//
[230]
[2023] FWC 806
General information, not legal advice.
Fair Work Commission
2023-04-03
Original judgment source is linked above.
s.739 - Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)].
[1] The Maritime Union of Australia Division (the MUA/the Union) of the Construction, Forestry, Maritime, Mining and Energy Union made an application to the Fair Work Commission (the Commission) pursuant to s. 739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute under the dispute resolution procedure in the DP World Brisbane Enterprise Agreement 2020. The Respondent is DP World Brisbane Pty Ltd (DP World), the operator of the container stevedoring facility at the Brisbane terminal.
[2] The DP World Brisbane Enterprise Agreement 2020 (the Agreement) was approved by the Commission on 22 December 2020 and commenced operation on 29 December 2020. The MUA, being a bargaining representative for the Agreement, is covered by the Agreement. The nominal expiry date of the Agreement is 30 September 2023. The Agreement is structured into Part A and Part B. Part A contains common terms and conditions that apply nationally to each of the stevedoring operations located at the four terminals in Sydney, Brisbane, Melbourne and Fremantle respectively. Part B of the Agreement contains local or site-specific terms and conditions that apply at the Brisbane terminal.
[3] Clause 9.1 of the Agreement provides inter alia that:
The Company acknowledges Employees may be represented by the Union and its officers appointed, in accordance with the Union's rules. Subject to the relevant provisions of the Act an officer of the Union shall be granted right of entry into Company operations at any time to represent Employees of the Company for the purpose of ensuring observance of this Agreement, the Stevedoring Award, an order of FWC binding on the Union, or to represent Employees in other matters pertaining to the employment relationship between the Company and its Employees...
[4] On 11 August 2021, a Bulletin was issued by DP World requiring employees at its Brisbane facility to attend one-on-one employee feedback sessions, scheduled to commence from 12 August 2021. The Bulletin states that:
"Operations Supervisors will provide employees with feedback in the areas of Performance, Attitude, Communication and Safety. It will also enable employees to seek feedback as well as ask any relevant questions, Additionally, the Company will provide data relating to Safety Interactions being conducted at the terminal and the main areas of focus so far this year.
These discussions also provide an opportunity to listen to feedback from our people and take appropriate action. The One-on-One discussions aim to assist individual to perform to the best of their ability, develop their potential and achieve high performance in their careers. Support people are not permitted for this process as has been the case previously.
The Company expects that employees will participate in the process constructively in line with Company values."
[5] On 11 August 2021, the MUA sought to exercise its right of entry under clause 9 of the Agreement to attend the one-on-one feedback sessions if employees attending the session requested representation and support from the MUA. This request was refused by DP World on the basis that Union representation is not permitted at one-on-one feedback sessions. On 18 August 2021, the MUA initiated steps to resolve the dispute with DP World management, but the dispute remained unresolved.
[6] The matter was not resolved by conciliation, and it is not in issue that the Commission is empowered to arbitrate the dispute in accordance with the Dispute Resolution Procedure in clause 29.2.7 of the Agreement. The parties have agreed on the following question for arbitration:
"Does clause 9 of the Enterprise Agreement permit employees to be represented by the Union in 'one-on-one employee feedback sessions' when those sessions involve Operations Supervisors providing 'employees with feedback in the areas of Performance, Attitude, Communication and Safety'?"
[7] The MUA contends that the clear and unambiguous language of clause 9.1.1 of the Agreement entitles employees to be represented by the MUA or its appointed officers in one-on-one feedback sessions because the sessions clearly involve "matters pertaining to the employment relationship between the Company and its Employees", as provided for in clause 9.1.1. In addition, the MUA contends that the one-on-one feedback sessions were not conducted for the purposes of holding constructive discussions with the employees, but rather, the employees were made to "feel bullied" or "targeted" by being shown "a pre-prepared report containing supposed quotes from unnamed managers suggesting that the employee was not working hard, or fast enough and that the employee had a bad attitude and complained too much at Toolbox Meetings".
[8] DP World rejects the allegation that the feedback sessions were "an occasion for intimidation or abuse" and stated that the feedback sessions have had a long history of being conducted with the employees individually, and employees never requested a Union representative to be present. Clause 9 of the Agreement is headed "Employee Representation" and clause 9.1.1 is headed "Right of Entry of Union Officials". DP World contends that clause 9.1.1 sets out a right of entry regime whereby the MUA may enter DP World's premises for specific purposes, subject to certain requirements being met. It does not, nor has it ever, extended itself to create a right of representation beyond the matters the Agreement clearly covers. In DP World's view, the feedback sessions are not regulated by the Act, the Award or any provisions of the Agreement and this can be contrasted with other provisions of the Agreement, which specify the rights of employees to be represented in particular matters by the Union. Thus, DP World argues that the feedback sessions "sit squarely within the confines of managerial prerogative" and are not an issue "which the parties have over the long history of bargaining sought to regulate".
[9] Clause 9 of the Agreement in which the disputed term appears, provides that:
9.1.1 The Company acknowledges Employees may be represented by the Union and its officers appointed, in accordance with the Union's rules. Subject to the relevant provisions of the Act an officer of the Union shall be granted right of entry into Company operations at any time to represent Employees of the Company for the purpose of ensuring observance of this Agreement, the Stevedoring Award, an order of FWC binding on the Union, or to represent Employees in other matters pertaining to the employment relationship between the Company and its Employees, provided always:
(a) The Union officer first advises the site manager of his/her intended arrival on site in accordance with procedures determined by the Company and notified in writing to the Union's National Secretary and relevant Branch Secretary.
(b) The subsequent conduct on site by that officer or by Company Employees shall not be such as to interfere with or otherwise adversely impact on the operations of the Company, the responsibility for which resides with the Union and that officer in accordance with Company procedures.
(c) In the event of a breach of this sub-clause, the Company may act to formally revoke a right of entry granted under this clause by first discussing its intention to do so with the Union's National Secretary. Where the Company formally revokes an officer's right of entry in writing to the Union's National Secretary, the relevant provisions of the Act shall then apply in respect of the officer concerned. Nothing in this clause prevents the Company from restoring a right of entry under this clause if it sees fit to do so.
9.2.1 Employees of the Company are employed to carry out work for which they are engaged in accordance with their contract of employment and the terms and conditions of this Agreement, the Company recognises the right of the Union to appoint Employees of the Company and the right of such Employees to represent their fellow Employees subject to the provisions of clause 9.2.2.
9.2.2 The Company will allow Employee Representatives absence from their normal duties without loss of pay to represent the interests of their fellow Employees, provided always:
(a) The relevant Union Branch Secretary advises the Company site manager in writing of the appointment of the Employee Representative
(b) Such absence is for bona fide purposes only (e.g. preparation for collective bargaining, address new Employees and unpaid leave as agreed by the Company) and the Employee Representative first obtains agreement from their immediate supervisor, and such permission shall not be unreasonably withheld, of the expected period of absence for the purpose of enabling the supervisor to make alternative work arrangements beforehand.
(c) The subsequent conduct by the Employee Representative or their fellow Employees shall not be such as to interfere with, or otherwise adversely impact on, the operations of the Company.
(d) In the event of a breach of this sub-clause, the Company may act to formally revoke the right of an Employee Representative to absence from normal duties with pay, but not the right of representation, by first discussing its intentions with the relevant Union Branch Secretary.
(e) Where an Employee Representative's right to absence from normal duties with pay under this sub-clause has been formally revoked by the Company in writing to the Employee concerned and the Union, the Employee Representative may only leave his/her workplace under conditions determined by the Company. Nothing in this clause prevents the Company from restoring an Employee Representative's right to absence from normal duties with pay under this subclause if it sees fit to do so.
9.3.1 The Company recognises that Employees may need to meet in relation to issues concerning the workplace or related issues. Subject to reasonable prior advice to the site manager by an Employee Representative, Employees may use Company premises for such purposes provided the meeting is conducted in a rostered break from actual work such as meal times and provided also the meeting does not extend into actual working time, the responsibility for which rests with that Employee Representative.
9.3.2 Subject to bona fide conditions determined by the site manager, such meetings may extend beyond the rostered break provided that prior request for such is made by an Employee Representative and not otherwise and such extension shall not be unreasonably refused.
9.4.1 The Company recognises that its Employees have a right (subject to appropriate notice being provided to the Company and then subject to the Company's approval and such approval will not be unreasonably withheld) to participate in the affairs of the Union through its internal processes and through this Agreement the Union and its officers and members being Employees of the Company recognise their obligation to minimise disruption to Company operations in so doing.
9.4.2 Where the Union requests meetings of its members, Employees shall be entitled to attend such meetings without loss of pay provided the following provisions apply on an annual basis:
(a) Two Union meetings off site up to 4 hours duration. Employees working on the day shift shall be permitted to leave their designated point of work 30 minutes prior to the commencement time of the meeting, subject to working through the first rest break. The conclusion of such meetings shall be 30 minutes prior to the nominal evening shift starting time in each designated port.
(b) In addition to the above, Employees shall be entitled to attend 3 yard meetings per annum of up to 2 hours duration at a time to be agreed by the Company. If the yard meeting is held offsite, there shall be no consideration given to travel time.
(c) Nothing in the above mentioned shall prevent meetings being conducted at different times following agreement between the parties.
(d) The Union shall provide the Company with a written request for meetings specified in 9.4.2 (a) at least 21 days prior to such a proposed meeting to allow the Company to discuss logistical arrangements with the Union and plan operations accordingly and to mutually agree a date and time. The Company shall reply to such a request within 48 hours of receipt of the request.
(e) Where an unforeseen operational difficulty or emergency arises subsequent to arrangements being made in accordance with 1.1(d). Company advises the relevant Union Branch Secretary in writing setting out the details of the unforeseen operational difficulty or emergency, the Union will make all necessary arrangements to ensure sufficient, qualified Employees remain or are provided to undertake any work required in respect of that unforeseen operational difficulty or emergency.
(f) Entitlement to pay under this sub-clause may only continue subject to attendance by the Employee at such meetings, proof of which if required. Responsibility for providing proof resides with the Employee concerned.
(g) In the event of a breach of this clause or of 9.3, the Company without limitation may act to revoke the right of an Employee to continue their right to pay whilst attending Union meetings under the provisions of this clause by also advising its intentions to the Union National Secretary.
(h) Subject to the abovementioned procedures being followed, the Company may authorise further meetings of Employees to deal with Company related matters.
Where the Company exercises its rights to revoke an entitlement under this clause and the Union disagrees with that decision, subject to there being no stoppage of work as a result of the decision of the Company, the Union may refer the matter in dispute to FWC for conciliation and arbitration if necessary."
[10] In relation to DP World's contention that clause 9.1.1 can be contrasted with other provisions of the Agreement which specifically confer an entitlement upon employees to be represented by the Union, those provisions are said to be clauses 21.7.5 and 21.9.3, clauses 28.2.2 and 28.3, and clauses 29.2.2, 29.2.3 and 29.2.5. Clauses 21.7 and 21.9 set out the processes and procedures for dealing with Health and Safety Issues and Incidents. Relevantly, clauses 21.7.5 and 21.9.3 provide as follows:
"21.7.5 Employees have the right at any stage of the processes described herein to be represented by a Union official however this does not preclude the continuation of operations/work. The Company will continue to recognise that a HSR or employee nominated safety representative may participate in the process.
21.9.3 As set out above, Employees have the right at any stage of the process outlined in this clause to be represented by a Union official. However, the unavailability or absence of a Union Official shall not unreasonably delay the resolution of a safety issue or incident, exploration of alternative solutions, conducting investigations or a return to work."
[11] Clauses 28 sets out the personal grievance procedures by which employees may raise with the company a complaint in relation to being passed over for promotion or training opportunity or action taken by the company which is unjustifiable. Relevantly, clauses 28.2.2 and 28.3 provide as follows:
"28.2.2 Management shall reconsider all aspects of the case and, if requested, give the applicant and any Union representative he/she chooses the opportunity to put his/her case personally.
28.3 In the case of a grievance described in 28.1.2, the Employee allegedly aggrieved, or his/her Union representative may give notice to management of his/her concern within 30 days of the action being taken or advice being given to the individual, whichever is the latter. In the event that the concern cannot immediately be alleviated by management, depending on the nature of the alleged grievance, one or more of the following options shall be adopted as a means of its resolution:
28.3.1 Discussions between management and Union representative;
28.3.2 Reference to a mutually agreed conciliator/arbitrator.
[12] Clause 29 contains the Dispute Resolution Procedure under the Agreement. Clauses 29.2.2 and 29.2.3 deal with employee's representation in Step 1 Site Based Discussions and clause 29.2.5 deals with employee's representation in Step 2 National Level Discussions. Relevantly, these clauses provide that:
"29.2.2 If the dispute is not resolved, the parties will arrange further discussions including a meeting on site involving more senior levels of management, Employee Representatives and/or Union officials. In advance of this meeting the nature of the dispute must be particularised and must contain desired resolution provided in writing.
29.2.3 If the dispute, clearly identified, arises in accordance with this clause within a representative body such as an ERC meeting Step 1 in the process will be considered to have been fulfilled.
29.2.5 If the dispute arises in accordance with this clause within a higher representative body such as a National EBA review then Step 2 in the process will be considered to have been fulfilled."
[13] Directions were issued requiring that the parties file and serve written outlines of submissions and statements of evidence outlining the evidence of each witness to be called at the hearing. DP World's material was also required to respond to the MUA's material, and the MUA was directed to provide any further material in reply. All material was required to be filed and served prior to the hearing and the Directions stated that witness statements were designed to take the place of evidence-in-chief and that leave must be sought at the hearing to adduce further evidence-in-chief.
[14] A hearing was conducted by video conference on 4 October 2022. Permission was granted for DP World to be legally represented on the basis that I was satisfied that the matter is complex, as it involves the proper construction of an enterprise agreement, and allowing DP World to be legally represented would enable the matter to be dealt with more efficiently. At the hearing, the MUA was represented its National Legal Officer, Mr K Bond and DP World was represented by Mr S Crilly of Seyfarth Shaw Australia.
[17] Mr Cope was not required for cross-examination and his statement was admitted into evidence without objection. Other witnesses gave their evidence by video and were cross-examined.
Approach to construction of enterprise agreements
"1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(ii) the disputed provision's place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."
"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); 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 (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). 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: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J)." (citation omitted)
"I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken however, to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue."[18]
"If the presumption of consistent use of terminology is so weak in legislative drafting, it must be even weaker in the context of a Certified Agreement. Typically such agreements are the product of hard negotiation, in which the wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are often transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings."
[24] I have applied these principles in determining the matters in dispute.
[25] Mr McLennan is an MUA delegate and a long-standing employee of DP World in Brisbane, since about 2000. From 2000 to 2021, Mr McLennan was an elected representative on the Employee Representative Committee (ERC). He was also a member of the MUA committee for the negotiation of Part A of the Agreements in 2008, 2011, 2016 and 2020. Mr McLennan said that DP World has been conducting one-on-one sessions with employees since about 2012 or 2013. During those sessions, an employee may be reviewed for their crane rate performance and receive a performance rating out of 100. However, over the years, he was of the view that the sessions have morphed from giving employees detailed feedback to "merely showing employees a pre-prepared report containing supposed quotes from unnamed managers suggesting, for example, that an employee was not working hard, or fast enough, and that the employee had a bad attitude and complained too much at Toolbox Meetings." Further, Mr McLennan stated that DP World refuses to provide employees with a copy of the pre-prepared reports.
[26] In about 2016, Mr McLennan received reports from various employees that they were criticised during one-on-one sessions about matters such as "being too lazy, taking too many toilet breaks, putting too many machines out, and not working fast enough" and the employees felt that the one-on-one sessions "were an awful experience in which they felt bullied and fearful that they were being targeted for future disciplinary action." Under cross-examination, Mr McLennan accepted that the present proceedings are the first in which a dispute has been notified to the Commission in relation to the one-on-one sessions. Mr McLennan also said that it is a concern that part of the process of the one-on-one meetings is that employees are not allowed to take a copy or a photo of their review report making it difficult to pursue a grievance.
[27] According to Mr McLennan, DP World does not carry out one-on-one meetings annually, or even regularly. He stated that he can only remember attending about 5 one-on-one sessions since being employed by DP World in about 2000. He recalled in 2020, DP World missed his one-on-one meeting and subsequently required him to attend a one-on-one session about 4 months later than when he was due to have it. Mr McLennan stated that DP World does not allow employees to have Union delegates or officers represent or support the employees in one-on-one sessions and that he had verbally challenged this with management on numerous occasions. Further, Mr McLennan said that he is aware that employees of DP World at Fremantle, Melbourne and Sydney are not required to attend one-on-one meetings.
[28] Under cross-examination, Mr McLennan was asked about Mr Eadie's evidence that Mr McLennan had attended at least 8 one-on-one meetings since 2010. Mr McLennan variously said that he could not recall when the meetings started, initially they were very basic, and morphed from scores being provided to comments (some derogatory) about performance, in 2016 - 2017. In response to the proposition that he had attended a one-on-one meeting every year from 2016 - 2021, Mr McLennan said that he would have to accept this but would need to check his employee records to verify. Mr McLennan also said that to the best of his knowledge the statement that such meetings were not conducted regularly was correct and that there were multiple positions from various employees that he had spoken to about how many they had attended and when the meetings started.
[29] In 2016, when Mr McLennan was asked to attend a one-on-one feedback session, Mr McLennan informed DP World that he wanted a Union representative to be present. According to Mr McLennan, the Operations Superintendent for DP World, Mr Scott Eadie, replied to the effect of "It's not a good idea to challenge this, just have the one-on-one meeting." Mr McLennan said he felt uncomfortable not having a Union Delegate present and refused to participate in the one-on-one session without Union representation. He then raised a dispute under the dispute resolution procedure in the Agreement, alleging that DP World's refusal to allow him to be represented by the Union was in contravention of clause 9 of the Agreement.
[30] On 23 and 24 August 2016, Mr McLennan emailed MUA officials informing them that DP World was taking disciplinary action against him for his failure to attend one-on-one sessions in the absence of a Union representative. In the emails, Mr McLennan also said that DP World maintained the position that clause 9 did not apply to one-on-one sessions or permit employees to have Union representation. It was also stated by Mr McLennan that DP World had indicated that one-on-one feedback sessions would be conducted every 6 month and records of the sessions would be placed on the employee's file to be used as basis for considering promotion. Mr McLennan also expressed the view that the one-on-one sessions were "another tool in the bosses' bag to individualize the workforce and de-unionize".
[31] Mr McLennan stated that he received a written warning for his failure to attend the one-on-one meeting and that it is common knowledge amongst his co-workers that he was disciplined for "requesting to have a delegate present at the one-on-one meetings". Mr McLennan said he is aware that other employees had also had their requests for Union presence in the sessions denied, but those employees were "scared to push the issue for fear of disciplinary action taken against them". As such, as far as Mr McLennan is aware, no other employee has outright refused to attend a one-on-one meeting without Union representation.
[32] Mr McLennan expressed the view that when employees receive negative feedback during one-on-one meetings, for example, where an employee is told that they need to lift their crane rate, DP World made no effort to train, improve or help employees to enable them to achieve a better rate. He said he is aware that safety incidents have occurred because of employees driving faster in order to get their rates up after receiving negative feedback. Under cross-examination, Mr McLennan agreed that the Agreement provides at Part A Schedule 2, for selection criteria in relation to who gets trained when training is available. In relation to the safety incidents referred to in his evidence, Mr McLennan accepted that he did not contact the Queensland Safety Regulator about such incidents, notwithstanding that he was a member of the Site Safety Committee. Mr McLennan said that he has never been a Health and Safety Representative (HSR) and was off the Safety Committee before there were HSRs voted into the workplace. Mr McLennan said he did not speak to a HSR about these safety incidents other than to state that there were multiple times where there was no HSR on the shift or it was 10 minutes to the end of a midnight shift, and he could not be expected to ring the HSR then.
[33] In relation to the bargaining for the current Agreement, Mr McLennan attended a meeting with representatives from both the MUA and DP World on 12 September 2017. At the meeting, Mr McLennan said that the MUA expressed its opposition to one-on-one sessions and raised several concerns, including the ability of DP World to use the feedback for disciplinary actions and the flaws in scoring and feedback. On 7 December 2017, an ERC meeting, attended by Mr McLennan, Mr Eadie and others, was held in which the issue of one-on-one sessions was discussed. Mr McLennan said that the ERC pointed out that "a majority of employees at DP World did not support the process" but DP World maintained its position that those sessions would continue to be held and that it was a matter outside of the Agreement. Mr McLennan noted that "in the current Agreement, and all previous iterations of the Agreement, there has never been an agreement between the Union and DP World in relation to Union representation of employees at one-on-one meetings."
[34] Mr McLennan stated that there is significant opposition in the workforce to DP World's position of prohibiting Union representation at one-on-one meetings. In approximately 2017 or 2018, Mr McLennan recounted that a survey of members was conducted by the ERC on how employees felt about certain issues, including the installation of cameras and the one-on-one representation issue. It is said that about 94% of those who responded to the survey were in favour of having a Delegate in the one-on-one meetings. According to Mr McLennan, the survey data was presented to DP World management, but they refused to accept the survey and accused the ERC of doctoring the results.
[36] Mr Evans is the Divisional Assistant National Secretary for the MUA which represents the industrial interests of employees who are engaged in stevedoring operations throughout Australia. Mr Evans has been involved in enterprise agreement negotiation with DP World as a delegate and official since 2001 and in various industrial matters that have arisen over the years at DP World.
[37] Mr Evans gave evidence about the discussions between the MUA and DP World over the issue of Union representation in one-on-one sessions during the negotiation of Part A of the Agreement. Mr Evan said that in February 2017, the MUA Part A committee attended a meeting with DP World and the position taken by the MUA was that a Union delegate or official should be present as a support person during one-on-one sessions. Minutes of the meeting were taken respectively by the MUA and DP World. On 11 September 2017, the MUA sent DP World a list of outstanding issues for further discussion at a meeting on 12 September 2017 and included in the list was the ongoing issue of one-on-one feedback session. The issue of representation in one-on-one sessions remained a source of disagreement. Mr Evans stated that the Union has never agreed to one-on-one performance reviews at any DP World site without employees having access to representation if they so choose.
[38] Mr Evans stated that the representation issue in one-on-one sessions has been a subject of dispute at Fremantle and Sydney where the outcome was that DP World withdrew the one-on-one review sessions; the issue was also disputed in Melbourne resulting in employees being allowed representation if they elected; and similarly, the issue has also been subject to dispute in Brisbane, even though the matter had not previously been escalated to arbitration at any DP World site. Mr Evans commented that any one-on-one sessions that had occurred in the past, did not occur on a regular basis, were not provided for in any workplace policy, and were not mentioned in the Agreement.
[39] In relation to the present dispute at the Brisbane terminal, Mr Evans said that DP World underwent a significant structural change in 2013 with 33% of the workforce being made redundant. Mr Evans observed that employees felt incredibly vulnerable at that time and desperate to keep their employment. It was within this timeframe where DP World introduced one-on-one sessions in Brisbane. Mr Evans said the employees did not agree to that workplace change but expressed concerns that they may put their employment at risk if they were to raise the issue with management. According to Mr Evans, the warning issued to Mr McLennan, contributed to the fear of declining to attend one-on-one meetings without Union representation.
[40] In Mr Evan's view, the presence of a support person would not hinder the Respondent's ability to provide feedback as outlined in the Bulletin issued on 11 August 2021. However, denying the presence of a support person to an Employee is said to deny the employees a fair and transparent feedback process.
[41] Under cross-examination, Mr Evans agreed that he has never been an official of the Queensland Branch of the MUA but maintained that while he has not regularly visited the Brisbane Terminal, he has been there in his role as National lead negotiator for Part A of the Agreement. Mr Evans also said that he has a direct line of contact with Delegates at the Brisbane terminal on a day-to-day basis. Mr Evens was not aware that the one-on-one meetings in Brisbane started in 2010. Mr Evans maintained that refusing employees the right to have a representative at a one-on-one meeting denied employees a fair and transparent process on the basis that there may be two managers present and that even if there was only one manager present, a statement that was made at the meeting could be denied. Mr Evans also pointed to emails appended to Mr Eadie's statement, where he had stated to management of the Respondent that they should remind the VSEs that the scoring for their promotions is upcoming and said that this is a "threatening undertone".
[42] In response to the proposition that the MUA objects to employees meeting individually with the Company without a Union representative present, Mr Evans said that the MUA objects to the Company saying that when an employee requests representation, they cannot have it. Mr Evans also rejected the proposition that the MUA's view is that the Company is attempting to de-unionise the workforce and said that it is more about intimidating workers without their right to representation.
[44] The MUA submits that it has consistently taken the position that clause 9 of the Agreement permits Union officers or delegates to represent employees in one-on-one feedback sessions. The MUA said that the language of the Agreement could not be more clear or unambiguous. Clause 9.1.1 explicitly states that "employees may be represented by the Union and its officers" in "matters pertaining to the employment relationship between the Company and its Employees". The Bulletin issued by DP World to its employees indicated that one-on-one feedback sessions are designed to "provide employees with feedback in the areas of Performance, Attitude, Communication and Safety" These matters are said to be "indisputably fundamental to any employee-employer relationship" and the one-on-one feedback sessions accordingly involve matters pertaining to the employment relationship. The MUA stated that the plain language of the Agreement compels a conclusion that clause 9 permits employees to be represented by the Union in one-on-one feedback sessions.
[45] With respect to the one-on-one feedback sessions, the MUA submitted they are not the type of "traditional feedback sessions" whereby employees and their supervisors sit down and engage in constructive discussions in relation to the employee's performance, concerns and satisfaction. The MUA stated that according to reports from its members, the Operations Managers at the meetings "did nothing more than show employees a pre-prepared report containing supposed quotes from unnamed managers suggesting that the employee was not working hard, or fast enough and that the employee had a bad attitude and complained too much at Toolbox Meetings". Toolbox Meetings are meetings with the workforce that occur prior to scheduled shifts in which employees discuss safety issues and raise other concerns. The MUA asserted that, despite requesting copies of the pre-prepared reports from DP World, the Operations Managers consistently refused such requests.
[46] Further, the MUA stated that during the one-on-one feedback sessions, employees would be presented with a statistical analysis of the speed at which they performed various tasks associated with their role and the Operations Managers would intimate that if the speed of the employee's performance was below the company average or if the employee did not improve their performance, the employee could be subject to future disciplinary action. The MUA asserted that reports from the employees were that they felt "bullied into prioritising working fast over working safe". As such, the MUA said that it is important for employees to be represented in these sessions and it has consistently challenged attempts by DP World to hold one-on-one sessions with members without affording them their right to Union representation.
[47] As to the historical context in respect of the one-on-one feedback sessions, the MUA stated that during the bargaining for a new enterprise agreement in 2016 and 2017, the Union Part A Committee members met with DP World senior managers on 22 February 2017 for the negotiation of Part A of the Agreement. At the meeting, the Union adopted the position that a Union delegate or official should be entitled to support employees at one-on-one meetings. The MUA noted that while the parties did not resolve the issue during enterprise bargaining, the attempt to implement one-on-one meetings in Fremantle was eventually withdrawn by DP World at an Employee Representative Committee meeting held on 13 February 2018 and it has never conducted any such meetings in Fremantle. Similarly, the MUA stated that attempts were also made by DP World to introduce one-on-one meetings at the Ports of Sydney and Melbourne but through the respective Site Committees, the workforces rejected the introduction of one-on-one feedback sessions without the presence of a Union delegate.
[48] The MUA said that Mr McLennan received a written warning from DP World in 2016 for refusing to attend a one-on-one feedback session without the presence of a Union representative. At that time, Mr McLennan was said to have placed the matter in dispute under the Agreement contending that clause 9 entitled him to representation by the Union in one-on-one sessions. However, around that time, the MUA and DP World were engaging in bargaining for a new enterprise agreement and the Union decided not to escalate the dispute to the Commission and instead sought to resolve the issue through enterprise bargaining. The MUA said that throughout the bargaining process, notwithstanding that the MUA strongly asserted that clause 9 of the Agreement entitles the employees to be represented by the Union in one-on-one feedback sessions, the MUA and DP World were unable to agree on the applicability of clause 9 to one-on-one sessions.
[49] Brisbane employees at DP World were also said to be keenly aware that DP World had taken disciplinary action against Mr McLennan when he refused to attend his one-on-one meeting without union representation. The MUA submitted that this awareness, combined with the implicit threats that employees had received during previous meetings, meant that individual employees were generally too fearful to press the issue with DP World, until they approached the Union as a group in 2021 after learning that DP World intended to again commence one-on-one meetings and requested that the MUA to place the matter in dispute. That request resulted in the present dispute.
[50] In response to DP World's assertion that clause 9, in its terms, do not apply to one-on-one feedback sessions and the issue is not one which "the parties have over the long history of bargaining sought to regulate", the MUA submitted that the history of bargaining in 2016 and 2017, as outlined above, demonstrated that the parties had extensive negotiations with respect to the Union's position that clause 9 of the agreement entitles employees to have Union representation at one-on-one sessions. The MUA further submitted that the fact that DP World did not accept the Union's interpretation of clause 9 in the context of the one-on-one sessions did not mean the parties did not seek to regulate the issue. In addition, the MUA stated that the decision by DP World to abandon its efforts to introduce these sessions at its operations in Fremantle, Sydney and Melbourne, as a result of the refusal by MUA members to attend these sessions without Union representation, "establishes that the parties have extensively bargained over the issue throughout the country".
"...managerial prerogative in relation to employees (including the employer's right to make and vary policies that employees are required to observe) is subject to legal constraints. It may be constrained by statute or the terms of an award. It may also be constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make. For example, an enterprise agreement might provide that all work must be carried out in accordance with a roster pattern specified in the agreement. In that example, unless the agreement also confers a right on the employer to vary the roster pattern, the employer has bound itself not to require employees to work a different roster pattern. In particular, an employer can bind itself in a statutory collective agreement not to change a policy or policies without, for example, the agreement of a relevant union or a majority of employees."
[52] With reference to the above proposition, DP World submits that DP World, having bargained away its rights to refuse Union representation in meetings that involve matters relating to the employment relationship, does not enjoy a managerial prerogative to implement a policy that, on its face, violates a clear term of the Agreement. In addition, the MUA rejected the assertion by DP World that the one-on-one feedback session have, for more than a decade, been held whereby managers met "at least once per year with each employee on an individual basis" and there has never been any request from the employees for Union representative to be present. In this respect, the MUA said that the fact that Mr McLennan put into dispute the company's refusal to grant his request for Union representation at a one-on-one meeting in 2016, and that the MUA and DP World engaged in extensive bargaining over the issue in 2016 and 2017 suggests that the assertion by DP World is at best "misleading" or "patently false".
[53] The MUA stated that the only reason that the matter has not been pursued until now is because, except for Mr McLennan, no DP World employee has put the matter in dispute. The MUA pursues disputes on behalf of employees only when a member raises a dispute with the company. The fact that members have not disputed the matter until now should in no way be seen as evidence that employees were content with attending one-on-one sessions without Union representation. In reply submissions, in response to DP World's assertion that the Union is attempting to "simply pluck fragments of a clause out of context", the MUA submitted a reading of the entire clause 9.1 and the surrounding context, does not detract from the ordinary meaning of the words - an officer of the Union shall be granted right of entry Company operations "...to represent Employees in other matters pertaining to the employment relationship between the Company and its employees". Further, the MUA stated that what has conveniently been omitted by DP World is the overarching purpose of the provisions of Clause 9, namely, "Employee Representation".
[54] With respect to DP World's contention that clause 9.1 does not grant employees any rights but is rather "expressed as creating rights and obligations as between DP World and the Union only", the MUA contends that the proffered interpretation of clause 9.1 is belied by its unambiguous words: "The Company acknowledges Employees may be represented by the Union and its officers appointed in accordance with the Union's rules." The MUA expressed the view that how DP World could argue that the clause does not grant a right to employees to be represented by the Union in the circumstances set out in the clause when its clear language states exactly the opposite is "baffling".
[55] Next, DP World argues that the clause requires DP World to allow the Union entry to its sites solely for the purpose of representing employees in matters in which Union representation is explicitly recognised in other clauses contained in the agreement (such as, health and safety issues, the personal grievance procedure, and the dispute resolution process), and when "representation is otherwise allowed by convention or prudent practice". The MUA submits that such a narrow interpretation of the clause would render it superfluous. Had the parties intended the clause to mean nothing more than that the Union must be granted entry to represent employees in finite circumstances, the parties would undoubtedly have specifically identified those circumstances in the agreement.
[56] In addition, the MUA submits that the parties did not attempt to define each of the circumstances in which employees are entitled to Union representation suggests that, in agreeing that employees are entitled to Union representation in "matters pertaining to the employment relationship between the Company and its Employees", the parties have left open for interpretation what constitutes a matter "pertaining to the employment relationship" and to answer that question, it is necessary to consider the context of the circumstances in which employees seek Union representation.
[57] Mr McLennan's evidence is said to show that one-on-one meetings routinely include accusations against employees of deficient performance that could lead to disciplinary actions, and criticisms that cause employees to prioritise working fast over working safe. The meetings are quite clearly "matters pertaining to the employment relationship" and accordingly, clause 9.1 of the Agreement plainly permits employees to be represented by a Union Officer or Delegate at such meetings.
[58] Next, DP World contends that the word "employees" in the clause does not give individual employees a right of representation and that interpreting the Agreement as allowing an employee to be represented by the Union at one-on-one meetings would lead to employees being able to request Union representation in "any discussion between a supervisor or manager with an employee". The MUA rejects this contention. The MUA noted that it is acknowledged by DP World that it routinely grants employee requests for Union representation in a myriad of matters, including disciplinary matters and employee grievances. Further, the question for determination as formulated in the present matter is purposely narrow as it relates only to "one-on-one employee feedback sessions" for the purposes of providing "employees with feedback in the areas of Performance, Attitude, communication and Safety". An affirmative answer to that question would not set any sort of precedent that would lead to employees being entitled to Union representation in the absurd hypothetical ways as put forward by DP World.
[59] In response to DP World's submission that the MUA's construction of the clause would lead to the clause being an objectionable term, the MUA contended that this is a "red herring" and the clause entitles "employees" to Union representation and not just Union members. It is thus said that DP World could hardly be accused of unlawful discrimination unless a non-member sought Union representation at a one-on-one meeting and DP World refused such representation on the basis that the employee was not a member of the MUA. If the MUA refused the employee's request to represent them at a one-on-one meeting because they elected not to join the Union, that fact could hardly give rise to a discrimination claim against DP World.
[60] In summary, the MUA stated that DP World clearly does not use one-on-one meetings to simply provide employees with "feedback on areas of performance, attitude, communication and safety" but rather, the meetings are designed to "threaten employees, both explicitly and implicitly, with disciplinary action should they fail to meet arbitrary performance standards, and to strongly encourage employees to choose working fast over working safe." In this respect, the MUA said that DP World has taken disciplinary action against at least two of its employees - Mr Mark McLennan and Mr Craig Hancock - for refusing to attend the meetings without Union representation. The MUA stated that it does not know how many other employees may have similarly been disciplined by DP World for demanding their rights under the Agreement. In relation to the construction of the clause, the MUA submits that the meetings undoubtedly involve "matters pertaining to the employment relationship between the Company and its Employees" and accordingly, the clear and unambiguous language contained in the Clause 9.1 provides that "employees may be represented by the Union and its officers" at such meetings.
[61] Evidence for DP World was given by Mr Eadie, who is currently the General Manager Operations for DP World Sydney Pty Ltd (a related entity) and was previously the Stevedoring Manager for DP World Brisbane Pty Ltd between 2015 and 2021. Mr Eadie said that in his previous role, he was responsible for managing stevedoring operations at the Brisbane terminal (in various capacities), including holding one-on-one meetings with employees. Mr Eadie recalled that the idea of having one-on-one meetings was initially floated by DP World's management in 2009. The idea was to provide employees with an opportunity, in an informal setting, to discuss their progress and performance, particularly when they are looking to be promoted.
[62] Mr Eadie said he had been involved in conducting the one-on-one meetings which are subject of this dispute since they were first rolled out by DP World in early 2010. The one-on-one meetings were subject to further discussion with the Employee Representative Committee (ERC) at around that time. Mr Eadie tendered minutes of ERC meeting on 5 May 2009 where the introduction of the one-one-one meetings was discussed. The minutes indicate that the purpose of the meetings is not a disciplinary process but a tool to provide constructive feedback. Under cross-examination, Mr Eadie agreed that the minutes indicated that the one-on-one meetings (referred to in the minutes as "PMP performance feedback process" had not commenced on 5 May 2009 and that he had not attended the meeting on that date and was relying on the minutes he tendered in relation to what was discussed.
[63] Mr Eadie said that he delivered the very first one-on-one meeting in "early 2010". A copy of the instructions provided to supervisors and a blank form, headed "One-on-One FSE Feedback, Coaching Planner & Discussion Record", which was used at the time, were tendered into evidence. The instructions, appended to an email dated 22 November 2010, sent to supervisors by Mr Muscat, the Respondent's Manager Human Resources, noted the following:
Attached FYI is the assessment template form for you to document your discussions as well as agreed final assessments you made collectively.
Please ensure that the assessments are kept confidential as employees should only be aware of their own performances not others. It is not appropriate that this list is communicated in a public forum. Please ensure that whoever you have the discussion with, that the assessment on the sheet is what you communicate (not a different response) otherwise it will de-rail the process in terms of consistency.
...I understand the process will one on one between yourself and the employee and no support person will be allowed. It is not a disciplinary discussion and this was explained to the ERC. If they refuse to attend without a support person then you should not go ahead with the meeting and advise Glenn and Jamie as a different meeting will no doubt take place."[25]
[64] Under cross-examination Mr Eadie agreed that the email contained instructions provided to supervisors and the form which was used at the time. Mr Eadie also agreed that November 2010 was late 2010 not "early 2010". Further, Mr Eadie agreed that he had not provided any evidence in the form of one-on-one meeting feed-back forms or records dated 2010 or 2011.
[66] Mr Eadie said that the form has changed over the years. Employees are not provided with a copy of the form other than during the meeting, because he recalled, in or around 2012 at an ERC meeting, a Union Representative or Official said to him words to the effect of: "We'll just plaster those performance review forms all over the walls so there are no secrets." Mr Eadie's understanding is that at the time when the Union Representative made the comment, employees were actively discouraged from having any conversation with management on their own - the MUA insisted that employees were accompanied by a union delegate for even the simplest of exchanges. Since then, Mr Eadie said that DP World has ensured that the forms are kept private.
[67] Under cross-examination, Mr Eadie was taken to the email from Mr Muscat dated 22 November 2010, appended to his witness statement, which stressed that the one-on-one process was to be confidential. In response to the proposition that this indicated that the Company never intended to provide feedback forms to employees, Mr Eadie said that some were given to employees early in the piece, but this was done inadvertently, and the practice was "stamped out quite quickly." Mr Eadie said that he did not provide minutes of the ERC meeting where the comment about plastering performance review forms all over the walls was made, because there were no minutes taken of the meeting. Mr Eadie also agreed under cross-examination that employees were permitted to have a representative present at meetings with managers in 2012 and said that employees often just showed up with a representative. In response to the proposition that these meetings were about matters pertaining to the relationship between employers and employees, Mr Eadie said that some meetings could have been about operational matters.
[68] Mr Eadie gave evidence that a bulletin was put out to employees each year the process had been undertaken. Initially DP World only conducted meetings with fixed salary employees (FSEs), who are rostered employees and tend to be the longer-serving and more highly skilled cohort. From around 2011, DP World also conducted meetings with variable salary employees (VSEs), who work irregularly and provide the majority of lesser-skilled work, though many of them do have additional skills that they perform from time to time.
[69] In Mr Eadie's experience, one-on-one meetings take around five to ten minutes and are conducted informally with each employee on shift whenever they are available. Mr Eadie recalled that the initial goal was to have two meetings a year with employees, however this was
not always possible given workloads and various other activities happening at the Terminal. There are around 200 operations employees in Brisbane and 600 in Sydney, and meeting with
each employee on an individual basis is a significant endeavour. If a support person is added to this process, Mr Eadie was of the view that this would potentially make the process untenable from a timing perspective.
[70] Over the years, Mr Eadie stated that the process for the one-on-one meetings has been refined and the aim is to provide employees with qualitative and quantitative metrics of their performance. When Mr Eadie took over management of the process from around 2015, he said that he aimed to tie it into the selection criteria for access to training and promotion which were set out in the applicable enterprise agreement from time to time. In addition to performance KPIs, a ranking system which mirrors the Performance, Behaviour and Safety criteria in the Agreement was also developed. In addition to the results of the Selection Criteria questions, Mr Eadie said that the metrics included are:
(a) objective data taken from the type of machinery being operated, for example, an employee's moves per hour (which can then be compared with the average of all employees, and the employees previous result); and
(b) supervisor comments in relation to work ethic and attitude. These are gathered from all relevant supervisors (usually around 5 or 6 supervisors) and provided to the employees.
(c) These comments have been provided on a de-identified basis (and in some years only the consensus view of the majority of supervisors was provided). The reason for this is that often there are a range of views held by supervisors in relation to an employee. This is why it is important that comments are collected from a range of supervisors. The purpose of the data being de-identified was to avoid a Supervisor having to provide feedback to an employee which may have differed from his own written comments, and Mr Eadie was concerned that this would take away from the purpose of the meetings.
[71] Based on the above metrics, Mr Eadie stated the one-on-one meetings are an opportunity for employees to receive regular feedback on their performance. It is not a disciplinary process, and this is something which has been made clear to employees and as a result, it has also been made clear that there is no entitlement to a support person in the meetings. In Mr Eadie's view, the inclusion of a support person would change the intended tone of the meetings and make them seem more formal. This is said to be important to DP World as the meetings are an opportunity for supervisors and employees to speak freely and provide each other with feedback and Mr Eadie was of the view that the presence of a third-party may have an impact on the sharing of honest opinions and the improvement that may arise from the meetings.
[72] In preparing to give his evidence, Mr Eadie said he had reviewed his records and believes that since 2010 there have been less than 10 one-on-one meetings where a support person attended. This generally occurred when DP World had an inexperienced supervisor who was persuaded to allow this out of hours, for example, on Night Shift. The Support Person in these cases was generally a Union Delegate or representative. Mr Eadie's recollection is that at least one round of meetings was held each year, other than in 2013 and 2014. In 2013-14, DP World Brisbane was in the process of becoming partially automated, with the implementation of Auto Stacking Cranes. This process further led to a resulting variation to the enterprise agreement and a redundancy process. Otherwise, Mr Eadie said that one-on-one meetings have been conducted for 11 years. Under cross-examination Mr Eadie was asked about Mr McLennan's evidence that the meetings were held sporadically and said that while they were not held to a regular timetable, they were generally held annually, other than when there was overlap, except for 2013/14.
[73] Based on his recollection, Mr Eadie expressed the view that the feedback from employees about the process has been generally positive over the years. In this regard, Mr Eadie stated that:
(a) During the entire time he conducted one-on-one meetings at DP World Brisbane, he can recall only four individuals raising concerns with him about the meetings.
(b) Mr Eadie's impression is that most employees have been keen to get their feedback and see their KPIs, and the process has been largely supported by employees who take an interest in performance.
(c) To his knowledge, there has never been a disciplinary outcome arising from poor performance raised in a one-on-one meeting.
(d) The one-on-one meeting process has provided DP World with opportunities to help employees achieve their goals and improve their job satisfaction. For example, in 2018 an employee who was a crane driver and a foreman became quite upset during his one-on-one. He was performing poorly as a crane driver and informed Mr Eadie that he did not want to drive cranes anymore. Me Eadie modified his duties, and he is now a very effective foreman and is much happier.
[74] Mr Eadie noted that the heading of clause 9.1 states it relates to right of entry and that is his understanding of the purpose of the clause. According to Mr Eadie, he was extensively involved in the bargaining of each enterprise agreement that has applied to DP World Brisbane since 2010, including the most recent bargaining round that concluded in early 2021, and Clause 9 has remained unchanged and has not been the subject of any claims by the Union in recent years. After reviewing all the available minutes of ERC meetings from 2010 to 2017, Mr Eadie said that he has not found any reference in relation to the Union formally seeking that employees are able to have a support person/representative present in one-on-one meetings. Nor can he ever recall this matter being put into dispute by the union prior to these proceedings.
[75] Under cross-examination, Mr Eadie confirmed his evidence that he had been extensively involved in enterprise bargaining since 2010 and the MUA had not raised the issue of union representation in recent years. Mr Eadie agreed that notes tendered by Mr Evans indicated that the MUA stated its position at a Part A review meeting in February 2017, that a support person should be present at one-on-ones and performance reviews where this is requested by an employee. Mr Evans said that he was present at the meeting and the matter was raised but said that his response to the earlier question was based on his understanding that it related to enterprise bargaining negotiations.
[76] In relation to the evidence of Mr McLennan and Mr Evans, Mr Eadie's general impression is that they are quite selective in terms of the information they have provided. With respect to Mr Evans' assertion that the Union has never agreed to one-on-one performance reviews at any DP World Australia site without employees having access to representation if they so choose, Mr Eadie said that while he could not recall that the Union has ever agreed in writing to one-on-one meetings occurring without representation, he also could not recall it being the subject of a claim in respect of any enterprise agreement since 2010.
[77] In relation to Mr Evan's evidence that DP World introduced one-on-one meetings in Brisbane in 2013, around the time when DP World made 33% of its Brisbane workforce redundant resulting in employees becoming too afraid to refuse attendance without union representation, Mr Eadie's evidence is that one-on-one meetings have actually been in place since 2010, and were paused in 2013/2014 due to other matters occurring at the time and were never disciplinary in nature.
[78] In relation to Mr McLennan's evidence that one-on-one meetings were sporadic, Mr Eadie said that records confirmed that Mr McLennan participated in one-on-one meetings in at least 2010, 2012, 2016, 2017, 2018, 2019, 2020 and 2021. Mr Eadie disagreed with Mr McLennan's comments that "over the years the meetings have morphed from giving employees detailed feedback, to merely showing employees a pre-prepared report". Mr Eadie said that as outlined in his evidence, it is not the case that there is less detailed feedback provided to employees. Mr Eadie has reviewed various supervisor commentary compilations and confirmed that the examples of negative feedback listed are very much in the minority.
[79] Further, Mr Eadie denied saying to Mr McLennan to the effect that "it's not a good idea to challenge this, just have the one-on-one meeting" when Mr McLennan requested union representation. Mr Eadie said his words were taken out of context. His recollection of the conversation was to the following effect (as part of a broader discussion):
"Mr McLennan: 'I am reluctant to this without a support person'
Mr Eadie: 'A lot of people have already done theirs, without any issue. I don't think you need a support person. I suggest you just come and get it done'."
[80] Mr Eadie also does not recall the matter being placed into dispute by Mr McLennan or the Union. In response to Mr McLennan's comments that no effort was made by DP World to train, improve or help employees achieve better performance rate, Mr Eadie stated that there is an element of truth to Mr McLennan's assertions - as training budgets are tight and the enterprise agreements are restrictive - DP World does what it can to try and support employees so that they can progress to roles they enjoy at work.
[81] In addition, Mr Eadie rejected Mr McLennan's assertion that there is significant opposition in the workforce to DP World's position of prohibiting Union representation at one-on-one meetings. Mr Eadie's experience has been that employees generally have positive feelings about the process. In relation to the ERC's "survey", Mr Eadie's recollection is that:
(a) the survey was comprised of a pile of anonymous questionnaires that were left unattended on a table beside an unsecured cardboard box for at least a week;
(b) Mr Eadie said that a copy of the anonymous questionnaire, located by him, does not include a question that relates to representation;
(c) the survey was comprised of a handwritten sign on the white board above which said words to the effect of: "Tell the Company what you think of their cameras and one-on-ones";
(d) the survey did not have a returning officer;
(e) it was largely focussed on a very acrimonious dispute at the time in relation to use of security cameras; and
(f) the outcome was presented at the ERC meeting in December 2017 but no tally or ballot papers were tabled at that time. The minutes of that ERC meeting indicated that the comment - "ERC believe the majority of employees don't support the process and it does not add any value" - was made without any reference to representation.
[82] Under cross-examination, Mr Eadie accepted that there is nothing unique about the Company's Brisbane operations that would make one-on-one meetings more valuable for employers at the Port of Brisbane than those working in Sydney or Fremantle. In response to the proposition that these meetings were not used at the Ports of Sydney or Fremantle because the employees stood together and refused to participate without Union representation, Mr Eadie said that he was not sure about what occurred at those terminals but believed there was opposition. Mr Eadie was not aware that the Company permits representation at one-on-one meetings in Victoria and said that this was a matter for local management but agreed that the Right of entry clause in the Melbourne Agreement is identical to the clause in the Brisbane Agreement.
[83] In response to the MUA's submission that clause 9.1 explicitly states that "employees may be represented by the Union and its officers" in "matters pertaining to the employment relationship between the Company and its Employees", DP World noted that the MUA did not reproduce the full text of clause 9.1, and that 64 words were omitted from the clause as set out in the MUA's submissions. DP World contended that the interposition of the word "in" between the two quotes was a "sleight of hand" and that the Union cannot simply pluck fragments of a clause out of context and combine them in a way they do not appear in the Agreement so that their literal meanings appear to support the Union's preferred interpretation.
[84] DP World submitted that clause 9.1 is headed "Right of entry of Union Officials" and is plainly a right of entry regime. DP World also submitted that the MUA initially appeared to have recognised this as the Dispute notification stated that "as provided for in clause 9 of the Agreement, the MUA sought to exercise its right of entry to the Respondent's premises during the One-on-Ones". The present case, in DP World's view, has now been re-cast by the MUA possibly to avoid the difficulties attended by such a clause which is "subject to the relevant provisions of the Act".
[85] When clause 9.1 is read in its proper context, DP World submitted that plainly, the two quotes extracted by the MUA from clause 9.1.1 are in fact respectively:
(a) a chapeau which describes the purpose for which the rights of entry in clause 9.1.1 are granted to the Union and its officer; and
(b) the last-named category of purposes for which those rights may be exercised, again by the Union or an officer.
[86] DP World submitted that what clause 9.1.1 does, subject to the FW Act, is to require DP World to allow the Union entry to its sites for particular purposes. Where an employee has a right to be represented under the enterprise agreement, or representation is otherwise allowed by convention or prudent practice (for example, in a "show-cause" meeting), DP World cannot otherwise refuse to admit a union official who would act as such representative. In DP World's view, this does not give employees any rights additional to those elsewhere in the Agreement and clause 9.1.1 is expressed as creating rights and obligations as between DP World and the Union only.
[88] In addition, DP World stated that the omission of the words from clause 9.1.1 is striking considering other provisions in the Agreement which specifically state that employees are entitled to be represented. Those provisions are as follows:
(a) a right to be represented in the process of dealing with health and safety issues or incidents in clauses 21.7.5 and 21.9.3;
(b) the right to have a Union representative in the personal grievance procedure in clauses 28.2.2 and 28.3; and
(c) the right to have a delegate or representative involved in the dispute resolution process in clauses 29.2.2, 29.2.3 and 29.2.5.
[89] DP World submits that the provisions set out above would all be otiose if clause 9.1.1 had the extraordinarily broad application as claimed by the MUA and that the omissions ought to be considered intentional in light of the fact that an enterprise agreement is on its face plainly the product of lengthy negotiation and reflects a careful compromise.
[90] In addition, DP also stated that in the event that the MUA seeks to pivot back to its original position of framing the dispute as one concerning rights of entry, it also does not accept that clause 9.1.1 confers a right of entry for the Union to attend one-on-one sessions. DP World contends that at its highest, it could do so only where employees have a right to be represented or this has otherwise been permitted by DP World, neither of which is said to be the case. Further, DP World stated that because the operation of clause 9.1.1 is "[s]ubject to the relevant provisions of the Act", prima facie the effect of the clause is curtailed to ensure it does not fall foul of ss. 194(f), 481 or 484 of the Act. Relevantly, these provisions of the Act provide as follows:
A term of an enterprise agreement is an unlawful term if it is:
(i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or
(ii) to enter premises to hold discussions of a kind referred to in section 484;
other than in accordance with Part 3‑4 (which deals with right of entry);
"481 Entry to investigate suspected contravention
(1) A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder's organisation:
(a) whose industrial interests the organisation is entitled to represent; and
Note 1: Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)).
Note 2: The FWC may issue an affected member certificate if it is satisfied that a member referred to in this subsection is on the premises (see subsection 520(1)).
Note 3: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.
Note 4: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).
(2) The fair work instrument must apply or have applied to the member.
(3) The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.
Note: A permit holder who seeks to exercise rights under this Part without reasonably suspecting that a contravention has occurred, or is occurring, is liable to be penalised under subsection 503(1) (which deals with misrepresentations about things authorised by this Part)."
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(b) whose industrial interests the permit holder's organisation is entitled to represent; and
Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.
Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).
Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section."
[91] DP World submits that it is trite law that enterprise agreements are not construed in a vacuum divorced from industrial realities. In considering the industrial context and realities, it a related consideration is the consequences the MUA's construction of the Agreement would have in the context of the relevant industrial environment. DP World submits that the MUA's construction of clause 9.1 would entitle an employee to be represented in any discussion with a member of management about any "matters pertaining to the employment relationship between the Company and its employees" and such a construction is "entirely unworkable".
[92] DP World contended that such a construction is "unworkable" because it is extremely broad as any discussion between a supervisor or manager with an employee about anything to do with the employee's employment would attract a right of union representation. Employees would effectively have the right to abstain from being managed on a day-to-day basis, absent that representation. It is submitted that there is evidence that the Union objected on principle to discussions where the Union is not present and a real risk this would occur.
[93] Further, DP World submitted that, absent clear words in the Agreement, the Commission should not accept that there was an objective intention between the parties when making the enterprise agreement to relinquish the possibility of any discussion with employees about their employment, however minor or ad-hoc, without Union representation. It is said that such a construction would require an acceptance that employees have the rights to decline:
(a) to receive day-to-day counselling about their work from a supervisor or manager without the presence of a Union delegate (who might be working on the other side of the terminal) or official (who would probably be off-site and whose availability would be entirely unknown); and
(b) to speak, and instead rely on a Union "representative", in a factual investigation as to whether they or a colleague engaged in misconduct.
[94] DP World contended that this interpretation would lead to "absurd or unjust consequences" and such an interpretation is therefore unlikely to have been intended and should be avoided. DP World further stated that while arguments based on undesirable consequences of a particular construction cannot override the clear words to the contrary, such clear words are nevertheless absent from the present Agreement - the literal meaning of the words of clause 9.1.1 simply do not say what the Union submits they do. At the highest, DP World said, clause 9.1 may be said to indirectly recognise a right to employee representation. However, in determining whether that is the case, proper regard may legitimately be had to the "absurd illogical consequences of the Union's construction".
[95] In addition, DP World argued that if the construction contended by the MUA were correct, the clause would grant employees a right of representation in discussions with managers - but only by the Union - as there is no reference to representation by any other person in the clause. This, DP World said, would render clause 9.1 an "objectionable term" and hence inoperative by virtue of s. 356 of the Act. Section 12 of the Act defines "objectionable term" as follows:
(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;
(c) a contravention of Part 3‑1 (which deals with general protections);
[96] In this respect, DP World submits that under s. 346 in Part 3-1 General Protections, an employer is prohibited from taking adverse action against a person because, among other things, he or she is not a member of an industrial association; or engages or proposes to engage in "industrial activity" within the meaning of ss. 347(a) or (b). One form of "industrial activity" is seeking, or not seeking, to be represented by an industrial association under s. 347(b)(vii). Section 342(1), item 1, column 2, (d) prohibits an employer from taking adverse action against employees by discriminating between an employee and other employees of the employer. It is DP World's contention that the MUA's construction of clause 9.1 would have the effect of denying a representative to one employee and permit one for another solely on the basis of whether the employee has sought to be represented by the Union. It is said that by extension, it would deny rights to employees who are not Union members thereby constituting "an obvious and mandatory form of direct discrimination". As such, if clause 9.1.1 is read as the Union says, then it is of no effect to that extent by virtue of s. 356 of the Act.
[97] As to the assertions by the MUA that one-on-one feedback sessions were not conducted to hold genuine and constructive discussions, DP World said that a theme underlying the Union's submissions and evidentiary material is that a one-on-one meeting with any member of management is an occasion for "intimidation or abuse". DP World considers much of this material to be objectionable and prejudicial, without any attempt by the MUA to justify how it is probative of the correct interpretation of the Agreement. DP World further contends that it is moreover wrong and based on the evidence of one employee, who is an outlier, and a union official based in Western Australia. DP World queries why performance meetings, which are routine in workplaces of "every stripe" around Australia, are objectionable at DP World and contends that the real reason appears to be that the MUA simply objects to any direct engagement with the workforce that it does not get to mediate.
[98] With respect to the issue of whether regard should be had to extrinsic material in approaching the task of construing clause 9.1, DP World submits that the terms of the Agreement are clear and no recourse to extrinsic material is necessary. However, extrinsic material can be considered for the purpose of confirming the ordinary and natural meaning of the clause as proffered by DP World or alternatively in circumstances where the clause is ambiguous. In this respect, DP World submitted that:
(a) It has never agreed that there is a right of representation at one-on-one meetings, including in bargaining for the current Enterprise Agreement.
(b) Clause 9.1 is longstanding and has not been subject to variation (or claims) across a number of bargaining rounds.
(c) "One-on-one" meetings have occurred regularly at Brisbane since 2010, without representation, except where an inexperienced supervisor has been persuaded to depart from normal practice. This would have been known to all concerned at the time the Enterprise Agreement was negotiated and made.
(d) Mr McLennan's comments about the nature and frequency of these meetings is wrong. He participated in them from time to time before 2016 and has attended a one-on-one meeting in every year from 2016 to 2021 - notwithstanding his efforts to delay and avoid them.
(e) The Union cannot rely on its own obstructionism to bootstrap its argument, as it apparently does by claiming the meetings do not occur at other DP World Australia terminals.
[99] DP World stated that, notwithstanding Mr Evans and McLennan's evidence, the supposed right to representation under clause 9.1.1 is a recent invention and there is no evidence of anyone but Mr McLennan invoking it before now. It is said that this is probably because, as noted above, clause 9.1 is a right of entry provision. The extrinsic material is said to be consistent with and tends to confirm DP World's position on the meaning of the Agreement. Alternatively, it demonstrates that any ambiguity ought be resolved in favour of DP World's position.
[100] It is convenient to deal with DP World's arguments in relation to the MUA's construction of the clause, in the order advanced in the Company's written submissions. As pointed out in those submissions, the construction of a disputed term in an enterprise agreement begins with an analysis of the text of that term, and the ordinary meaning of the relevant words. In the present case, the disputed term states that the Company acknowledges employees may be represented by the Union and its officers appointed in accordance with the Union's rules. The clause goes on to state that subject to the relevant provisions of the Act, an officer of the Union shall be granted right of entry into the Company operations at any time, to represent employees of the Company for the purpose of ensuring observance of the Agreement, the Stevedoring Award, an order of the FWC binding on the Union or to represent employees in other matters pertaining to the employment relationship between the Company and its Employees, provided that the requirements in relation to notice and conduct are complied with and subject to the right of the Company to revoke entry in the event of a breach.
[101] The ordinary meaning of the words emphasised above is that the "other matters" in relation to which the Union can represent employees are matters other than those earlier listed in clause 9.1 - observance of the Agreement, the Stevedoring Award or an order of the Commission. The phrase "matters pertaining to the employment relationship" has both an ordinary meaning and a common meaning in the context of dispute resolution terms in enterprise agreements. In the context of dispute settlement terms in enterprise agreements, that phrase is used when it is intended that the application of such terms extends beyond matters arising under the provisions of the agreement or in relation to the NES - the minimum requirements which must be the subject of dispute settlement terms. Further a dispute settlement term must provide for representation of employees - see s. 186(6). The parties who negotiated the Agreement have experience in bargaining and requirements in relation to enterprise agreements, including dispute settlement terms, and must have understood the breadth of the phrase "matters pertaining to the employment relationship" and the context in which it is used in enterprise agreements.
[102] Even if the parties did not have knowledge of the context in which the term matters pertaining to the employment relationship is used in the context of enterprise agreements, the ordinary meaning of the word "pertaining" is relating or applicable to. I agree with the MUA's submission that it is difficult to conceive of a matter that would more closely pertain to the employment relationship than a discussion about matters that are to be the subject of one-on-one discussions described in the communication to employees. These matters were variously said by Mr Eadie to be progress, performance, work ethic and attitude. Mr Eadie also said in his evidence that he intends to tie the one-on-one process to the selection criteria for access to training and promotion, in the Agreement. These matters are integrally linked to the employment relationship and arguably to the provisions of the Agreement in relation to training. It is also clear that matters that are to be the subject of one-on-one discussions will be retained on employment records and that documentation recording the discussion is not provided to employees. As a result, the one-on-one meetings can potentially impact a range of employment matters in the future including matters that are the subject of the Agreement and as a result, the provisions in clause 28 - Personal Grievances and clause 29 - Dispute Resolution.
[103] The Respondent takes issue with the way that the MUA set out the disputed term in its submissions asserting that the phrases "employees may be represented by the Union and its officers in matters pertaining to the employment relationship" are two fragments of the clause which are not adjacent, and that significant parts of the clause are omitted from the paraphrasing of the clause in the MUA's submissions. DP world goes on to contend that the two sets of words extracted by the Union are respectively, a chapeau which describes the purpose for which rights of entry are granted to the Union and the last-named category of purpose for which those rights may be exercised. In my view, that analysis supports the MUA's construction of the Agreement. In short, clause 9.1 grants right of entry to officers of the MUA to represent employees for purposes listed in the clause, which include "matters pertaining to the employment relationship". Accordingly, the chapeau sets out the principle that employees may be represented by the Union, the terms dealing with right of entry provide for how such representation may be achieved and the clause lists the matters which may be the subject of representation. It is significant that the list of matters which may be the subject of representation, is punctuated with the conjunction "or" indicating that they are alternatives and that the intention was to express the final matter in the list in broad terms. It is also notable that the term "represent" is used twice in the list of matters, emphasising that it is representation and not right of entry that is the focus of the clause.
[104] This is further emphasised by the fact that while the disputed clause is under a heading "Right of Entry" and deals with that subject matter, it is a sub-clause of clause 9, which deals generally with "EMPLOYEE REPRESENTATION". The common thread in the subclauses of clause 9, is representation of employees by the Union. In this regard, clause 9.2 deals with the right of the MUA to appoint employee representatives for the purpose of representing their fellow employees, and the rights of representatives to have time off work for that purpose. Clause 9.3 provides for employee meetings with representatives to discuss issues concerning the workplace or related issues. Clause 9.4 deals with the subject of Union meetings and the rights of employees to participate in the affairs of the Union. Clause 9 also specifies obligations imposed on employees in return for these rights and various provisions for DP World to revoke rights if obligations are not met. Accordingly, I do not accept that the disputed clause deals principally with right of entry or that it creates rights and obligations between the Company and the Union only. The clause is part of a broader provision dealing with representation of employees and commences with a statement that the Company acknowledges that employees may be represented by the Union and its officers in relation to the listed matters. Viewed in the context of clause 9 as a whole, the entry right provided by clause 9.1, is a means by which employees may exercise their right to be represented.
[105] In relation to the contextual consideration of the place of the disputed provision in the Agreement, and the terms of the Agreement as a whole, DP World contends that clause 9.1 does not of itself, create a right for employees to be represented, but rather, that right of entry for the Union to represent employees in relation to "matters pertaining to the employment relationship" is limited to representation in accordance with clauses of the Agreement that specifically provide rights for employees to be represented. The Agreement provisions that DP World referred to in support of this argument are clauses 21.7.5 and 21.9.3 (health and safety issues or incidents); clauses 28.2 and 28.3 (personal grievance procedure); and clauses 29.2.2, 29.2.3 and 29.2.5 (dispute resolution process). DP World contends that these clauses would be otiose if the construction of clause 9.1 contended for by the MUA was accepted.
[106] Clause 21.7.5 provides that employees have a right at any stage of the procedure dealing with health and safety issues and incidents, to be represented by a Union official. Clause 21.9.3 also provides that employees have the right at any stage of the process in relation to reporting of safety issues and incidents, to be represented by a Union official and that the unavailability of an official must not unreasonably delay the resolution of a safety issue or incident, exploration of alternative solutions, conducting investigations or a return to work. Clause 28 deals with personal grievances and at 28.1 defines these to mean any grievance an employee has against the Company because of any claim that the employee has been passed over for promotional position or placement in a training course or that the Company has taken some other action that is "unjustifiable". The clause provides a specific process for dealing with such a grievance. Clause 28.2.2 in relation to personal grievances does not in direct terms provide for a right of representation, but instead, states that the aggrieved employee and any Union representative the employee chooses, are to be given an opportunity to put his or her case personally. Clause 29 Dispute Resolution, does not specifically state that employees have the right to be represented and instead, refers to employee representatives and/or Union officials being involved at various stages of the procedure.
[107] There is no material difference in the wording of the clauses referred to by DP World in its submissions and clause 9.1. All the clauses, including clause 9.1, identify the subject matter in relation to which employees may be represented. The term "matters pertaining to the employment relationship" is arguably more specific than the term "some other action which is unjustifiable" in clause 28.1. The right to be represented and the subject matter to which the right attaches is listed in clause 9.1 of the Agreement. I am also of the view that there is no basis upon which specific provisions for Union representation of employees under the provisions dealing with health and safety issues and incidents, personal grievances over promotion or training or disputes regarding the application of the Agreement or the NES, would be rendered otiose by a general provision that employees may be represented by the Union in matters pertaining to the employment relationship, other than those specified above. One obvious reason why the specific provisions would not be rendered otiose is that a dispute about their subject matter could be a dispute in relation to the application of the Agreement for the purposes of the Dispute Resolution term in clause 29. Accordingly, employees who are reassigned to other work under clause 21.7.4, because of a safety incident, may raise a dispute about whether alternative work is suitable under the dispute resolution procedure. An employee may refer a personal grievance to the Commission for conciliation pursuant to clause 28.8.3. In contrast, a matter pertaining to the employment relationship is not within the scope of the Dispute Resolution term in clause 28 of the Agreement, notwithstanding that a one-on-one may result in some action by the Company in relation to the application of the agreement - such as access to training - which may be raised as a dispute.
[108] A further contextual matter relevant to the construction of the disputed term raised in the submissions of DP World, is that the Agreement is made and approved under the FW Act. To the extent that clause 9.1 deals with right of entry to the Company's premises for Union officers, s. 194(f) of the FW Act provides that a term of an enterprise agreement is an unlawful term if it is a term that provides for an entitlement to enter premises for a purpose referred to in s. 481, which deals with investigations of suspected contraventions, or to hold discussions of a kind referred to in s. 484, other than in accordance with Part 3 - 4 of that Act. Similarly, s. 194(g) renders unlawful, a term of an enterprise agreement that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3 - 4.
[109] Part 3 - 4 of the FW Act provides rights for officials of organisations who hold entry permits (permit holders) to enter premises for purposes related to their representative role under the FW Act and under State or Territory occupational health and safety laws. By virtue of s. 253(1)(b) of the FW Act, a term of an enterprise agreement has no effect, to the extent it is an unlawful term. Relevantly, the Explanatory Memorandum to the Fair Work Bill 2008, makes clear that it is intended that agreements can include terms allowing for union officials to enter the employer's premises for purposes other than those set out in ss. 194(f) and (g).
[110] Section s. 481 of the FW Act provides that a permit holder may enter premises and exercise a right under s. 482 or s. 483, for the purpose of investigating a contravention of the FW Act or a term of a FW instrument, which includes a modern award, an enterprise agreement that relates or affects a member of the permit holder's organisation, whose industrial interests the organisation is entitled to represent, and who performs work on the premises, or an order of the Commission. Section 484 provides a right of entry for a permit holder to hold discussions with employees during non-working time. In summary, rights of entry are subject to notice being provided and certain standards of conduct on the part of permit holders while exercising entry rights. The exercise of State or Territory OHS rights is dealt with in Division 3 of Part 3 - 4 of the FW Act.
[111] Essentially, clause 9.1 replicates the rights the MUA has in relation to entry to the Respondent's premises for the purposes set out in s. 481 of the FW Act. There is no specific legislative right for permit holders to enter premises for the purposes of representing employees "in matters pertaining to their employment". That term must be given some effect as a subject matter in respect of which the clause allows entry by Union officers to the Company's premises for a purpose other than matters in relation to which the Union is already permitted to enter.
[112] In the context of the right of entry provisions in the FW Act, the clauses of the Agreement referred to by DP World as specifically providing for employees to be represented by an official of the MUA, do not depend for their efficacy on clause 9.1 and there is no requirement for those clauses to be read in conjunction with clause 9.1 in relation to right of entry by Union officials. Clauses 21.7.5 and 21.9.3 deal with occupational health and safety matters in relation to which right of entry could be sought by permit holders under Division 3, Part 3 - 4 of the FW Act. Clauses 28.2, 28.3 and the provisions of clause 29 relate to resolution of disputes in respect of which employees are entitled to be represented by the terms of those clauses.
[113] It is arguable that a dispute settlement term that is required to provide for employees to be represented for the purposes of the term, constitutes an implicit agreement that a representative can enter premises for the purposes of attending meetings or holding discussions with the employer. In the present case, if the Company scheduled a meeting on its premises at which an employee had requested to be represented by the MUA and denied entry to an official of the MUA for the purposes of attending the meeting, the effect would be to deny the employee representation in contravention of the terms of the Agreement. There is no evidence that the MUA has been or would be, required by DP World to exercise a formal right of entry to attend such a meeting. If this was required, then the meeting could not proceed unless and until entry was obtained by the representative or some arrangement for the representative to participate, was made.
[114] I do not accept that a construction of the Agreement that allows an employee to be represented in one-on-one discussions by an official of the MUA exercising a right of entry under clause 9.1 of the Agreement, is unworkable, unjust or absurd. Contrary to the submissions of DP World, this is not a case of the kind described in Kucks v CSR where the Commission could legitimately strain the terms of the Agreement to avoid absurd or unjust consequences or where undesirable consequences of a particular construction overwhelm words that are unclear. For the reasons set out above, the disputed term is clear. Further, there is nothing absurd or unjust about an employee who is a member of a Union being represented by an officer of the Union when the employee is required to attend a discussion with a supervisor or manager that encompasses performance, attitude, communication and safety, which is recorded and placed on the employee's personnel file, to the employee's potential detriment. This is particularly so, when the employee is not to be provided with a record of the outcome of the meeting. It is not necessary that the Union establish that employees have been intimidated or abused at such meetings, to justify the construction of the provision I favour.
[115] The proposition advanced by DP World that this construction results in employees being entitled to refuse to have any form of discussion with a supervisor in the absence of a Union representative, is nonsensical. The MUA is not seeking to establish such a proposition. The MUA simply seeks to establish the right of members to avail themselves of their right to be represented in matters pertaining to the employment relationship. A discussion about a day to day work related issue, including a minor or ad hoc discussion, is not a discussion of the kind envisaged in the one-on-one discussions that the Company seeks to implement in the present case. If the Company believes that the provision is being misused, it can revoke rights of Union officers under the clause. Further, the Company has the right to determine procedures in relation to the Union officer entering its premises and the clause specifically provides that conduct on the site by that officer or Company Employees shall not be such as to interfere with or otherwise adversely affect the operations. In relation to the involvement of Union delegates and the assertions of DP World about the impact of this, it should be noted that clause 9.1 refers to an officer of the MUA and there is no indication that this includes a Union delegate or gives rights to an employee to be represented by a delegate in the one-on-one discussions. There would be no requirement for a delegate to exercise a right to enter the Company's premises given that the delegate is also an employee.
[116] Finally, the right of an employee to be represented by a Union in a discussion with his or her employer, in circumstances where such discussion has the real potential to detrimentally impact the employee, should not be subject to the discretion of the employer as to whether "convention or prudent practice" warrants the employee being represented, and I reject the submission of DP World in this regard. Clause 9.1 of the Agreement establishes a right for the employee to choose to be represented in matters pertaining to the relationship between the Company and employees. In that sense, the clause is a beneficial term consistent with the Object of the FW Act of:
"(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms"
[117] That the clause grants a right of representation in discussions with managers, but only by the Union, is also not determinative of the proper construction of the clause. The clause does not compel an employee to be represented by the MUA, much less to join that Union. Rather, it provides a right to employees to choose to be represented by the Union in certain circumstances. Further, the question of whether convention or prudent practice warrants employees, who are not Union members, being allowed a representative in matters pertaining to the employment relationship, is a matter entirely at the discretion of DP World.
[118] In terms of extrinsic material and evidence of parties about the disputed provision and the history of one-on-one meetings in various DP World operations, I am of the view that there was no common understanding in relation to this matter and the reality is that both parties agreed to include a provision in the Agreement, without a meeting of the minds in relation to what it meant. DP World never agreed that there is a right of representation in one-on-one meetings and MUA officials and delegates negotiating the Agreement did not concede this point.
[119] The construction of the Agreement in this case relates to the rights of individual employees to be represented by a Union in certain circumstances. The fact that one-on-one meetings have regularly occurred at DP World Brisbane or elsewhere in the Company's operations without employees seeking to exercise the right to be represented, does not prevent an employee from later seeking that right. Finally, I do not accept that the construction I favour is inconsistent with managerial prerogative. It is well established that managerial prerogative may be constrained by the terms of an enterprise agreement. The subject matter of the meetings at which the MUA seeks to represent its members, is of such significance to those members as employees, that there is no reason why managerial prerogative should outweigh their rights to be represented.
"Does clause 9 of the Enterprise Agreement permit employees to be represented by the Union in 'one-on-one employee feedback sessions' when those sessions involve Operations Supervisors providing 'employees with feedback in the areas of Performance, Attitude, Communication and Safety'?"
S Crilly of Seyfarth Shaw Australia for the Respondent.
[1] Exhibit A1 Witness Statement of Michael McLennan.
[2] Exhibit A2 Witness Statement of Adrian Evans.
[3] Exhibit A3 Witness Statement of Michael Cope.
[4] Exhibit R1 Witness Statement of Scott Eadie.
[5] [2017] FWCFB 3005 at [14].
[6] [2018] FCAFC 131 at [197] (per Tracey, Bromberg and Rangiah JJ).
[8] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]
[10] [2014] NSWCA 184 at [71] - [85].
[11] Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.
[12] Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].
[13] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
[14] Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing)
[15] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] - [85].
[16] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].
[24] [2011] FWA 8288 at [10].
[28] Compare AMWU v Skilled Engineering Ltd [2003] FCA 260 at [14] ff; McAleer v University of Western Australia (No 3) (2008) 171 FCR 499, [2008] FCA 1490 at [102] - [106].
Printed by authority of the Commonwealth Government Printer
Construction, Forestry, Maritime, Mining and Energy Union
DP World Brisbane Pty Ltd [2023] FWC 806
(2005) 222 CLR 241
(1996) 66 IR 182
(2008) 171 FCR 499
(1989) 30 IR 362