Australian Maritime Officers' Union, Australian Institute of Marine and Power Engineers v Smit Lamnalco (Towage) Australia Pty Ltd
[2023] FWC 1258
•29 MAY 2023
| [2023] FWC 1258 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Maritime Officers’ Union, Australian Institute of Marine and Power Engineers
v
Smit Lamnalco (Towage) Australia Pty Ltd
(C2020/9257; C2022/220)
| VICE PRESIDENT ASBURY | BRISBANE, 29 MAY 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]
This Decision concerns applications made by the Australian Maritime Officer’s Union (AMOU) and the Australian Institute of Marine and Powers Engineers (AIMPE) pursuant to s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with disputes under the dispute resolution procedures in the Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2016 and the Smit Lamnalco (Towage) Australia Pty Ltd and AIMPE Gladstone Enterprise Agreement 2016 (collectively, the Agreements). The Respondent in both applications is Smit Lamnalco (Towage) Australia Pty Ltd, the employer covered by the Agreements.
The agreed questions for determination and my answer to those questions are as follows:
Question 1 – Should Masters and Engineers be paid overtime when working more than 12 hours in 24 hours, where they do not work a block of more than 12 hours?
Answer: Not necessary to answer.
Question 2 – In what circumstances (if any) can employees scheduled hours of duty exceed 12 hours?
Answer: ‘Scheduled hours of duty’ for the purposes of clause 7.1 of Appendix 1, and ‘scheduled hours of work’ for the purposes of clause 7.3 of Appendix 1, are hours scheduled in accordance with clause 10 of Appendix 1, for crews rostered on Primary Day Tugs, Primary Night Tugs and Secondary Tugs, within their span of duty, based on their allocation to vessels, in accordance with Vessel Rosters in clause 5. The fact that an employee is rostered on a Secondary Tug, does not represent scheduled hours of duty and work for the purposes of clause 7.1 of Appendix 1.
As provided in clause 7.1 of Appendix 1, scheduled hours of duty should ordinarily not exceed 12 hours, but may exceed 12 hours where ‘operational requirements’, including additional shipping, arise and the employee ‘works beyond 12 hours’ to meet those operational requirements, as provided in clause 7.2 of Appendix 1.
As provided in clause 7.3 of Appendix 1, an employee’s scheduled hours of duty can only exceed 14 hours of ‘continuous duty’ in ‘unusual operational circumstances’ which may include weather events, breakdown, and extended maintenance, that disrupt operations. Additional shipping is not an unusual operational circumstance, but shipping changes because of unusual operational circumstances of the kind listed above, may be an unusual operational circumstance.
The nominated rest breaks in clause 7.7 of Appendix 1, break the continuity of duty. Accordingly, where employees have nominated rest breaks as required by clause 7.7, the total number of scheduled hours of duty/work may exceed 12 hours, and employees may have multiple starts in a 24-hour period.
Question 3 – Where an employee is required under clause 6.3 of Appendix 1 of the Agreement to be contactable and to return to work within 30 minutes, are these duty hours for the purposes of clause 7.1 of Appendix 1?
Answer: Where employees are rostered on Primary Tugs, hours during which they are required under clause 6.3 of Appendix 1 to be contactable and return to work within 30 minutes, are duty hours for the purposes of clause 7.1 of Appendix 1.
Where employees are rostered on Secondary Tugs, hours during which they are required under clause 6.3 of Appendix 1 to be contactable and return to work within 30 minutes, are not duty hours for the purposes of clause 7.1 of Appendix 1.
Question 4 – For hours of duty that exceed 12, are employees entitled to accumulate time off in lieu under clause 7.2 of Appendix 1 of the Agreement?
Answer: Employees are entitled to accumulate time off in lieu under clause 7.2 of Appendix 1, where they work beyond 12 hours and do not receive a nominated rest break in accordance with clause 7.7 of Appendix 1.
Reasons for Decision will be issued separately.
VICE PRESIDENT
Appearances:
Mr L Tiley of Hall Payne Lawyers, for the Australian Maritime Officers’ Union.
Mr T Spence of Counsel, for the Australian Institute of Marine and Power Engineers.
Mr K Brotherson of Counsel, instructed by Hall&Wilcox, for Smit Lamnalco (Towage) Australia Pty Ltd.
Hearing details:
2022.
By Microsoft Teams (Video):
15, 16 November.
22 December.
Final written submissions:
The Australian Maritime Officers’ Union, 19 December 2022.
The Australian Institute of Marine and Power Engineers, 19 December 2022.
Smit Lamnalco Towage (Australia) Pty Ltd, 8 December 2022.
Printed by authority of the Commonwealth Government Printer
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