Maritime Union of Australia v Geraldton Port Authority [2000] FCA 68 (10 February 2000)

Last Updated: 11 February 2000

FEDERAL COURT OF AUSTRALIA

Maritime Union Of Australia v Geraldton Port Authority [2000] FCA 68

INDUSTRIAL LAW - prejudicial alteration to the position of applicants by removal of prospect of overtime - issues relating to final form of orders.

MARITIME UNION OF AUSTRALIA, PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN AND STEVE PENNEY v GERALDTON PORT AUTHORITY, ERIC CHARLTON AND MURRAY CRIDDLE

WAG 98 & 101 of 1998

R D NICHOLSON J

10 FEBRUARY 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 98 AND 101 OF 1998

BETWEEN:	MARITIME UNION OF AUSTRALIA First Applicant PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY Second Applicants
AND:	GERALDTON PORT AUTHORITY First Respondent ERIC CHARLTON Third Respondent MURRAY CRIDDLE Fourth Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	10 FEBRUARY 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

(1) The contravening conduct for the purpose of these orders is the contravention of s 298K of the Workplace Relations Act by the first respondent, altering the position of the second applicants and the MUA members (hereafter "the employees") in their employment to their prejudice for a prohibited reason by prospectively reducing their entitlement to overtime, namely because the employees are and were at all material times entitled to the benefit of the Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award 1995 and the Geraldton Port Authority Integrated Port Labour Force Agreement 1995.

(2) Pursuant to ss 298U(e) and (f) of the Workplace Relations Act the first respondent remedy the effects of the contravening conduct identified in

Order (1) hereof by:

(a) Making the labour of the employees referred to in order (1) available for hire to stevedores (including those licensed to undertake stevedoring at the Port by the first respondent) to undertake stevedoring work at the Port, including at Berth Number 4;

(b) Rostering and classifying the employees as irregular shift workers under the Award and the Agreement.

(3) Order (2) shall operate in respect of each of the employees until the first of the following events occurs:

(a) The employee ceases to be employed by the first respondent on the terms and conditions set out in:

(i) The Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award, 1995 ("the Award"); and

(ii) The Geraldton Port Authority - Integrated Labour Force Agreement 1995 ("the Agreement");

(b) The employee is redeployed on terms and conditions no less favourable than the Award and the Agreement.

(c) The first respondent lawfully ceases to make the labour of the employees referred to in Order (1) available for hire to stevedores.

(4) For the period from and including 27 March 1999 to the date of this order taking effect, the first respondent shall pay to the employees, as part of their entitlement to overtime during that period a sum equal to the difference between any amount paid for overtime to an employee during that period and an amount being the mean average of an amount calculated at the rate of 1·5 times the ordinary rate of pay for the employee as at 3 July 1998 and an amount so calculated at the date this order takes effect for 24 hours overtime for each calendar month of that period (proportionalised to the number of days in any incomplete month).

(5) There be liberty to apply in respect of the operation of these orders.

(6) The application be otherwise dismissed.

(7) These orders take effect in 28 days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 98 AND 101 OF 1998

BETWEEN:	MARITIME UNION OF AUSTRALIA First Applicant PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY Second Applicants
AND:	GERALDTON PORT AUTHORITY First Respondent ERIC CHARLTON Third Respondent MURRAY CRIDDLE Fourth Respondent

JUDGE:	R D NICHOLSON J
DATE:	10 FEBRUARY 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1 On 14 January 2000 I published reasons for judgment in relation to the appropriate form of final orders. Written submissions having been delivered on the proposed form of orders, I give my reasons for settling the final orders in the form attached.

Proposed Order (2)(a):

2 The words "on the same basis" in proposed Order (2)(a) appeared in the draft orders proposed on behalf of the applicants. They are now opposed on behalf of the GPA.

3 I accept the submission for the GPA that the words "on the same basis" are uncertain. While it is open to read the words as contended for the applicants as referable to the "making the labour of the employees ... available", the words leave open what was the original basis. To use them could open up the possibility of unnecessary resort to the liberty proposed in the orders.

4 The removal of the same words invites concern on the part of the applicants that the GPA may only make employees available on a limited basis or on some basis it chooses to implement. That submission overlooks two factors. The first is that Order (2) is in its terms clearly designed to restore the employees to overtime work by making their labour available and having them rostered and classified as irregular shift workers. The second is that the availability of labour, rostering and classifying must occur where the demands for overtime work arise from the requirements of the Port. The use of the words "on the same basis" have the danger of suggesting some rigid or fixed standard unresponsive to surrounding commercial and industrial realities.

5 It is not sufficient only to remove the words "on the same basis" - the words "as existed prior to 3 July 1998" also require removal.

6 It is also my opinion that the proposed course of deleting these words is preferable because it is less likely to give rise to applications to exercise the liberty proposed by the Court than would be the case if the words remained.

Proposed Order (3):

7 It is common ground that subpar (a) should refer to the employee rather than the second applicants.

8 I accept the submission for the GPA that Order (3) should include a paragraph (c) to the effect that "the GPA lawfully ceases to make the labour of the employees referred to in Order (1) available for hire to Stevedores." The alternative submission does not require consideration and in any event raises issues beyond those previously in contention.

9 I decline, as urged for the applicants, to substitute "or" for "and" in proposed Order (3)(a) between (i) and (ii). The case was conducted on the basis the employees came under the Award and the Agreement, which are intrinsically linked.

Proposed Order (4):

10 I accept the submission for the GPA that in drafting this Order the Court's intention is that relief granted has the effect that no injury or prejudicial alteration in the form of reduction in overtime becomes actual and that no bonus or windfall gain is intended. However, the object of the proposed Order (4) is in relation to overtime only. There is no basis for taking into account increased pay other than in reference to the rate of overtime.

11 I also accept the submission for the GPA that the reference to "overtime for stevedoring work" should refer to "overtime for work". The reasons delivered on 5 July 1999 as referred to in the reasons of 14 January 2000 show that it was reduction in overtime earnings which was in issue and found to be a prejudicial alteration. In the event there is a case to be properly made for the GPA that the effect of the restructure of the Port operations has been to increase significantly the overtime earnings of the employees, that may be the occasion for the GPA to seek variation of the orders under the liberty provided. That case was not made at trial.

12 The amount to be paid (if any) should take into account differences in the rate of pay of an employee. The most straight forward way to achieve this is to take into account the rates of ordinary pay at the beginning and end of the period.

13 It is agreed the amount to be paid (if any) should be calculated to the date of the order taking effect rather than the date of the order.

Commencement of Order

14 In my opinion it is reasonable to allow 28 days rather than 14 days for the final orders to take effect.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Associate:

Dated: 10 February 2000

Counsel for the Applicants:	Mr R F Redlich QC and Mr W Friend and Mr P Rozen
Solicitor for the Applicants:	Maurice Blackburn & Co
Counsel for the First Respondent:	Mr R L Le Miere QC and Mr J R B Ley
Solicitor for the First Respondent:	Freehill Hollingdale & Page
Counsel for the Third Respondent	Mr K J Martin QC with Mr C J Sweeney
Solicitor for the Third Respondent	McCallum Donovan Sweeney
Counsel for the Fourth Respondent	Mr G T W Tannin with Mr M G Lundberg
Solicitor for the Fourth Respondent	Crown Solicitor for the State of Western Australia
Written Submissions:	17 & 19 January 2000
Date of Judgment:	10 February 2000