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

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 RelationsAct 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.