[2015] FWC 1280
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s 739 - Application to deal with a dispute

Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Limited
(C2012/5578)

DEPUTY PRESIDENT SAMS

SYDNEY, 26 FEBRUARY 2015

Alleged dispute about any matters arising under the enterprise agreement - consultation - provision of relevant information - selection procedure for new roles - training for new roles - grievances arising from selection - jurisdiction and merits - company to provide information - private arbitrator - questions about separate grievance procedure not answered.

Background

[1] This decision arises from the long running superintendence by the Fair Work Commission (the ‘Commission’) of the redevelopment and automation of Patrick’s operations at Port Botany and the significant ramifications for the workforce. The original dispute giving rise to the Commission’s involvement was filed in October 2012 and there have been dozens of conferences chaired by the Commission since that time. This will be the third arbitration of a matter arising from the failure of the conferences to resolve particular discrete issues; See: The Maritime Union of Australia v Patrick Stevedores Holdings Pty Limited [2013] FWC 6709, The Maritime Union of Australia v Patrick Stevedores Holdings Pty Limited [2014] FWC 2651. We are now at the ‘pointy end’ of the project where employees are being selected and retrained for new roles in the automated terminal.

[2] It is relevant to set out the current situation. All employees have been advised whether or not they have been selected for training in the new roles. While no employee has been formally advised that he/she is to be made redundant, it may be safely assumed that those employees not selected for training have limited, if any, prospects of ongoing employment after the ‘cut over’ to automation in July this year.

[3] As a result of the above advice, Patrick has received around 130 grievances from disaffected employees who were either not selected for training or were unsuccessful in their first preferences for training in a new role. No grievance has yet been processed. However, Patrick (rather optimistically) predicts that the full selection process will be completed by the end of March.

[4] Given this imperative and the desire of the parties to have a speedy determination of the issues in contest between them, I propose to give my decision in brief and reserve the right to issue detailed reasons, if necessary. The Commission was provided with detailed written submissions, supplemented orally by Mr S Crawshaw of Senior Counsel and Mr A Slevin of Counsel for the Maritime Union of Australia (the ‘MUA’) and Mr D Perry, Solicitor for Patrick. Counsel was granted permission to appear, pursuant to s 596 of the Fair Work Act 2009 (the ‘Act’).

The issues in dispute
[5] The Union (‘MUA’) asked the Commission to answer the following questions:

[6] Unsurprisingly, Patrick’s submissions were that the answer to each question should be ‘no’. Mr Perry raised both jurisdictional and merit arguments in support of Patrick’s submissions.

Relevant terms of the Agreement

[7] The following provisions of the Patrick Terminals Enterprise Agreement 2012-2015 are relevant to the present dispute:

Patrick’s proposed grievance procedure is annexed to this decision; see Annexure A.

Jurisdiction of the Commission

[8] Mr Perry raised two principal jurisdictional impediments said to prevent the Commission from answering the MUA’s questions. Firstly, that industrial action found to have been taken by the Union in 2013 in the form of ‘productivity limitations’, meant that the provisions of cl 14(1)(e) of the disputes procedure concerning industrial action preventing the Commission from dealing with the matter, must apply.

[9] In my view, the critical words of that clause in the present context are ‘issues at hand’. The notion of ‘at hand’ means something ‘close by in time or space’ (Richard Spears, Dictionary of American Idioms and Phrasal Verbs, McGraw-Hill, 2005). I do not know how it could be conceivably suggested that the issues ‘at hand’ in early 2013 are the same issues ‘at hand’ in 2015. Indeed, the issues in 2015 - the testing of the selection procedure for individuals - was not even known in 2013, nor was the selection procedure itself. I reject this objection to jurisdiction.

[10] Secondly, Mr Perry submitted the matters subject to the Union’s questions were not matters ‘arising in the workplace in regard to the application for this Agreement...’. I cannot agree. In my view, the questions relating to providing information go directly to the Consultation Clause at cl 14. As Mr Perry acknowledged there has been no decision taken in respect to whether retrained employees will even be offered new roles; let alone others being told they are to be made redundant. Cl 14 has no limitation on consultation. It must follow that the parties are still in the process of consultation. Accordingly, the requested information questions are matters arising in respect to the application of the Agreement, in particular cl 14. I shall say something shortly about the separate grievance process.

The Merits of the application

[11] I would make the following general observations. At the outset, it must be stressed that the right of Patrick to manage and arrange its business as it sees fit, is a right untrammelled by answering the questions of the Union - even in the Union’s favour. Despite opposing the redundancies of its members and opposing the process by which they were selected for training, the Union does not seek to challenge either the general or specific decisions taken by management in this exercise. That argument has been run and lost. This is not a case, like the earlier two arbitrations, of the Union seeking to have the Commission impose a different selection procedure on Patricks, than the amended one it has used more recently.

[12] This case is nothing more than a conventional, and I would have thought largely uncontroversial, request for relevant information which sits behind the selection decisions of management. ‘Relevant information’ is not defined in the Agreement, but it seems to me it must be given its common and ordinary meaning; being any information which informed Patrick as to the decision to select an employee for training in a new role. When viewed in this way, I am satisfied that the information sought by the Union is ‘relevant information’ for the purposes of the Consultation Clause of the Agreement.

[13] Patrick’s position is not assisted by its acknowledged errors in earlier calculations of employee scores. Appropriately, Patrick suspended the process while the corrections were made. It is not the point that the errors had no actual impact on persons scores, vis a vis other employees in the same category. It plainly demonstrated that the system is not foolproof and it is little wonder the Union is sceptical of the outcomes. That said, this is not a criticism of the consultation exercise or of any individual. I continue to believe that the consultation process has been comprehensive and rigorous, but that does not derogate from the Union’s right, under the Agreement, to be provided with ‘relevant information’.

[14] Indeed, it seems the Company’s opposition is self defeating. If nothing is held back then the number of grievances may well be reduced, perhaps even significantly. Scepticism of the process should be eliminated. Moreover, what is being sought is no less than is ordinarily required in any redundancy situation where the result is a large number of redundant employees being selected over those others who are to remain employed. The Act’s model consultation term is most instructive in this regard:

[15] In my opinion, this is not just a case where justice must appear to be done, but must actually be done. For individuals to understand how these decisions are made they should be provided with all the source information and be confident that the information is correct (as far as subjective factors can be).

[16] I accept the decision I make will be a burden on the Company’s time and resources. But it is not as if the information is not able to be readily obtained and provided. Any administrative burden on the Company is far outweighed by the disastrous and life changing impact those decisions will have on very many individual employees and their families. Indeed, I would go so far as to say it is a right of an employee to know the basis on which he/she has been selected.

[17] In addition, I do not accept any confidentiality concerns in respect to providing this information. It was the Company which set up this process and which required the managers’ input. Managers’ decisions should be able to be tested and justified. If this input is tainted by wrong or irrelevant subjective judgments, it is hardly the fault of the employee. This is a well informed, highly charged and robust workplace which I am sure can weather any discomfort from what managers might say about particular employees (and vice versa).

[18] I would answer the first question in the affirmative; as to the second question, all of the information as requested should be provided; and the third question, the information is to be provided to the MUA, the delegates and the employees.

[19] As to questions 4 - 8 going to the grievance procedure for selection grievances, I would say this. My offer to act as a determiner of grievances arising from the selection procedure was made in good faith to assist the parties with a quick and efficient means of determining individual grievances about their selection, or otherwise, for new roles in the automated terminal. Regrettably, my expectations in this respect have been naively misplaced. Had I known the extent of the controversy that has arisen about this process, and indeed what powers I would be exercising in such a function, I would never have made the offer. As Mr Perry was at pains to remind me, my role as an agreed or private arbitrator sits outside the Agreement, notably the disputes and grievance procedures under the Agreement. So be it.

[20] As a result, I intend to withdraw my offer to act as a private arbitrator, and the parties will be left to rely on either the provisions of the Agreement or the Act (including possible unfair dismissal applications) to deal with those grievances. Nevertheless, I will reconsider my decision to withdraw my offer, if the parties advise my Chambers within 14 days that they have reached complete agreement as to the process.

[21] Should a separate grievance process be agreed, I would expect that the Union would not take up every grievance, just because it must appear to be acting for every disaffected employee, regardless of merit. The Union has a duty and responsibility to ensure that obviously unmeritorious cases are not proceeded with. This is not about a Union’s popularity contest or about stifling or frustrating the process. Unions often have a difficult duty to sometimes tell their members that which they don’t want to hear. I would expect the MUA, its Officials and Delegates to act according to that duty. For these reasons, I decline to answer questions 4 - 8.

Seal of the Fair Work Commission with Deputy President Sams' signature.

DEPUTY PRESIDENT

Appearances:

Mr S Crawshaw of Senior Counsel and Mr A Slevin of Counsel for the Applicant

Mr D Perry, Solicitor and Ms V Bulut, Solicitor for the Respondent.

Hearing details:

Sydney

2015

19 February

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561327>

Annexure A