Australian Institute of Marine and Power Engineers, the andAustralian Maritime Officers' Union, the andMaritime Union of Australia, The v Perkins Shipping Pty Ltd t/as Toll Marine Logistics

[2015] FWC 6321

[2015] FWC 6321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Institute of Marine and Power Engineers, The

and

Australian Maritime Officers' Union, The

and

Maritime Union of Australia, The
v
Perkins Shipping Pty Ltd t/as Toll Marine Logistics
(C2014/1618, C2014/1625, C2014/6205)

COMMISSIONER CAMBRIDGE SYDNEY, 11 SEPTEMBER 2015

Dispute settlement procedure - dispute as to correct calculation of severance payments - contest as to obligation arising from terms of industrial instruments - principles for construction of terms of an enterprise agreement - further issue in respect to alleged overpayment in respect to calculation of severance payments under two of the relevant industrial instruments - applications dismissed.

[1] This Decision is made in respect to three applications taken under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with Dispute Settlement Procedures (DSPs).

[2] The applications in matters C2014/1618 and C2014/6205 were lodged at Brisbane on 3 and 4 September 2014 respectively. The application in matter C2014/1625 was lodged in Melbourne on 4 September 2014. The applications were respectively made by the Australian Institute of Marine and Power Engineers (the AIMPE) in matter C2014/1618, the Australian Maritime Officers' Union (the AMOU) in matter C2014/1625, and the Maritime Union of Australia (the MUA) in matter C2014/6205. The AIMPE, the AMOU and the MUA are collectively referred to as the Unions or the applicants. Each of the applications was taken against Perkins Shipping Pty Ltd t/a Toll Marine Logistics (the employer or TML).

[3] The Commission is empowered to deal with these matters by virtue of DSPs found at; clause 26 of the Toll Marine Logistics & Australian Institute of Marine & Power Engineers Gladstone Inshore Maritime Agreement 2013 (the Engineer Agreement); and clause 26 of the Toll Marine Logistics & Australian Maritime Officers Union Gladstone Inshore Maritime Agreement 2012 (the Officer Agreement); and clause 26 of the Toll Marine Logistics & MUA Gladstone Inshore Maritime Agreement 2011 (the Deckhand Agreement). The Engineer Agreement, the Officer Agreement, and the Deckhand Agreement are collectively referred to as the Gladstone Agreements.

[4] The applications identified various issues which related to the employer’s decision to make various employees covered by the Gladstone Agreements redundant. The issues in dispute were sufficiently connected so as to have the matters joined and they have been dealt with together. The applications were the subject of various conciliation conferences and ultimately one primary issue remained unresolved and required arbitration in a Hearing conducted in Sydney on 4 June 2015.

[5] At the commencement of the Hearing on 4 June, the question arose as to whether permission should be granted under s.596 of the Act for the employer to be represented by lawyers or paid agents (the representation question). The Commission received oral and written submissions from the Parties in respect to the representation question and made an extempore determination which can be found at PN79 to PN82 of the transcript. The employer was granted permission to be represented by lawyers or paid agents.

[6] At the Hearing Mr A Jacka appeared for the MUA, Mr B Matthey appeared via video link to Brisbane for the AIMPE and Ms J Thompson appeared via video link to Melbourne for the AMOU. The employer was represented by Mr T Saunders, a barrister. The Unions did not file any evidentiary material and the employer introduced broadly uncontested evidence in the form of a statement of Leanne Cull dated 29 April 2015 1. During the Hearing the MUA provided evidence in the form of a copy of a PAYG payment summary2. Each of the Parties then made their respective verbal submissions in amplification of various documentary materials.

Background

[7] TML relevantly provides marine transportation services under contract to the Bechtel Corporation in respect of transport between the Australian mainland and the liquefied natural gas processing facilities on Curtis Island, near Gladstone, Queensland. Initially the provision of these transportation services was conducted with the use of four vessels which involved the engagement of crews, the work of which was covered by the Gladstone Agreements.

[8] During 2014, Bechtel advised TML of a forecasted reduction of about 50% in freight demand for the contracted transportation services between Gladstone and Curtis Island. As a result of this reduction in operational demand TML made a decision to reduce the workforce engaged under the Gladstone Agreements from about 40 employees to about 20 employees.

[9] On or about 20 August 2014, TML advised the Unions and the effected employees of the redundancies. In response to this advice the Unions made the applications which gave rise to these proceedings and eventually the unresolved issue in dispute has been identified as a contest as to the correct calculation of the severance payments made to the redundant workers.

[10] The contest about the amount of the severance payments involved an argument about the construction of particular terms contained in the Gladstone Agreements, which, in each case, are worded with sufficient similarity as to provide resolution of the dispute by way of a single determinative construction. In brief, the contested construction is an issue as to whether the “gross salary” figure, or in the case of the Officer Agreement, the “days pay” figure, upon which the severance payments are calculated, should include or exclude certain allowances which are prescribed under the Gladstone Agreements.

[11] A further issue arose which also involved the correct calculation of the amount of severance payments. This further issue was confined to the calculation method prescribed by the Deckhand and Engineer Agreements and did not arise in respect to the Officer Agreement.

[12] In brief, the terms of the Officer Agreement provide for calculation of severance payment by reference to the rate of pay at the time of termination which is then multiplied by each year of service. Alternatively, the calculation method under the Deckhand and Engineer Agreements appears to prescribe an aggregated “gross salary” figure covering the period of continuous service of a redundant employee. Despite this apparently less beneficial prescription in the Deckhand and Engineer Agreements, TML used the more beneficial calculation method from the Officer Agreement in the calculation for the severance payment for all redundant workers. TML sought to have the Commission recognise the construction of the relevant terms of the Deckhand and Engineer Agreements did not oblige it to make the more beneficial calculation based upon the terminology of the Officer Agreement.

The Unions’ Case

[13] At the Hearing, Mr Jacka who appeared on behalf of the MUA made the substantive submissions on behalf of the Unions. The submissions made by Mr Jacka were supplemented by further submissions made by both Mr Matthey on behalf of the AIMPE, and by Ms Thompson on behalf of the AMOU. Mr Jacka, Mr Matthey and Ms Thompson all made submissions which elaborated upon written outlines of submissions filed on behalf of the organisations that they respectively represented.

[14] The submissions made by the Unions focused upon the competing interpretations of relevant clauses in the Gladstone Agreements which dealt with the basis upon which severance payments were calculated. In respect of the Deckhand and Engineer Agreements, the relevant terms involved the use of the words “gross salary” as an amount which was to be used to calculate a 10% figure which represented the severance payment. In the Officer Agreement the relevant terms involved the use of the words “days pay (as defined in sub-clause 4.9)” as the basis upon which a figure was established and then multiplied by 38 and further multiplied by each year of service so as to establish the quantum of severance payment.

[15] All of the Unions contended that the figure to be determined as the starting point for calculating severance pay, whether that be the “gross salary” or the “days pay” figure, should include an all-purpose allowance which had been fixed for the Gladstone LNG projects. Further, in respect to the Deckhand and Engineer Agreements it was asserted that in addition to the all-purpose allowance the “gross salary” figure should also include a victualling allowance which was prescribed by clause 10.4 in each of the Deckhand and Engineer Agreements. Although an almost identical victualling allowance clause was contained in clause 10.4 of the Officer Agreement, no case was advanced that the “days pay” figure relevant to the calculation of severance payment in that instrument should also include the victualling allowance.

[16] The Unions submitted that in respect of the terms “gross salary” the plain and ordinary meaning that should be attributed to those words meant that “gross salary” was inclusive of allowances such as the all-purpose allowance and the victualling allowance. In particular it was submitted that “gross salary” should be given a meaning equivalent to total remuneration being inclusive of allowances which would apply to the ordinary hours of work on the project.

[17] The Unions also objected to the Commission making a determination in respect to the further issue which had been raised by TML regarding the method by which severance payments were calculated for redundant workers engaged under the Deckhand and Engineer Agreements by adoption of the more beneficial methodology prescribed by the Officer Agreement. This particular issue was relevant only to the MUA and the AIMPE who argued that the matter had not been progressed via the relevant DSPs and therefore the issue was not properly before the Commission.

[18] In summary, the Unions submitted that the ordinary and plain meaning that should be attributed to the words contained within the relevant clauses of the Gladstone Agreements established that, (a) “gross salary” for the purposes of calculating severance payment, included the all-purpose allowance and the victualling allowance, and (b) “days pay” for the purposes of calculating severance payment, included the all-purpose allowance. Further, the Unions rejected that the Commission was properly empowered to make any determination in respect of the further issue raised by TML regarding the correct method of calculating severance payments under the Deckhand and Engineer Agreements.

The Employer’s Case

[19] Mr T Saunders, barrister, was granted permission to appear on behalf of the employer at the Hearing. Mr Saunders commenced his submissions by asserting that the contested terms contained in the Gladstone Agreements could be given a plain and ordinary meaning in respect of the basis for calculation of severance payments. Mr Saunders submitted that the terms “gross salary” could not be construed to represent total remuneration as was broadly contended for by the Unions.

[20] The submissions made by Mr Saunders involved an examination of various clauses contained within the Gladstone Agreements which he said established that there was a clear difference to be made between the concept of salary as distinct from an all-purpose allowance. Mr Saunders said that when the various clauses of the Gladstone Agreements were examined it was clear that salary represented a component of total remuneration which would ordinarily include allowances such as the all-purpose allowance and the victualling allowance.

[21] Mr Saunders made submissions which referred to various decided cases which had examined the meaning that should be given to words such as “gross salary”, “ordinary pay”, “gross earnings”, “total remuneration”, and the like, when considered as terminology contained in industrial instruments. Mr Saunders submitted that any contemplation of the words “gross salary” to imply an amount before tax was deducted was a misguided proposition that was not supported by the various terms of the Gladstone Agreements which dealt with amounts paid as salary or other forms of remuneration such as allowances. Mr Saunders stressed that a clear distinction should be made between gross salary and total remuneration.

[22] Mr Saunders also submitted that there was a well-known common industrial usage which established that as a general proposition remuneration was a broader concept than salary or wages. In this regard Mr Saunders also referred to various Decisions of Courts and Tribunals which supported the proposition that salary was but one component of remuneration.

[23] Further, Mr Saunders submitted that the purpose of severance payments was an important consideration in respect to resolving the contested construction question. In this regard Mr Saunders submitted that the purpose of severance payments were to primarily compensate an employee for the loss of non-transferable credits and not necessarily provide a payment that equated with what the employee would have received if they had worked for a particular period. Importantly, Mr Saunders submitted that if the Parties had intended for the severance payments that were prescribed in the clauses contained in the Gladstone Agreements to include salary plus allowances, then the terms would have expressly provided for such inclusions.

[24] Mr Saunders also submitted that the construction of the contested terms as advanced on behalf of the Unions would not accord with business common sense and should therefore be rejected.

[25] Mr Saunders made additional submissions regarding the further issue of the method of calculating the severance payment figure based upon the amount of remuneration received at or immediately before the termination of employment as opposed to an amount paid as gross salary to an employee during the period of continuous employment on the project. Mr Saunders urged the Commission to provide for a construction of the relevant terms contained in the Deckhand and Engineer Agreements which would acknowledge that there was no obligation on TML to use a more beneficial method as would apply from the terms of the Officer Agreement.

[26] In conclusion, Mr Saunders submitted that the dispute which had arisen over the contested terms contained in the Gladstone Agreements involved the Unions advancing an interpretation which could not be supported when the relevant terms were given their plain and ordinary meaning. Mr Saunders said that the contested terms of the Gladstone Agreements provided for severance payments to be calculated upon gross salary figures which were exclusive of allowances. In particular, Mr Saunders submitted that the terms of the Gladstone Agreements did not specifically provide for inclusion of the all-purpose allowance or the victualling allowance as part of any severance payments. Mr Saunders urged that the Commission reject the interpretation of the Gladstone Agreements as had been advanced by the Unions.

Consideration

[27] The dispute in these matters has involved a contest about the meaning that should be given to particular words which appear in three Enterprise Agreements. The approach to interpretation of industrial instruments is not a matter of strict statutory interpretation. Although the words in an industrial instrument may be given their plain literal meaning, it is well established that often it is appropriate to adopt a contextual and purposive approach broadly based upon Authority established by a body of decision-making which is well summarised in a Decision of a Full Bench of Fair Work Australia in,Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd  3(Silcar).

[28] The principles that are to apply to the approach to interpretation/construction of the terms contained in an Enterprise Agreement has been the subject of an authoritative Decision of a Full Bench of this Commission in the matter of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  4 (Golden Cockerel). At paragraph 41 of the Golden Cockerel Decision the Full Bench set out the following principles that apply to the approach to interpretation/construction of terms of an Enterprise Agreement:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.

10. 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.”

[29] Accordingly, the principles as established by the Full Bench Decision in Golden Cockerel have been adopted and relevantly applied in this instance to the contested interpretation of the terms contained in the Gladstone Agreements.

Severance Pay, Gross Salary and Days Pay

[30] The primary contest in this instance has concerned whether the terms of the Gladstone Agreements which prescribe severance payments as being derived from either “gross salary” in the case of the Deckhand and Engineer Agreements, or “days pay” in the Officer Agreement, contemplate inclusion of either or both the all-purpose allowance and the victualling allowance.

[31] The approach to resolving this contested construction question should logically commence with an examination of the relevant words so as to discern whether or not these words contain some ambiguity. It is well established that the approach to resolving questions of contested construction should focus upon providing the words under examination with their plain and ordinary meaning unless for some cogent reason such ordinary meaning is inappropriate and unavailable.

[32] The particular terms of the Deckhand Agreement and the Engineer Agreement which prescribe severance payments are sufficiently similar so that it is only necessary to extract the particular terms of one instrument and consequently the relevant terms of the Deckhand Agreement are as follows:

“22. SEVERANCE

22.1. An employee that is made redundant as defined in the Fair Work Act 2009 as a result of the project completing (which excludes resignation or dismissal of an employee) shall be paid a severance payment equal to 10% of the employee’s gross salary paid to the employee for the period of their continuous employment with the employer during the project period under the terms of this Agreement. In the event that this 10% severance payment amount is less than the minimum amount of redundancy pay prescribed in Subdivision B of the Fair Work Act 2009 for the employees’ overall period of continuous service, the employer will make up the difference.

22.2. The 10% severance payment will also be payable should an employee move from one Company project to another at the completion of the project. This payment will have no bearing on an employees’ entitlement to redundancy pay in the future.

22.3. The payment prescribed in Clause 22.1 is a gross payment and shall be subject to taxation in accordance with the relevant law.

22.4. Employees will be entitled to Long Service Leave in accordance with the relevant state legislation.”

[33] The words “…the employee’s gross salary paid to the employee…” appearing in sub-clause 22.1 represents the focus of examination for the contested construction question. Essentially, the question which has arisen is whether an employee’s “gross salary” should include one or both of two allowances which are prescribed by other clauses in the Gladstone Agreements. The two other allowances are the all-purpose allowance and the victualling allowance.

The All-Purpose Allowance

[34] The all-purpose allowance is prescribed in almost identical terms contained in the respective Schedule 2’s of each of the Gladstone Agreements. Schedule 2 from the Deckhands Agreement is in the following terms:

“SCHEDULE 2 - ALL PURPOSE ALLOWANCE (Gladstone LNG Projects)

An all-purpose allowance of $90 per day shall be paid to all employees employed under this agreement in work in the Port of Gladstone in respect of the LNG projects for each duty day or part duty day worked. This is a gross allowance and will be taxed appropriately in accordance with the applicable taxation law.

1 Jan 11	1 Jan 12	1 Jan 13	1 Jan 14
Daily	$90.00	$95.40	$101.12	$107.19

”

[35] It is also relevant to note that each one of the Gladstone Agreements contains a Schedule 1 which prescribes annual salary figures which are also described as the annual rate.

[36] If the construction for the terms “gross salary” contained in sub-clause 22.1 of the Deckhand Agreement and clause 21 of the Engineer Agreement as was urged by the Unions was correct, these words would have to be interpreted to mean both the annual salary set in Schedule 1 and the all-purpose allowance set in Schedule 2. Consequently, to interpret the terms of the severance payments clauses of the Deckhand and Engineer Agreements to include the all-purpose allowance would involve an interpretation that hypothetically introduced additional words which do not exist in those clauses. Any such interpretation would require there to be a hypothetical addition to the words “gross salary” of words such as “and any all-purpose allowances” or “including any other allowances” or “comprising amounts fixed by Schedule 1 and Schedule 2.”

[37] Further, it is relevant to note that the all-purpose allowance is an allowance paid and specifically prescribed in respect of “…each duty day or part duty day worked.” Severance payments are made in circumstances where employment is terminated and no duty is performed or duty day would be worked. Consequently, any inclusion of the all-purpose allowance in a severance payment would not be supported by the terms contained in Schedule 2 which prescribe the basis for the payment of the allowance.

[38] Therefore an examination of the terms of the relevant severance payment provisions found at sub-clause 22.1 of the Deckhand Agreement and clause 21 of the Engineer Agreement, when considered in the context of other relevant provisions of the Gladstone Agreements, establishes a plain and unambiguous meaning for the term “gross salary”. The plain and unambiguous meaning of the term “gross salary” cannot be construed to include the all-purpose allowance set by Schedule 2 in the Deckhand and Engineer Agreements.

[39] In respect to the Officer Agreement, the relevant terminology which is used in the severance payment clause involves the words “days pay” and the relevant provisions of sub-clause 21.1 are in the following terms:

“21.1. A Project Employee, on termination of employment from a project as a result of the project completing, or permanently leaving the project due to redeployment by the Employer (this does not include resignation or termination for any other reason, e.g. gross misconduct), shall be paid a bona fide severance and redundancy payment equal to 38 days pay (as defined in sub-clause 4.9) per year of service, or each part year of service will be paid pro rata on that project.”

[40] The reference in sub-clause 21.1 to sub-clause 4.9 was recognised to be an error and should have referred to sub-clause 4.7 which provides a definition for “daily rate” to mean “the rate calculated by dividing the annual rate by 364”. The Officer Agreement does not define the “annual rate” in the definitions clause. However, the “annual rate” is set out in the tables contained in Schedule 1 which fix the annualised salaries.

[41] As with the term “gross salary” contained in the relevant severance provisions of the Deckhand and Engineer Agreements, the term “days pay” contained in sub-clause 21.1 of the Officer Agreement is an unambiguous term directed via the definition of “daily rate” in sub-clause 4.7, at the annual salary fixed by Schedule 1. The term “days pay” cannot be construed in a manner which would require the hypothetical inclusion of words which may suggest an inclusion of the Schedule 2 all-purpose allowance.

The Victualling Allowance

[42] The proposition for inclusion of the victualling allowance in the calculation of severance pay was advanced by the MUA and the AIMPE. There was sufficient similarity in respect to the particular terminology used in both the Deckhand and Engineer Agreements such that it is only necessary to examine one of the relevant clauses, namely sub-clause 10.4 of the Deckhand Agreement which is in the following terms:

“10.4. All employees will be entitled to a $350 per week or pro-rata for part there of ($50p/d) for each duty week in lieu of any claims for food or incidentals whilst on duty. This will be deposited fortnightly into employee bank accounts at the same time salary/wages are paid. This amount will be increased by 6% per annum adjusted on the 1st January each year for the life of the agreement.

Victualling

1 Jan 11	1 Jan 12	1 Jan 13	1 Jan 14
Victualling weekly	$350.00	$371.00	$393.26	$416.86

[43] For the same reasons that the words “gross salary” could not be construed to include the all-purpose allowance the victualling allowance is also not comprehended as part of a severance payment calculated on “gross salary”. In the absence of some words which mention the inclusion of an allowance or allowances, the words “gross salary” cannot be given a meaning contrary to the ordinary meaning of the word “salary” so as to include allowances which are amounts paid that are fundamentally separate to salary.

[44] Further, it is relevant to note that, like the all-purpose allowance, the prescription for payment of the victualling allowance is qualified by an employee actually engaged in “… each duty week… whilst on duty.” In the absence of any terminology to the contrary, the payment of the victualling allowance as part of a severance payment which was not connected with any actual engagement of the employee “on duty”, would disregard the basis upon which sub-clause 10.4 prescribes payment of the victualling allowance.

[45] Consequently, the terms of sub-clauses 22.1 and 10.4, (and clause 21 in the case of the Engineer Agreement), when properly considered in the context of the Deckhand and Engineer Agreements in totality, do not provide for an entitlement that payment of the victualling allowance could be included in any severance payment.

The Further Issue of the Correct Methodology

[46] The further issue which was advanced by TML involved the methodology used to calculate the “gross salary” figure under the Deckhand and Engineer Agreements. TML contended that it had used the methodology relevant to the calculation of “days pay” derived from the Officer Agreement as a more beneficial basis for the quantum of severance payment. It appeared that,in effect, TML sought a declaration from the Commission that the terminology applicable to the calculation for “gross salary” under the Deckhand and Engineer Agreements did not require what was asserted to be the more beneficial methodology required by the Officer Agreement for the calculation of “days pay”.

[47] Although the Commission can appreciate that TML may wish to have a determination made about this aspect of the construction of the severance payment methodology provisions of the Gladstone Agreements, it would be inappropriate and potentially unjust to provide such a determination via the applications in these matters. In simple terms, the applications do not identify any practical dispute regarding this question which had been unsuccessfully processed through the relevant dispute settlement procedures. Therefore the Commission would not be properly seized of jurisdiction to make any determination regarding the issue of the severance payment methodology construction.

[48] However, in passing it must be noted that the terminology used in the Officer Agreement in respect of the methodology for calculating the quantum of severance payment is clearly different to the methodology that is proposed by the terminology used in the Deckhand and Engineer Agreements. Notwithstanding the manifest difference in terminology, whether TML would choose to apply different methods for the calculation of severance payments between Officers as opposed to Deckhands and Engineers is an issue involving questions of equity and good conscience that would need to be carefully considered by TML.

Conclusion

[49] The determination of the issues which have arisen in these disputes has involved the interpretation of particular words in various clauses of the Gladstone Agreements. Relevantly, the words contained in; sub-clauses 22.1 and 10.4 together with Schedule 2 of the Deckhand Agreement, and; clause 21 and sub-clause 10.4 together with Schedule 2 of the Engineer Agreement, and; sub-clause 21.1 and Schedule 2 of the Officer Agreement, are terms that have all required examination.

[50] In summary, my consideration has led me to conclude that the relevant clauses of the Gladstone Agreements which prescribe severance payments as being determined, in the case of the Deckhand and Engineer Agreements, by reference to “gross salary” and in the case of the Officer Agreement, by reference to “days pay”, do not contemplate the inclusion of any amounts that represent allowances, specifically either the all-purpose allowance or the victualling allowance. The severance payments prescriptions contained in the Gladstone Agreements are, in the case of both the terms “gross salary” and “days pay”, confined to annual salary amounts specified in the respective Schedule 1s of each of the Gladstone Agreements.

[51] Further, the Commission is not empowered to make any further binding determination in respect of the correct construction of the methodology for calculation of the amount of “gross salary” or “days pay” as that issue was not the subject of any of the applications currently before the Commission nor has it been a matter that was properly pursued via the relevant dispute settlement procedures.

[52] In view of the conclusions that I have reached, each of the applications made on behalf of the Unions must be dismissed. An Order dismissing the applications shall be issued separately and the proceedings are concluded accordingly.

COMMISSIONER

Appearances:

Mr A Jacka appeared for the Maritime Union of Australia.

Mr B Matthey appeared for the Australian Institute of Marine and Power Engineers.

Ms J Thompson appeared for the Australian Maritime Officers’ Union.

Mr T Saunders of Counsel appeared for Perkins Shipping Pty Ltd t/as Toll Marine Logistics.

Hearing details:

2015.

Sydney, Melbourne, Brisbane and Darwin (video hearing):

June 4.

 1   Exhibit 1.

 2   Exhibit 2.

 3   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd [2011] FWAFB 2555.

 4   The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited [2014] FWCFB 7447.

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