Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage (Australia) Pty Ltd
[2024] FWCFB 277
•4 JUNE 2024
| [2024] FWCFB 277 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Australian Institute of Marine and Power Engineers
v
Smit Lamnalco Towage (Australia) Pty Ltd
(C2024/1396)
| JUSTICE HATCHER, PRESIDENT DEPUTY PRESIDENT SAUNDERS | SYDNEY, 4 JUNE 2024 |
Appeal against decision [2024] FWC 256 of Vice President Asbury at Brisbane on 31 January 2024 in matter number C2023/1517.
The Australian Institute of Marine and Power Engineers (AIMPE) has appealed against a decision issued by Vice President Asbury on 31 January 2024 pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act).[1] The decision concerned a dispute between the AIMPE and Smit Lamnalco Towage (Australia) Pty Ltd (Smit Lamnalco) about the construction of clause 14.1 of Appendix 1 to the Smit Lamnalco (Towage) Australia Pty Ltd and AIMPE Gladstone Enterprise Agreement 2022[2] (Agreement).
The AIMPE’s notice of appeal was lodged on 7 March 2024, 36 days after the decision under appeal was issued. Rule 56(2) of the Fair Work Commission Rules 2013 (Cth), which applied prior to 27 March 2024, provided that a notice of appeal under s 604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time as may be allowed by the Commission on application by the appellant. Rule 128(2) of the Fair Work Commission Rules 2024 (Cth), which took effect on 27 March 2024, contains a provision to the same effect. Accordingly, the AIMPE requires the grant of an extension of time for its appeal. If it obtains such an extension, it further requires permission to appeal under s 604 of the FW Act.
The Agreement applies to Smit Lamnalco’s towage operations in the Port of Gladstone in Queensland. Those operations are conducted by Smit Lamnalco under an exclusive licence from the Gladstone Ports Corporation. The AIMPE represents marine engineers employed on Smit Lamnalco’s tugboats.
An important part of the Port’s operations concerns towage of inbound and outbound LNG vessels. Smit Lamnalco is required to maintain a tug on standby for emergency response while any LNG vessel is in port, and the crew must remain on the tug for this purpose so that it is ready for immediate mobilisation. This work is performed by ‘secondary’ crews who are rostered for 24-hour spans (from 0700). Clause 14.1 of Appendix 1 to the Agreement deals with ‘LNG Standby Towage’ as follows:
14.1 LNG Standby Towage
Standby towage will consist of the inbound harbour towage of the LNG vessel, the duration of the standby period, and outbound harbour towage of the LNG vessel. Non-emergency maintenance on standby is voluntary.
The order of call for standby duties on LNG terminals shall be Secondary 1 through to Secondary 6 on an alternate LNG vessel basis, to avoid extended durations on standby.
Standby up to 36 hours will trigger a 10 hour rest break. Standby beyond 36 hours will trigger a 12 hour break. (Time from crew on-board to crew ashore).
In the event of a call out by the Terminal/Regional Harbour Master/Scheduler to perform towage on another vessel in the port, it will be considered continuous duty, and a replacement crew will be engaged at the earliest opportunity.
Stand-by Manning to reduce on signing of this agreement to 1 Master, 1 Engineer, 1 GPH/IR providing the vessel is attached to a shore facility.
(underlining added)
Clause 14 separately provides for entitlements for victualling while on standby (clauses 14.2 and 14.3) and an hourly standby allowance payable for the number of hours the tug is berthed at the standby location (clause 14.4).
The dispute between the AIMPE and Smit Lamnalco concerned the underlined part of clause 14.1 above (disputed provision). It was not in dispute that the primary import of the reference to ‘continuous duty’ in the disputed provision is to attract the operation of clause 7.2 of Appendix 1, which provides for an entitlement to time off in lieu of overtime (TOIL) where an employee works in excess of 12 hours of continuous duty. The issue between the parties concerned the period of time which was to be counted as continuous duty once the operation of the disputed clause was triggered by the performance of a ‘call out… to perform towage on another vessel in the port’. The AIMPE’s position was that the disputed provision operated to deem as continuous duty the whole period from the commencement of duty to perform the inbound leg of the harbour towage of the LNG vessel to when the crew depart the tug base and go home. Smit Lamnalco’s position was that the continuous duty only starts from the time when the crew leaves the standby location to perform the towage call out and continues until a replacement standby crew is engaged or the crew receives a break sufficient to interrupt the continuity of service.
There appears to be no contest that a towage call out brings the LNG standby to an end, so that is not a matter which needs to be considered further. The gravamen of the dispute is therefore whether the effect of the disputed provision is to retrospectively render all standby time on shift before the call out as ‘continuous duty’ (the AIMPE’s position), or whether continuous duty only starts at the commencement of the call out (Smit Lamnalco’s position).
In her decision, the Vice President rejected the AIMPE’s position. The AIMPE contended below that the pronoun ‘it’ in the disputed provision referred to all duty hours during a LNG standby towage shift, including hours on standby. However, the Vice President determined that ‘it’ referred to the call out to tow a non-LNG vessel:
[73] The clause also deals with circumstances where employees are “called out” by the Terminal/Regional Harbour Master/Scheduler to perform towage on “another vessel in the Port”. It is obvious that the reference to “another vessel in the Port” is a reference to a vessel other than the LNG vessel which is the subject of the LNG Standby on which employees are engaged, when the call out occurs. As a matter of logic, the towage of the other vessel, must occur at a time where the crew is standing by waiting to undertake towage of a particular LNG vessel, which is the subject of the standby, and cannot occur while the crew is actually undertaking inbound or outbound towage of that LNG vessel. It follows that the towage of another vessel is additional to the inbound and outbound towage of the LNG vessel subject of the standby. Further, the use of the term “called out” indicates that at the time this occurs, employees are not working or on duty, but are standing by.
[74] Accordingly, the term “it” in the fourth paragraph of clause 14.1 must refer to the towage of the other vessel. The term “continuous” requires that the towage of the other vessel described by the term “it” must be continuous with something. The two possibilities are the period of the standby at the point the towage of another vessel is undertaken, or any inbound or outbound LNG towage that has been undertaken by the crew during the standby. Given that the subject of the clause is “LNG Standby Towage” and the term “it” refers to towage on another vessel, it follows that what is continuous, are the two periods of towage. Accordingly, any towage performed during the standby period is taken to be continuous regardless of whether it is inbound or outbound LNG Towage or other towage that the crew is called out to perform while standing by. Duty therefore commences at the point the crew undertakes the first period of towage. It also follows that if employees have performed both inbound and outbound LNG towage before being requested to undertake the towage of another vessel, all three periods of such duty are continuous. Where such a callout occurs, the Company is required to engage a replacement crew at the earliest opportunity. The result will also be that the periods of duty and the periods the crew is standing by are added together for the purposes of determining whether the crew is entitled to a 10- or 12-hour break.[3]
The Vice President went on to find that the time prior to the call out spent on LNG standby did not constitute duty hours under the Agreement, and that employees engaged on LNG standby were compensated for this by way of the victualling entitlements and the hourly standby allowance in addition to their base rate of salary.[4]
The AIMPE’s five grounds of appeal focus upon the proposition that the Vice President erred in determining that time spent while on LNG standby did not constitute ‘work’ or ‘duty’. The AIMPE contended that the crew were required to stay on the vessel during standby, perform watchkeeping duties of the tug systems and engines and fulfil statutory duties, and this constituted the performance of duty.
We do not consider that the AIMPE has advanced any reasonably arguable case that the Vice President’s interpretation of the disputed provision was incorrect. We agree with the Vice President that the disputed provision can only be read on the basis that the pronoun ‘it’, which serves to identify what is to be treated as ‘continuous duty’, refers to the ‘call out by the Terminal/Regional Harbour Master/Scheduler to perform towage on another vessel in the port’. Plainly therefore, it is the occurrence of the call out which initiates the period of continuous duty. The AIMPE did not explain how, textually, the clause could be read as retrospectively treating time spent on standby prior to the call out as continuous duty.
That LNG standby time may be regarded as ‘work’ or ‘duty’ in a general sense is beside the point. Crews on LNG standby towage shifts are paid for all time on the shift, including hours spent on standby and, in that sense, are treated as being at work. In addition, as the Vice President noted, they receive the victualling entitlement and an hourly allowance while on standby. The use of the expression ‘continuous duty’ in the disputed provision serves to identify time which counts for the purpose of the entitlement to TOIL in clause 7.2 of Appendix 1, not to identify more generally working time which attracts payment in the normal way. The AIMPE accepted that the time spent on LNG standby did not count as ‘continuous duty’ when the disputed provision did not apply — that is, when there was no call out for towage of a non-LNG vessel during the shift. The AIMPE advanced no logical reason as to why, when a towage call out was required to be undertaken, standby time occurring before the call out which would otherwise not be counted as ‘continuous duty’ would now be treated as such.
As earlier stated, the initial issue which arises is whether we should grant an extension of time to file the appeal. Matters usually treated as relevant to a consideration of whether an extension should be granted include whether there is a satisfactory reason for the delay, the length of the delay, the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended, and any prejudice to the respondent if time were extended.[5] The AIMPE has, via a statement of evidence made by Mr Gregory Yates, its Senior National Organiser, provided an explanation for its delay in filing the appeal. We would be inclined to provide the requisite extension if we considered that the appeal had sufficient merit to attract the grant of permission to appeal. However, for the reasons stated, we do not consider that the grounds of the appeal advanced by the AIMPE are reasonably arguable.
Accordingly, we decline to extend time to file the appeal, and the matter is dismissed on this basis.
PRESIDENT
Appearances:
T Ellis and G Yates for The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’ Union.
K Brotherson, counsel, with J Luker, solicitor, and J Laughlin for Smit Lamnalco Towage (Australia) Pty Ltd.
Hearing details:
2024.
Sydney:
16 May.
[1] Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage (Australia) Pty Ltd[2024] FWC 256 (‘AIMPE v Smit Lamnalco’).
[2] Application by Smit Lamnalco Towage (Australia) Pty Ltd [2022] FWCA 3018; AE517259; AG2022/2396.
[3] AIMPE v Smit Lamnalco[2024] FWC 256.
[4] Ibid [76]–[77].
[5] Snyder v Helena College Council[2019] FWCFB 815 [11].
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