal Book pp.395-426

 26   Exhibit 4, Appeal Book pp.427-460

 27   Exhibit 1, Appeal Book p.399

 28   Ibid

 29   Exhibit 3, Appeal Book p.30

 30   Exhibit 4, Appeal Book p.431 at [11]-[12]

 31   Appeal Book pp.555-556 PNs 895-897

 32   Exhibit 5

 33   Appeal Book pp.516-517 PNs 562-569

 34   Appeal Book pp.560-562 PNs 925-930 and 933

 35   Appeal Book p.560 PN 921

 36   [2013] FWCFB 7736

 37   [1959] HCA 8; (1959) 101 CLR 298

 38   Appeal Book pp.527-8 PNs 691-697.

 39   Appeal Book pp.528-9 PNs 705-6

 40   [2013] FWCFB 7736

 41   [2011] FWAFB 3863

 42   Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025 at [48]; Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia [2013] FWCFB 4250 at [14]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; Gardner and another v Dairy Industry Authority of NSW (1977) 18 ALR 55; Transport Workers Union of NSW v AIRC (2008) 171 IR 84.

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