[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:
‘Question 1: Should the company be required to provide any relevant information relating to the decision to select each employee of the company for employment, redundancy or redeployment at the terminal at the time such decision is communicated to each employee?
Question 2: If the answer to Question 1 is yes, which of the following categories of information is relevant information?
Shift Managers Score:
1. Written reasons for the Company’s decision to employ, redeploy or make an employee redundant.
2. Individual Shift Manager’s scores clearly identifying the Primary Shift Manager’s score.
3. Any documents, notes or records made by the Company or Shift Manager in relation to each individual Shift Manager’s score for the employee.
4. Any documents, notes or records made by the Company in relation its decision to employ, redeploy or make an employee redundant.
Productivity Score:
1. An explanation on how the Productivity Score was scored?
2. Who was involved calculating the Productivity Score?
3. Was the Score based only on raw data or did the Company take into account variables that may affect the raw data, and Productivity Score?
4. What were the variables taken into account by the Company?
Crane Score:
1. The raw scores for each employee in the following categories:
A. Safety/Operating Violation;
B. Damage/Collisions;
C. Performance: actual lifts per hour, and the employees ranking out of the total number of employees that were assessed. For clarity not the percentile. The actual ranking before being placed in the percentile.
2. The employee’s percentile rating for the “performance” category?
3. The employee’s crane score, and ranking for their overall crane score out of the total number of employees that were assessed prior to the score being normalised.
4. The employee’s rating after their score was “normalised”?
Skills:
1. Did the Company recognise all of the skills an employee has acquired in their current position?
2. If yes what was the score for each skill for each preference selected?
3. If no why not?
4. If no what skills were recognised, and what was the score for each score that was recognised?
Question 3: If the answer to Question 1 is yes in relation to any information, which of the following should be provided with the information and what information should the following be provided with?
The MUA;
The delegates of the MUA;
The employees of the company
Question 4: In any conciliation or arbitration before Sams DP as the mutually agreed conciliator/arbitrator under Clause 8.2 of Schedule 3 of the Agreement is he entitled to exercise any powers he has under Subdivision B of Division 3 of Pt 5-1 of Ch 5 of the Fair Work Act 2009?
Question 5: If the answer to question 4 is yes, in any conciliation or arbitration before Sams DP as the mutually agreed conciliator/arbitrator should Sams DP require the Company to produce documents containing the following categories of information?
Shift Managers Score:
5. Written reasons for the Company’s decision to employ, redeploy or make an employee redundant.
6. Individual Shift Manager’s scores clearly identifying the Primary Shift Manager’s score.
7. Any documents, notes or records made by the Company or Shift Manager in relation to each individual Shift Manager’s score for the employee.
8. Any documents, notes or records made by the Company in relation its decision to employ, redeploy or make an employee redundant.
Productivity Score:
5. An explanation on how the Productivity Score was scored?
6. Who was involved calculating the Productivity Score?
7. Was the Score based only on raw data or did the Company take into account variables that may affect the raw data, and Productivity Score?
8. What were the variables taken into account by the Company?
Crane Score:
5. The raw scores for each employee in the following categories:
D. Safety/Operating Violation;
E. Damage/Collisions;
F. Performance: actual lifts per hour, and the employees ranking out of the total number of employees that were assessed. For clarity not the percentile. The actual ranking before being placed in the percentile.
6. The employee’s percentile rating for the “performance” category?
7. The employee’s crane score, and ranking for their overall crane score out of the total number of employees that were assessed prior to the score being normalised.
8. The employee’s rating after their score was “normalised”?
Skills:
5. Did the Company recognise all of the skills an employee has acquired in their current position?
6. If yes what was the score for each skill for each preference selected?
7. If no why not?
8. If no what skills were recognised, and what was the score for each score that was recognised?
Question 6: If the answer to question 5 is yes in relation to any information, should the commencement date for any timetable for submissions and evidence in any arbitration before Sams DP as the mutually agreed arbitrator be the date the information has been provided rather than the date the employee is notified of the final decision of the Company in relation to redundancy, redeployment or employment?
Question 7: Should the timetable for submissions and evidence before Sams DP as the mutually agreed arbitrator provide for:
1. The evidence and submissions on which the employee wishes to rely be filed within 21 days from the commencement date of the timetable.
2. Thereafter the evidence and submissions on which the company wishes to rely be filed within 21 days.
3. Thereafter the evidence and submissions in reply on which the employee wishes to rely be filed within 14 days.
Question 8: In any arbitration before Sams DP as the mutually agreed arbitrator should there be a hearing in which evidence is presented and persons whose evidence is relevant to the decision to select each employee of the Company for employment, redundancy or redeployment at the terminal are cross examined?’
[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:
‘14. CONSULTATION AND CHANGE
14.1 The parties are committed to pursue all opportunities to adopt the world's best practices through modern technology and continuous improvement to all aspects of Company operations.
14.2 The Company having made a decision that it intends to proceed with any significant change shall advise the employees in the first instance and the Union of the nature of the change, the reason for it, the timing of it, and any other relevant information. The Company shall consider any views or advice from the Union or employees in relation to the proposed change. However, this consultation shall not give cause for any delay to the implementation of the change nor shall there be any obligation on the Company to obtain the Agreement of the Union or employees to change. It is agreed between the Parties that after the above notification and discussion has taken place that the Company, after careful consideration of the views of employees, may implement change with twenty one days notice.
14.3 Without limiting the generality thereof, significant change includes redundancy, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.
14.4 Where, subject to the provisions of this clause, the Company exercises its rights to implement significant change in the workplace and employees disagree with that decision and implementation of the change, subject to there being no stoppage of work or rejection of implementation of the change, the employees or the Union, where requested by the employees, may refer the matter in dispute to the FWA in accordance with the Dispute Resolution Procedure set out in Schedule 1 of this Agreement.’
‘SCHEDULE 1 -DISPUTE RESOLUTION PROCEDURE
In the event of a dispute arising in the workplace in regard to the application of this
Agreement or the National Employment Standards (other than under s65 (5) and 76
(4) of the Act), the procedure to be followed to resolve the matter shall be as follows:
1. The parties shall attempt to resolve the matter at the workplace level including
but not limited to:
1.1. The Employee, the Employee's delegate (if requested), and his or her supervisor, meeting and conferring on the matter; and
(a) If the matter is not resolved at such meeting, the parties arranging further discussions involving more senior levels of management, Employee Representatives and Union officials (as appropriate).
(b) If the matter is not resolved at such a meeting the parties arranging further discussions involving more senior levels of management (as appropriate).
(c) If the matter cannot be resolved at workplace level, the matter may be referred by either party to National level for discussion between the parties, after which time either party may refer the matter to FWA for conciliation.
(d) If the matter is referred for conciliation, both parties will participate in the process in good faith.
(e) Where the dispute has not been resolved within 7 days of the issue giving rise to the dispute being raised despite the foregoing procedures being followed and subject to there being no industrial action occurring or having occurred in relation to the issue at hand, then subject to Clause 1.3 either party may refer the matter to FWA for arbitration if necessary in which case the decision will be accepted by the parties subject to any appeal rights.
(f) Either Party may refer the dispute to FWA at any stage of the procedure if the procedure is not being followed or is otherwise inappropriate in the circumstances.
(g) During the time when the parties attempt to resolve the matter, either at the workplace level, or through conciliation or arbitration, the parties shall continue to work in accordance with their contract of employment and obligations under this Agreement.
1.2 The parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible.
1.3 Unless agreed by the Parties, FWA shall not have the power to arbitrate in relation to any dispute involving a Company Policy, other than in relation to a dispute over whether or not the a Party has complied with a Company Policy, as required by this Agreement.’
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:
‘(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion--provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.’
[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.
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
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Annexure A