The MUA has failed to convince a Federal Court judge that stevedores are owed for days lost through strikes because their agreement supposedly guaranteed 30 hours a week pay once they reached an annual threshold, whether they worked or not.
The union in its case before Justice Darryl Rangiah argued that Hutchison Ports breached its since-superseded 2015 deal by failing to pay dozens of dockworkers who took protected industrial action over the course of a week in June 2021.
The company pointed to the Fair Work Act's requirement at s470(1) [payments not to be made relating to certain periods of industrial action] and authorisation at s471(4) [payments relating to partial work bans] to support its position.
But the MUA maintained that the agreement stated that once employees had worked 1560 hours in the case of the Brisbane operation and 1501 hours in Sydney's case they were entitled to 30 hours' pay per week for the remainder of the year, irrespective of whether they performed any work and regardless of any willingness and readiness to perform work.
Justice Rangiah noted that the union in arguing its case placed "particular emphasis" on the deal's Schedule 4 and its roster rules.
Roster Rule 1 provides that "[e]mployees shall work 1560 hours annually, and are available to be allocated to shifts in accordance with the roster, subject to any agreed leave arrangements".
"It may be noted that 1560 hours is an average of 30 hours per week over 52 weeks," Justice Rangiah said.
Roster Rule 4 provides that "[o]nce the 1560 annual hours have been worked in any year, the employee will be paid 30 hours at the Level 1 ordinary rate each week, plus the applicable overtime rate for each shift worked in the week, plus any extensions or preparatory/closing work performed during the week".
"The union submits that the phrase in Roster Rule 1, 'Employees shall work 1560 hours annually', indicated that they were not required to work any more than 1560 hours in the year and that any additional work they performed was voluntary," Justice Rangiah said.
"While that is an arguable interpretation, regard must be had to the context, including the remainder of Roster Rule 1 and the 2015 agreement as a whole."
Union interpretation "would not have made industrial sense": Judge
Justice Rangiah said that the deal's Clause 16 assumed "particular importance" in him arriving at the conclusion that the agreement did not intend to "abrogate the common law principle under which payment of wages is conditional upon performance of work assigned or, at least, a readiness and willingness to do so".
"It may be seen that cl 16.1 allow[s] the employers to roster and allocate employees in accordance with the arrangements in the 2015 agreement, while cl 16.2 create[s] a corresponding obligation on employees to work in accordance with those arrangements."
"The arrangements included, under Roster Rule 1, that employees be available to be allocated to shifts in accordance with the roster.
"The need for the employers to have flexibility in rostering and allocation of work that was recognised in cl 16.1 is inconsistent with employees having a discretion to effectively choose their own shifts after working 1560 hours."
The judge found it "quite improbable" that either the union or Hutchison in making the deal "intended that an employee could simply choose whether or not to work on any allocated shift for the rest of the year after working 1560 hours".
"That would not have made industrial sense because the employers would have been left without assurance of having an adequate number of employees for any shift towards the end of the year.
"Accordingly, the 2015 agreement must be construed such that where a shift was allocated to the employee who had already worked 1560 hours, they were only entitled to the payment of the full 30 hours at the Level 1 ordinary rate each week if they performed their allocated work, or were at least ready and willing to perform that work."
Consequently, he said, Hutchison did not contravene s50 or s323 and he dismissed the case.
The FWC in late 2020 directed Hutchison to pay its workforce for several days of work missed after OHS representatives issued a "cease work" order in response to wharfies contracting COVID-19 in the early stages of the pandemic (see Related Article).
Deputy President Geoff Bull however in that case found Hutchison did not need to backpay the workers for further time off after the NSW chief medical officer declared it safe to return.