Without providing all relevant information about the introduction of automation; and/or

Without considering all of the views and advice of the applicant and the stevedoring employees; and/or

Without giving 21 days notice to the applicant or the stevedoring employees of the implementation of the change.'

[38] In my opinion, the reference in the original notification above is entirely consistent with both parties' understanding of what this dispute is about. It seems an unassailable proposition that the determination of this dispute is encompassed within the framework of the original dispute notification. Accordingly, no jurisdictional grounds exist which would bar the Commission from determining the matter, pursuant to the dispute settlement procedure under the Agreement. I note that Mr Shariff criticised the Union's letter to the Commission initiating these proceedings, in that it made no reference to cl 14 at all. As will be self-evident, the original dispute notification at para 4.10 (above) expressly makes reference to the Union's allegation that cl 14 had not been complied with.

[39] As I apprehend the evidence, the only difference the Union could point to between the Production Managers at Fisherman Islands and Port Botany is that the introduction of the autostrads at Fisherman Islands was not in an environment of the redundancy of a significant number of employees. In one sense, such a distinction is irrelevant to the determination of this dispute. This is so because the Union's case hinged primarily on its view that the recruitment of Production Managers should be restricted to internal applicants only and by means of an established selection process in the Agreement (cl 9). It was said that this would ameliorate the impact of the redundancies proposed at Port Botany.

[40] On its face, the Union's case does not appear to be unreasonable or devoid of merit. However, it must be seen in the context of a number of countervailing factors; including, not least of all, the experience of the introduction of the role at Fisherman Islands. Coincidently, I had the benefit of visiting Fisherman Islands and observing the work of the Production Managers for the same amount of time as Mr Euers. I shall come back to this shortly. I address the Union's contentions as follows.

[41] Firstly, it is highly likely that there are existing employees at Port Botany with the necessary skills, experience, expertise and interest to undertake the role of a Project Manager or are capable of being trained up to the position. Indeed, unlike Brisbane, Patrick has positively encouraged internal applications and have recognised that experience with Port Botany's processes and procedures will be a distinct advantage over external candidates. I agree with this observation.

[42] In my view, what Patrick has done in encouraging internal applications, is to recognise and agree with the Union's view that the redundancies should be ameliorated by whatever options are available. It seems to me that this is precisely what Patrick is doing. It is consistent with its obligations under general industrial principles dealing with significant workplace change. Of course, that does not mean there might be arguments about an individual's capacity or skills necessary for the position. There are existing means of addressing such arguments, if the occasion arises.

[43] Secondly, it seems to me that the recruitment for five new positions is not going to dramatically impact on the large number of job losses which seem inevitable at this point - even on the Union's proposed labour model. The Union estimates that Patrick's model will result in job losses of over 200.

[44] Thirdly and most importantly, the Port Botany Production Manager's role is, in my opinion, directly analogous to the same role at Fisherman Islands, where the following evidence disclosed:

there was no suggestion at the time, or subsequently, that the position was not a management role;

the Union has not sought to agitate a claim for either coverage of the role or its inclusion under the enterprise agreement;

there has been no position put that the persons engaged as Production Managers should not be covered by individual contracts of employment;

there was no evidence to suggest that the role was covered by an existing classification under the Agreement. I note the salary applicable to the role is above the highest Level 6 rate under the Agreement; and

there was no dispute as to the recruitment process of Production Managers at the time, or subsequently, and unlike here, the advertising for the positions excluded internal applicants, seemingly without demur from the Union.

[45] In my assessment, the resemblance of the role to the Production Managers at Fisherman Islands is persuasive evidence telling against the Union's arguments. However, even putting the Fisherman Islands experience to one side, I have no doubt that the Production Manager's role at Port Botany is a management position, not contemplated by coverage under the Agreement. Once that finding is made, it seems to me that the Union's case is doomed. It follows that:

the consultation clause (cl 14) on significant change is not applicable; and

[46] Nevertheless, even if the terms of the Agreement were applicable to Production Managers, I do not understand how cl 9 can be relevant to these new positions. It will be readily apparent that cl 9 is directed towards a particular group of employees (supplementary) and a specific set of circumstances. It is not permissible, as a matter of agreement interpretation, to isolate or 'cherry pick' particular words, phrases or subclauses and give them a meaning inconsistent with the overall intention and context of the clause; See: Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 ('Amcor') and Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 ('Kucks v CSR').

[47] The fact that the processes under the clause may have been conveniently used to recruit and select other Management positions at Port Botany is not the point. It certainly is not determinative. The Union's argument cannot derogate from the principles of agreement interpretation when the words are in contest. In addition, as I understand it, cl 9 has only been used for existing vacancies and not where new positions are being created. This seems to be perfectly consistent with the reference to filling 'existing full time positions' which become vacant as set out in cl 9.5.

[48] In any event, cl 9.4 can only be read as giving Patrick an absolute and unfettered discretion to select and recruit 'any person from within or outside the existing workforce/s to fill a vacancy.' Had cl 9 been relevant, this provision would be an almost insurmountable hurdle for the Union to overcome when viewed from the prism of management prerogative. Moreover, the clause constitutes an agreement between the parties.

[49] Finally, it is also of some significance to note the wording of cl 2.1 of the Agreement, setting out the parties bound. There can be little doubt that the express coverage of the Agreement is only to those stevedoring employees in Award classifications from Grades 1-6. The classification of Production Manager falls well outside this express coverage. I agree with Mr Shariff that cl 15 of the Agreement has nothing to do with extending coverage of the Agreement to managers. It is an unremarkable and conventional higher duties provision.

[50] For the aforementioned reasons, I find that Patrick is entitled to recruit and select persons for the positions of Production Managers at Port Botany by the process outlined in Ms Ferrier's letter to the Union, dated 9 August 2013, Annexure A.

Mr A Slevin, Counsel with Mr A Jacka for the applicant

Mr Y Shariff, Counsel with Mr D Perry, Solicitor and Mr A Lambert, Solicitor for the respondent

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