Australian Maritime Officers' Union, the Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage (Australia) Pty Ltd

[2023] FWC 1526

[2023] FWC 1526

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.739—Dispute resolution

Australian Maritime Officers’ Union, The Australian Institute of Marine and Power Engineers
v

Smit Lamnalco Towage (Australia) Pty Ltd

(C2020/9257; C2022/220)

VICE PRESIDENT ASBURY BRISBANE, 26 JUNE 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]

Background and issues in dispute

1. The Australian Maritime Officer’s Union (AMOU) and the Australian Institute of Marine and Powers Engineers (AIMPE) apply to the Fair Work Commission (Commission) under s. 739 of the Fair Work Act 2009 (the Act) for the Commission to deal with disputes involving employees of Smit Lamnalco Towage (Australia) Pty Ltd (Respondent/Company), in connection with scheduling hours of work for employees operating tugboats (tugs) at the Port of Gladstone.  

1. The Respondent has an exclusive licence from the Gladstone Ports Corporation (GPC) to provide towage services for the Port and has guaranteed to GPC that it will provide a specified number of tugboats, over 24 hours per day, on 365 days of the year, to meet the Port’s general shipping requirements.  Those tugboats must be ‘manned for operation’ on 30 minutes notice, by a crew, consisting of one employee in each of the classifications of Master, Engineer and General Purpose Hand (GPH). Masters are represented by the AMOU and Engineers by the AIMPE. 

1. The disputes have been notified under the dispute resolution procedures contained in clause 8 of 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 2016 Agreements).  Other than the classifications of employees covered, the 2016 Agreements are identical, and respectively cover Masters and Engineers employed by the Company.  Employees classified as GPHs are covered by a separate agreement made with the Maritime Union of Australia and are not party to the disputes subject of these proceedings. 

1. The provisions of the 2016 Agreements relevant to the disputes are found in Appendix 1, entitled ‘Rosters of Work and Operational Standards’.  Appendix 1 of the 2016 Agreement contains provisions concerning rosters for crews and vessels, and is the subject of a non-publication order, on the basis that it contains confidential operational information, the publication of which would be contrary to the Company’s interests.  Vessel Rosters designate certain numbers of tugboats as Primary or Secondary Tugs while Crew Rosters allocate crews to operate those tugboats in accordance with the Vessel Rosters.   Primary Tugs are designated as ‘day’ or ‘night’ and are operated by crews rostered for 12-hour spans from 0700 to 1900 and 1900 to 0700, respectively. Secondary Tugs are operated by crews rostered for 24-hour spans from 0700 to 0700. 

1. Crew Rosters provide for employees to rotate over a 28-week roster cycle during which they are rostered on for 14 weeks and have 14 weeks off.  During the 14 weeks they are rostered on, employees work for a total of 6 weeks on Secondary tugs and 8 weeks on Primary tugs, in a series of rotations.    The 2016 Agreements provide for employees to leave the tugs and the workplace when they are rostered on but are not required to undertake towage or maintenance duties.  During this time, employees are required to make themselves ‘available’ to ‘turn-to’ for duty on 30 minutes notice.  It is common ground that employees ‘turn to’ when they board a tugboat.  Employees are paid their full salary for the time they are available.  

1. Relevantly, Appendix 1 provides at clauses 7.1 and 7.3 respectively, that scheduled hours of ‘duty’ and ‘work’ should not ordinarily exceed 12 hours.  Clause 7.2 provides entitlements to Time Off in Lieu of Overtime (TOIL), in circumstances variously described as where an employee ‘works’ or ‘remains on duty’ beyond 12 hours.  An entitlement to nominated rest breaks of various durations in clause 7.7 arises when employees are required to be on ‘continuous duty’ and that clause also provides that nominated rest breaks for specified hours break the ‘continuity of duty’.

1. The parties agree that the dispute involves issues of scheduling of hours and what constitutes ‘work time’ for the purposes of entitlements to rest breaks and TOIL.[1]   The dispute requires a number of issues to be determined, including whether:

• the Respondent is permitted to schedule employees to work more than 12 hours in a 24- hour period, and if so, in what circumstances;

• hours are counted cumulatively or consecutively for the purposes of hours limitations in clauses 7.1 and 7.3 and entitlements to TOIL in clause 7.2;

• the 12-hour limitation on work/duty is reset when employees take nominated rest breaks in accordance with clause 7.7 and the 12-hour count starts again, or time worked prior to the nominated rest pause is added to time worked after the rest pause for the purposes of calculating whether 12 hours has been worked; and

• all hours when employees are required to be available, is work/duty for the purposes of hours limitations in clause 7.1 and 7.3.

1. The Unions contend that the 12-hour limitation for the purposes of clauses 7.1 and 7.3 applies to all hours of work/duty in a 24-hour period, whether worked consecutively or cumulatively, including when periods where employees have left the worksite and are required to be available for duty.  While accepting that the nominated rest breaks are not duty and have the effect of breaking continuity of duty, the Unions contend that the hours on either side of a nominated rest break are duty, and count cumulatively for the purposes of calculating the number of hours an employee has worked in a 24-hour period.   The Unions further contend that the Respondent can only schedule hours of work/duty in excess of 12, in unusual operational circumstances such as cyclone, storm, emergency in the Port, breakdown or extended maintenance and that extra shipping is not an unusual operational circumstance.

1. The Respondent contends that the terms ‘duty’ and ‘work’ in clause 7 are synonymous, and that the 12-hour limitation in clauses 7.1 and 7.3 is to be understood as 12 continuous hours of work/duty.  The Respondent also contends that the entitlement to accumulate TOIL where employees undertake work/duty beyond 12 hours, arises when hours of duty/work are continuous.  The Respondent’s contended construction of the 2016 Agreements is premised on a distinction between primary and secondary shifts, on the basis that rostering of an employee on a Primary Tug is a firm rostering of duty/work, while rostering for a Secondary Tug is rostering of availability to ‘turn-to’ for duty or work. 

1. In the case of Secondary Tugs for which crews are rostered for 24 hour periods, and aside from a specific arrangement for LNG Standby, the Respondent’s position is that the calculation of continuous hours of undertaking work/duty commences from the actual ‘turn-to-time’ of the employee going on board the tug and concludes with the employee going onshore after each attendance, and that there can be multiple starts per day with continuity of duty being broken by a nominated rest break in accordance with clause 7.7, so that the count in relation to continuous work/duty is restarted. 

1. The Respondent accepts that all 12 rostered hours of shifts on a Primary Tug are continuous work/duty and that where an employee works beyond those 12 continuous hours, an entitlement to TOIL arises.  The Respondent contends that where work/duty time is calculated on primary shifts, for the purposes of determining whether more than 12 hours have been worked, that time is also calculated from the actual turn-to-time of the employee going on board the tug and going ashore after each attendance in the same way as it is calculated for secondary shifts. 

1. The Unions accept that there is no dispute about employees who work more than 12 consecutive hours in a 24-hour period as the Respondent agrees that in such circumstances employees are entitled to accrue TOIL for hours of work/duty in excess of 12.  As a result, the dispute primarily relates to secondary shifts.  The Unions disagree with the Respondent’s position in relation to the effect of nominated rest breaks and how time when employees are available but not in the workplace, is counted for the purpose of calculating whether employees have undertaken work/duty in excess of 12 hours. 

1. The progression of the 12 in 24 disputes was subject to delay while negotiations for replacements for the 2016 Agreements were conducted.  The 2016 Agreements reached their nominal expiry date on 31 December 2020. Negotiations for replacement agreements became protracted, largely because the parties were unable to agree on provisions to replace those on which the 12 in 24 disputes centre.  On 21 December 2020, the Respondent made an application to the Commission seeking that the Commission deal with a bargaining dispute over the negotiation of replacements for the 2016 Agreements (the bargaining dispute).[2] On 21 December 2021 the Respondent applied to terminate the 2016 Agreements.  The termination applications were not pressed and were withdrawn on 5 July 2022.

1. Ultimately, the parties abandoned attempts to negotiate replacement agreements including provisions to address the issues subject of the current dispute and agreed to roll over the 2016 Agreements.  The Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2022 and the Smit Lamnalco (Towage) Australia Pty Ltd and AIMPE Gladstone Enterprise Agreement 2022 (the 2022 Agreements) commenced operation on 7 September 2022.  The 2022 Agreements include identical terms to the disputed terms in the 2016 Agreements.   The arbitration of the 12 in 24 disputes arising under the 2016 Agreements proceeded on the basis that the disputes had not been resolved.

The dispute notifications

1. The application in C2020/9257 was made by the AMOU on 24 December 2020 and was one of several related applications about the interpretation of the 2016 Agreements.  In its original Form F10 application, the AMOU described the dispute as being concerned with Masters ‘not being paid overtime when working more than 12 hours in 24 unless it is in a block of more than 12 hours. For example, this does not compensate a Master who worked 9 hours, had 7 hours break, then worked 8 more making a total of 17 hours in 24’. The relief sought by the AMOU was for the Commission to determine ‘whether Masters should be paid overtime when working more than 12 hours in 24 if the work is broken up throughout the day’.  Conferences were held to attempt to resolve the dispute.  The AIMPE sought, and was granted, permission to participate in the conferences as an interested party on the basis that the AIMPE Agreement is in identical terms to the AMOU Agreement.

1. The AIMPE sought to become a party to the AMOU dispute and subsequently filed a separate application on 4 January 2022 – C2022/220 – describing the dispute as follows:

“1. The dispute relates to the respondent ordinarily planning hours to exceed 12 within a 24 hour period in non-compliance with Appendix 1, Item 7.1 and

2. Not complying with the entitlement under Appendix 1:

-   Item 7.2 to accumulate time off in lieu for working in excess of 12 hours and;

-   Item 7.3 not providing rest breaks where there is no obligation to be contactable and turn to at 30 minutes notice.’

1. On 7 January 2022, the AMOU filed an amended application describing the issues in dispute in the following terms:

‘1. Masters are not being paid overtime when working more than 12 hours in 24 hours unless it is in a block of more than 12 hours. For example, this does not compensate a Master who worked 9 hours, had 7 hours break, then worked 8 hours more making a total of 17 hours in 24hours. The AMOU contends that overtime should be paid in such circumstances.

2.Masters’ scheduled hours of duty are regularly exceeding 12 hours. Some examples are set out in the document annexed and marked “A”. The AMOU contends that this is not permitted by clause 7.1 of Appendix 1 of the Agreement.

3.Whether, where a Master is required under clause 6.3 of Appendix 1 of the Agreement to be contactable and to return to work within 30 minutes, these are duty hours for the purposes of Item 7.1. The AMOU contends that they are.

4.Whether, for hours of duty that exceed 12, Masters are entitled to accumulate time off in lieu under clause 7.2 of Appendix 1 of the Agreement. The AMOU contends that they are.”

1. I determined to join the matters and to conduct a single hearing in relation to them.  Directions were issued on 10 January 2022 requiring the parties to exchange a one-page position paper and to confer with a view to agreement on questions for arbitration.  The parties were also directed to file agreed (or competing) questions for arbitration by 21 January 2022.   The directions further required that the parties file and serve material and that they confer with a view to filing an agreed statement of facts.   An agreed Statement of Facts was filed by the parties on 25 May 2022, and is Annexure A to this Decision. 

Questions for arbitration

1. Agreement was not reached between the Unions and the Respondent on the questions for arbitration and the parties filed competing questions.  The questions initially posed by the AMOU/AIMPE were as follows:

“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?

2.In what circumstances (if any) can Masters’ and Engineers’ scheduled hours of duty exceed 12 hours?

3.Where a Master or Engineer is required under clause 6.3 of Appendix 1 of the Agreement[s] 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?

4.For hours of duty that exceed 12, are Masters and Engineers entitled to accumulate time off in lieu under clause 7.2 of Appendix 1 of the Agreement?”

1. The questions proposed by the Company were as follows:

“1.Does the Agreement give rise to an entitlement for employees to be paid overtime when working more than 12 hours in a 24 hour period, where they do not work in excess of 12 continuous hours?

2. Does clause 7.2 of Appendix 1 to the Agreement give rise to an entitlement for employees to accrue time off in lieu when working more than 12 hours in a 24 hour period, where they do not work in excess of 12 continuous hours?

3. Does the Agreement permit employees’ scheduled hours of duty to exceed 12 hours in a 24 hour period?

4. Where an employee rostered on a Primary Tug is not performing work but is required under clause 6.3 of Appendix 1 to the Agreement to be contactable and ‘make themselves available for towage at any time’ during the 12 hour span of duty within 30 minutes, are these ‘hours of duty’ for the purpose of clause 7.1 of Appendix 1?

5. Where an employee rostered on a Secondary Tug is not performing work but is required under clause 6.3 of Appendix 1 to the Agreement to be contactable and ‘make themselves available to fulfil operational needs at any time’ during the 24 hour span of duty within 30 minutes, are these ‘hours of duty’ for the purpose of clause 7.1 of Appendix 1?

1. The Unions later confirmed that they did not press the first question and the associated contention that employees have an entitlement to be paid overtime in circumstances where they are required to work in excess of 12 hours.[3] In relation to its other proposed questions, the AMOU submitted that the way the disputed issues are framed at question 2.1 is consistent with its amended application and that the questions are fair as between the parties, because they are expressed in neutral terms and do not incorporate any disputed facts. The AMOU acknowledged that whilst question 2 is somewhat open ended, it is necessary to frame the question in this manner to resolve the dispute about when the impugned practice (being a reference to the alleged practice by the Respondent of scheduling hours of duty for more than 12 cumulative hours within a 24-hour period) can and cannot occur.[4]  

1. The AMOU summarised the matters the Commission will need to determine as: which hours count; the extent to which the practice of scheduling more than 12 hours of work in 24 is permitted; and when that practice is permitted, whether employees are entitled to time off in lieu of overtime (TOIL).[5]   The AMOU also submitted that the Commission should answer the questions it posed, because the Company had answered those questions in its submissions and had not pressed its own proposed questions.

1. The AIMPE submitted that the issue in dispute is if, or under what circumstances, the Respondent is permitted by the 2016 Agreements to ordinarily schedule employees for hours of duty in excess of 12, and what entitlements arise when employees undertake such duty.  Counsel for the AIMPE stated that it endorsed and adopted the submissions of the AMOU in relation to the questions for arbitration.[6] In closing submissions, the AIMPE said that the Company’s answers to the Unions’ questions have narrowed the issues in in relation to questions 3 and question 4.[7]

1. In its outline of submissions filed on 21 March 2022, the Respondent accepted that it had not pressed its questions for arbitration and said that the absence of agreement between the parties in this respect should not be a distraction from the resolution of the matter or prevent the Commission from answering the questions as it determines appropriate.[8]  The approach taken by the Respondent, was to advance a contention as to how different provisions of the Agreement are to be construed, operate and move together, so that if the Commission were to accept the construction advanced by the Respondent, it would be determinative of the answers to the questions posed by the Unions.  This approach would also answer any other questions that may arise given that the 2016 Agreements have a long history of disputation, and further disputes involving another question may arise. [9] 

1. In closing submissions in reply, the AMOU objected to the Respondent advancing its contention contending that “litigation is not a free for all”[10] and that the Respondent’s contention was inconsistent with the position paper it had filed in response to directions, and had morphed from an argument to help the Commission understand the Respondent’s answers to the proposed questions for arbitration, to a standalone claim by the Respondent for findings that align with its contention.  In particular, the AMOU referred to the Respondent’s contention that the calculation of continuous hours of undertaking work/duty commences from the actual time of the employee going on board the tug.  The AMOU said that this did not arise and was a new submission which, if dealt with in these proceedings, would result in a denial of procedural fairness to the Unions.  The contention was also said to concern the subject matter of other disputes, which the Respondent had attempted to join to these proceedings and had then abandoned that attempt.[11] 

1. In the alternative, the AMOU submitted that if the Respondent’s contention is entertained, there is no reason why it should be determined as a preliminary step, or before the Applicant’s questions.  As the AMOU is the moving party, the Commission would resolve its case before moving to what is essentially a counter claim by the Respondent.

Procedural matters

1. In support of the AMOU’s case, witness statements were provided by:

• Mr John Sharp[12], Training Captain

• Mr Mark Robertson[13], Tug Master; and

• Mr Michael Farrar[14], Tug Master.

1. In support of the AIMPE’s case, witness statements were provided by:

• Mr Stuart Snell[15], Chief Engineer;

• Mr Laurence Purcell[16], Chief Engineer;

• Mr Graham Coyne[17], Chief Engineer;

• Mr Wayne Gaynes[18], Chief Engineer;

• Mr Greg Yates[19], Senior National Organiser of the AIMPE; and

• Mr Brett Langridge[20].

1. The Respondent filed an outline of submissions on 31 March 2022 in response to the material filed by the Unions. In addition, the Respondent filed a bundle of Industrial Instruments comprising a table comparing the provisions of the 2016 Agreements with those contained in the predecessor 2015 and 2012 Agreements. Full copies of the 2012, 2015 and 2016 Agreements were also included in the bundle. On 14 November 2022, the Respondent filed an additional bundle of documents and each individual document contained in the bundle was tendered into evidence.[21] In support of the Respondent’s case, witness statements were provided by:

• Mr Peter Sedgwick[22], General Manager of the Respondent; and

• Mr Evan Milne[23], General Manager North Queensland of the Respondent.

1. On 18 August 2022, the parties jointly requested that the applications be listed together for a hearing not before 1 November 2022 due to issues relating to the availability of witnesses. The Unions sought an in-person hearing to be conducted in Gladstone while the Company indicated its preference that the hearing be conducted remotely by video conference or at the Commission’s premises in Brisbane.

1. For reasons including limited availability of court rooms in Gladstone, advice that several witnesses based in Gladstone were not required for cross-examination and availability issues with other witnesses, agreement was reached between the parties that the hearing listed for 15 and 16 November 2022 be conducted by video using Microsoft Teams. At the hearing, the AMOU was represented by Mr L Tiley of Hall Payne Lawyers. The AIMPE was represented by Mr T Spence of Counsel directly instructed by the AIMPE and the Respondent was represented by Mr K Brotherson of Counsel instructed by Hall & Wilcox. Permission was granted on the basis that I was satisfied, pursuant to s. 596(2)(a) of the FW Act, that the involvement of legal representatives would enable the matters to be dealt with more efficiently, taking into account their complexity.

1. Witnesses for the AIMPE, Mr Sharp and Mr Robertson, were not required for cross-examination.  Mr Farrar was cross-examined.  Witnesses for the AMOU, Mr Snell, Mr Purcell, Mr Coyne, and Mr Gaines were not required for cross-examination.  Mr Yates and Mr Langridge were cross-examined.  Witnesses for the Respondent, Mr Sedgwick and Mr Milne were not required for cross-examination.

1. Closing submissions were filed in witing by the AMOU and AIMPE on 16 November 2022 and closing submissions in reply on 19 December 2022. The Respondent’s closing submissions were filed in writing on 12 December 2022. A brief oral hearing was conducted on 22 December 2022 for the purposes of the parties speaking to their closing submissions.

1. I accept that the witnesses who gave evidence on behalf of the AMOU and AIMPE were truthful and genuinely hold concerns about the scheduling of their hours of work.  However, much of their evidence was not relevant to the proper construction of the Agreement and would have been relevant had the proceedings concerned a merits application about the reasonableness of the Company’s rostering arrangements within the parameters of the Agreements, rather than whether the Agreements allow those hours to be worked.  While it is understandable that the Company provided evidence in response, much of that evidence was also not relevant to the proper construction of the 2016 Agreements.  I have considered all the evidence but have discussed only the evidence relevant to the matters I am required to determine.

The approach to construction of enterprise agreements

1. The provisions of the 2016 Agreements relevant to the disputes are set out in Annexure B to this decision. Given that the 2016 Agreements are in terms that are substantially the same, I discuss the relevant provisions of the AMOU Agreement. The Appendices to the Agreements, detailing Rosters of Work and Operational Standards, including Appendix 1 which contains the disputed provisions, are subject to a confidentiality order under s. 594(1) of the Act.  I have not included details of those provisions in the body of this decision and discuss them to the minimum extent necessary.  The relevant provisions of the 2016 Agreements are set out in Annexure B to this decision.

1. The approach and the principles relevant to the task of construing the terms of an enterprise agreement were set out in a Decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[24].  The relevant passage setting out the principles is well known, and it is not necessary to cite it.   More recently, in AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital[25], a Full Bench of the Commission distilled those principles from the Full Court of the Federal Court majority in James Cook University v Ridd[26] as follows:

“The starting point is the ordinary meaning of the words, read as a whole and in context.

A purposive approach is preferred to a narrow or pedantic approach – the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose. 

Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.

Context may include ideas that gave rise to an expression in a document from which it has been taken.

Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.

A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.

Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”[27]

1. In an earlier decision in relation to the same dispute[28], the Full Bench said that: ‘…the common intention of the parties to an agreement is to be discerned from the terms in which they have expressed their agreement, not from their subjective statements about their intentions’ citing the decision of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[29] which said:

   “It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations.  What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.  References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement.  The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean.”[30]

1. The Full Bench went on to observe that this principle was applied to the construction of enterprise agreements made under the FW Act in AMWU v Berri Pty Limited,[31] where a Full Bench said: ‘The  common  intention  of  the  parties  is  sought  to  be  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,  without  regard  to  the  subjective  intentions  or expectations of the parties.’[32]It is also well-established that the context of a disputed provision is significant.  In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine[33] a Full Bench of the Commission set out the explanation of the significance of context, given by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA[34] which emphasised the following matters:

·   Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means[35] and there is always some context to any statement;[36]

·   Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;[37]

·   To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;[38]

·   The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;[39] and

·   The meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction[40]

1. The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.  In principle 15 in Berri the Full Bench dealt with the relevance of post-agreement conduct to the construction of the terms of an enterprise agreement citing the judgment of Gray J in ALHMWU v Prestige Property Services Pty Ltd[41] in which his Honour observed that:

“I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken however, to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.”[42]

1. In that case Gray J then went on to observe that the case he was dealing with was not one where a party had changed its mind and gone back on a common assumption but rather, one where no common assumption ever existed.[43] Also relevant in the present case are the observations his Honour made in Shop Distributive and Allied Employees’ Association v Woolworths Limited[44] as follows:

“If the presumption of consistent use of terminology is so weak in legislative drafting, it must be even weaker in the context of a Certified Agreement. Typically such agreements are the product of hard negotiation, in which the wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are often transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.”

1. These observations are apposite where parties have rolled over an enterprise agreement, including disputed terms, in the knowledge that those terms are disputed.  This is essentially what occurred in the present where the parties agreed in 2022, to roll over the 2016 Agreement, including a term about which they had been in dispute since at least 2019.   I have applied these principles to determining the matters in dispute in the present case. 

Evidence

AMOU/AIMPE

1. Mr Robertson and Mr Sharp described that they work a combination of day shifts, secondary duty and night shifts. While the shift pattern varies, their usual shift pattern is: day shift for seven days, secondary duty for seven days, night shift for seven days, three weeks off shift, secondary duty for 14 days and then two weeks off shift.  The day and night shifts described by Mr Sharp and Mr Robertson are worked while they are rostered on primary shifts.  When on day shift, they state that they are ‘captive’ in the sense that they are required to stay at the base between 0700 and 1500, Monday to Friday and during those hours, are required to attend to maintenance duties if there is no shipping and are not permitted to leave the base until 1500. After 1500, they can leave the base if not required for shipping, but they are required to be on call until to 1900. If they are recalled to work between 1500 and 1900, they are required to stay at the base and be ready to work within 30 minutes of being recalled. During night shift, employees are not ‘captive’ and there is no requirement to perform maintenance work between shipping. If they are recalled to work between 1900 and 0700, while on night shift, they are required to be at the base and ready to work within 30 minutes of being recalled.

1. When on secondary duty, they must be available to work at any time, 24-hours a day, for the duration of secondary duty. While they can leave the base if not required for shipping, if they are recalled to work, they are required to be at the base and ready to work within 30 minutes of being recalled. If they are rostered for secondary duty, they can be required to perform up to 8 hours of maintenance between 0700 and 1500 hours (except weekends and public holidays). Arrangements for maintenance duties are made in consultation between the tug crew and schedulers and can only take place after the crew have had a 10-hour break.

1. Mr Sharp and Mr Robertson gave evidence about occasions when they have worked more than 12 hours in a 24-hour period and contend that this usually occurs due to shipping numbers.  Mr Robertson also asserted that the Company sometimes takes Primary Tug crews off towage work and allows them to do maintenance work, meaning that if extra tugs are required due to shipping demands, the towage work is passed on to crews on secondary duty. There is no disincentive against this, as the Company maintains there is no penalty for crews on secondary duty working more than 12 hours of duty in a 24-hour period.  It is also sometimes the practice of the Company to schedule a secondary crew for a maintenance shift, give them a 7-hour (or longer) break, and then bring them back for a towage shift.

1. Mr Sharp and Mr Robertson also gave evidence about the impact of having to make themselves available for duty at 30 minutes notice contending, in summary, that they are unable to engage in normal activities during these times, are subject to stress at the prospect of being called in at any moment, do not have proper rest and are unable to plan activities at these times.

1. Mr Sharp and Mr Robertson accrue TOIL where they work more than 12 hours continuously (i.e. a single block of more than 12 hours, or more than one block totalling more than 12 hours with a break/or breaks of not more than 7 hours in between) and take no issue with this practice. However, both employees take issue with the Company not paying overtime and not accruing TOIL on occasions where they work more than 12 hours in a 24-hour period in two or more blocks, with a break/or breaks of more than 7 hours in between.  Mr Sharp considers that this practice is unfair and a breach of the 2016 Agreement.   Mr Sharp is also concerned about the issue of fatigue management and states that if the Union wins the dispute, then the hours of work ordinarily scheduled should not exceed 12 hours, allowing for proper breaks. If the Union loses the dispute, then crews can be worked up to 17 hours in a 24-hour period while only getting a 7-hour break before being required to be back at work. 

1. In their reply statements, Mr Sharp and Mr Robertson took issue with the matters set out in the statement of Mr Sedgwick maintaining that there is considerable flexibility across day prime, night prime and secondary shifts.  Issue was also taken with the way that the Company organises work and uses secondaries and with Mr Sedgwick’s assertion that secondaries are underutilised.  In response to this assertion, Mr Sharp said that it is not the purpose of secondary crews to provide regular towage and while contact hours are not referred to in the Agreements, those hours as described by Mr Sedgwick depend on the shipping schedule and whether the secondary crew is required by the Company to attend to those towage needs. 

1. Mr Robertson disagreed with Mr Sedgwick’s contention that the “relevant” 24-hour period commences at 0700 am and said that start times while on secondary duty vary, and fatigue does not reset at 0700 each day.  Mr Sharp also took issue with Mr Sedgwick’s evidence that the Company does not generally have the ability to change the Port Shipping Schedule and said that the Company Schedulers can, and do, seek alterations to align with crew availability and the Port accommodates these requests as tugs may be otherwise unavailable. 

1. In relation to Mr Sedgwick’s assertion that Schedulers try to give secondary crews as many breaks as possible to ensure that they remain well rested, Mr Sharp said that when schedulers nominate a rest break before an employee leaves a tug it is always for the minimum of seven hours which results in only five hours of rest, by the time he returns home.  In response to Mr Sedgwick’s evidence that the Respondent does not regularly schedule employees to work more than 12 cumulative hours, Mr Sharp said that Mr Sedgwick has only considered instances of crews working more than 12 hours in a 24-hour period, starting exclusively at 7.00 am.  A crew can be called in to do towage work at any time, and multiple times in any 24-hour period, while rostered on secondary duty.   

1. Mr Farrar also took issue with the period analysed by Mr Sedgwick as the basis for his statement that the Company does not regularly roster employees to work more than 12 cumulative hours and said it is not a fair reflection of the Company’s ordinary operations. In response to Mr Sedgwick’s evidence that during a rest break, crew can check the shipping schedule using a website established by the Company to manage their time, Mr Sharp said that the website was established at a time when there was an enterprise agreement with different criteria for when you could and could not work, including the steam timetable.  Now the shipping schedule changes more frequently.  Mr Farrar explained that most of the work that comes through the Port is from coal and gas operations and that throughout December and January, the Port experiences delay due to shortages of employee availability along the supply chain and because of inclement weather which is common during this period and slows down outputs from mines.  This impacts how often and when ships get loaded. 

1. In response to Mr Milne’s evidence that in the negotiations for the 2016 Agreements the Unions were claiming that employees on secondary shifts would only be required to work for 12 hours and have 12 hours off to break the continuity of duty, Mr Farrar said that the claim the AMOU was trying to advance was that scheduled hours of duty would not normally exceed 12 hours. 

1. Mr Sharp and Mr Robertson also gave evidence about the duties they are required to perform before turning-to on tugboats including picking up forms from pigeonholes or supplies from stores.  Mr Farrar said that when he arrives at work, he undertakes tasks including picking up and reading paperwork, signing onto the safety management system, checking sheets and attending to handover from the previous master, before he swipes and enters the security gate.  The time taken to perform this work is not recorded in the master logs.  Witnesses for the Unions generally contended that start and finish times should be calculated from the entrance gate to the Port and said that various activities prior to boarding tugs take in excess of fifteen minutes as do handovers on completion of shifts.  

1. Under cross-examination, Mr Farrar confirmed that he understood that the term ‘turn-to’ means when employees get on the vessel and that this is the point from which the Company calculates when breaks are required.  Mr Farrar agreed that the issue subject of the present dispute primarily arises when employees are undertaking towage duties while on secondary shifts.  Mr Farrar also agreed that handover forms that were previously filled in and dropped to the scheduler’s office are now uploaded on the vessel and the next crew looks at the form on the vessel.  Toolbox meetings are also undertaken on the vessel after turn-to. 

1. Mr Yates has represented AIMPE members employed by the Respondent and its predecessor since 1 January 2011, when it commenced operations at the Port.  According to Mr Yates, the Agreement between AIMPE and the Respondent has always been reflected in clause 27 of the Agreement and clause 10.1 of Appendix 1 which Mr Yates contends are ‘unqualified that the crew are on duty apart from when the crew have been told they are on a nominated break.’ 

1. Mr Yates has participated in negotiations with the Respondent in relation to the 2016 Agreements and previously for the 2012 and 2015 Agreements.  His clear recollection in the negotiations for the 2016 Agreement is that the Respondent’s lead negotiator, Mr Evan Milne, told the AIMPE that under the proposed agreed roster, there would be no requirement for any employee to work greater than 12 hours.  Mr Yates also recalls Ms Holdsworth who was also representing the Respondent in those negotiations, nodding her head in agreement with Mr Milne’s statement.  Mr Yates took this as an affirmation of the status quo that hours exceeding 12 hours of duty in a 24-hour period would not be planned. 

1. Mr Yates said that the Respondent had a safety management system that was required to comply with requirements of the Australian Maritime Safety Authority to register tugs.  This is reflected in clause 11.1.4 of the Agreement which states that in all matters associated with employment and the management and care of employees, the Respondent will comply with or exceed all relevant standards and regulations.  Mr Yates tendered a document headed ‘Seafarers Employment and Social rights PRC-VSL-03-3003’ and said that he reads this document to apply to the Respondent’s operations in Gladstone.  Mr Yates referred to clause 4.2.4 of this document and said that the reference to a 24-hour period is the parameter within which 12 hours of duty would normally be scheduled.  The document tendered by Mr Yates states:

‘Hours of work refers to time during which seafarers are required to do work on account of the vessel.

Hours of rest means time outside hours of work; this does not include short breaks.’

1. After setting out provisions for seafarers granting one day of rest while the vessel is in port, the document goes on to state:

‘Maximum hours of work shall not exceed:

·14 hours in any 24 hour period;

·72 hours in any 7 day period.

or

Minimum hours of rest shall not be less than:

10 hours in any 24 hour period;
77 hours in any 7 day period’.[45]

1. Mr Yates has always understood that the hours of work provisions in the 2016 Agreement operate so that clause 7.1 is the overriding objective to ensure hours would not be planned to exceed 12 in a 24-hour window prospectively.  Mr Yates also understands that the rest of clause 7 would be what the engineer would be entitled to according to the duty hours, whether that might be to accumulate time in lieu or longer breaks, or both.  Mr Yates further stated that planning of hours would be a threshold of twelve but given the nature of shipping and the variables involved, there can be delays once a period of duty has commenced such as storms, breakdowns or other factors such as a late pilot boarding.

1. It is also Mr Yates’ understanding that the salary in the 2016 Agreement does not incorporate compensation for duty that exceeds 12 hours in a 24-hour period, and that is why clause 7.2 of Appendix 1 provides for engineers to accrue time off in lieu.  The time off in lieu accrues at the rate of 1 hour for each half hour worked because the salary is compensation for the predictable hours agreed in the 182-day roster, divided by 364.  While engineers and masters refer to ‘overtime’ Mr Yates understands this is a reference to accrued time under clause 7.2 of the 2016 Agreements. 

1. Mr Yates also stated that the Respondent believes it can plan work to exceed 12 hours in day-to-day normal operations.  On primary tugs, the Respondent has crew arriving before or leaving after the fixed 12-hour shifts, to perform hot handovers.  On secondary tugs, the Respondent has indicated that it has the right to schedule crews up to 17 hours in a 24-hour period with periods of duty split by 7 hours.  In both circumstances the Respondent states that there is no entitlement to accumulate time under clause 7.2 of Appendix 1 and that it is not in breach of safety standards.  Mr Yates disagrees with this position.

1. Under cross-examination, Mr Yates agreed that the annual salary in the 2016 Agreements includes compensation for being available on secondary shifts, multiple starts on a particular day and hot seat handovers for Primary shifts.[46]  Mr Yates also agreed that the additional 15 days of leave in clause 17 of the 2016 Agreements is more than the provision in the Marine Towage Award and the industry work pattern standards for which that leave compensates employees includes secondary shifts.[47]  In response to the proposition that secondary shifts are counted as days worked and that in addition employees get a day of leave, Mr Yates said: ‘That’s because the crew is paid for it.’  Further, Mr Yates agreed that turn-to time has always been the time of arrival on the vessel and is when crew commence the procedure to start the vessel.  Mr Yates rejected the proposition that turn-to time signifies the start of the working day but went on to state that it is the duty requirement to be on board the tug which is an obligation that crews have.[48]  Further, Mr Yates agreed that turn-to time is significant for calculating continuous time for the purpose of breaks, in various subclauses of clause 10 of Appendix 1.

1. In relation to the terms ‘work’ and ‘duty’ Mr Yates had the following exchange with Mr Brotherson during cross-examination:

“You'll see in schedule 1 it talks about scheduled hours of duty and then at 7.2 it uses the phrases, ‘Where an employee works’, and then at 7.3 it uses both work and duty.  As I understood what you were trying to explain earlier, you see a distinction between the terms, ‘work’, and, ‘duty’, is that right?   Yes, I do.

Can you just explain for the Commission what you see as that distinction?   The work means being, I guess, the following the turn-to time, I guess, and being on the tug and carrying out towage duties and maintenance or some other tasks under the direction or the requirements – at the requirements of the employer.  Whereas duty, it includes the time where they have to hold themselves available and fit for duty and return to the base within 30 minutes when they're not on a nominated break.  I'll just summarise it that way.  If they're not on a nominated break they remain on duty whilst they're on secondary tugs because the prime shifts have the 12-hour – the stipulated 12-hour shift times.”[49]

1. Mr Yates agreed that the present disputes arose in 2018 or 2019, when the Port became busier but maintained the issue of employees being on nominated breaks arose in negotiations in 2012.[50]  While maintaining that in practice the scenario would not occur, Mr Yates accepted that the AIMPE’s construction of the 2016 Agreements meant that an employee on the first day of a secondary shift, after a period of being rostered off, who turned on their phone at 0700 and received no orders for the first 12 hours of the secondary shift, would be required to have a nominated break from 1900 hours to 0200, and if the same employee turned their phone back on at 02.01, the employee would be required to be given a further nominated break of seven hours.[51]  Mr Yates accepted that a nominated 7-hour break breaks the continuity of duty, but stressed that the break needed to be nominated, so that the crew had the right to turn off their phone and that a break could run from when an employee left the vessel, until they next turned-to, provided that they finished duty and work.[52] 

1. Mr Yates maintained that Mr Milne stated during negotiations for the 2016 Agreements, that no one would more than 12 hours.  Mr Yates also said that the 16-hour limit is a ‘drop dead’ and maintained his view about the 12 hour statement notwithstanding his acceptance that the 2016 Agreement provides that hours in excess of 14 can be worked.[53] 

Respondent

1. Mr Sedgwick explained that the current roster allocates crews to primary or secondary tugs.  The current roster is a 28-week roster consisting of on and off rostered periods for crews, referred to as rotations. Over the 28-week period a rostered crew will be rostered on for 14 weeks and have 14 weeks off. During the 14 weeks rostered on, employees spend 6 weeks rostered on secondary tugs. There are 5 crew rotations in the 28-week cycle as follows:

a)First rotation: 3 weeks on, then 3 weeks off;

b)Second rotation: 3 weeks on, then 4 weeks off;

c)Third rotation: 3 weeks on, 3 weeks off;

d)Fourth rotation: 3 weeks on, 2 weeks off; and

e)Fifth rotation: 2 weeks on, 2 weeks off.

1. Crews rostered on any of the day Prime Tugs are rostered for a 12-hour span of duty, from 0700 to 1900 hours. The crews rostered on the day prime tugs are utilised for contracted harbour towage, LNG towage and maintenance. If not undertaking towage duties, these crews are required to complete planned maintenance between the hours of 0700 and 1500 hours in accordance with the Planned Maintenance Program under the Agreements.

1. Crews rostered on any of the night Prime Tugs are also rostered for a 12-hour span of duty from 1900 to 0700 hours. When not required to complete scheduled towage, crews on night prime shifts are permitted to leave the tugs, provided they are ready and available to return for towage work within 30 minutes of receiving notice from the Company. Completing general maintenance is voluntary for night prime crews, and crews generally opt not to undertake this work.

1. Crews on secondary tugs are rostered for 24-hours starting and finishing at 0700. The purpose of the secondary tugs is to provide coverage of towage duties as necessary while primary crews take their mandatory breaks, and to cover towage over the shift change of primary tugs, to ensure a 24-hour system of seamless coverage to customers. To provide seamless coverage, the crews on secondary tugs are rostered to be available to turn-to for work when required, on 30 minutes notice, but the actual hours of work for secondary crews is not fixed and varies significantly. The work time of employees on secondary tugs performing towage duties is calculated from their turn-to time at the tug until crew ashore time.  While secondary tugs cover a 24-hour span, crews rostered on the secondary tugs are not required by the Company to complete any mandatory planned maintenance per shift, and subject to being on standby or having towage duties, are not required to attend or be on the vessel. Secondary crews are otherwise permitted to be at home or elsewhere, provided they are ready and available for duty within 30 minutes of receiving notice.

1. When rostered on secondary tugs, other than when on standby for LNG vessels, the crews are available for potentially multiple starts in the 24-hour span and will not generally be required for more than 2 starts per shift, but on occasion may be required to do up to 3 or 4 starts per shift.  These crews are afforded minimum breaks in accordance with clause 7.7 of the Agreements. The Company’s practice and position is that a break of 7 hours breaks the continuity of duty, and other than where there have been two consecutive breaks of between 7 or 8 hours, the affected secondary crew must take a third break of no less than 12 hours.  Crews on secondary tugs are also assigned to standby towage for LNG vessels. Standby towage essentially involves being on the tug for the standby period to be available in the event of a safety or emergency when an LNG vessel is at berth. This is a particular aspect of work at the Port. The arrangements for this are separately dealt with in clause 14 of Appendix 1, including payment of a standby rate hourly allowance paid in addition to the salary, as well as an allowance for food and amenities.

1. While the Company is generally notified of the Port’s scheduled movements 36 hours in advance, the Company does not have the ability to change that schedule.  Due to the nature of marine operations, the Port Shipping Schedule changes frequently which means that required hours of work for employees performing towage duties cannot always be accurately scheduled.  To meet its license requirements, the Company requires flexibility in the availability of crews, and this is the purpose of having secondary tugs with crews available to respond to calls for when required, rather than being assigned fixed hours of work.  The requirement for work for a particular crew may also change during a shift, due to fatigue on the part of another crew, breakdowns or unexpected maintenance requirements, if an employee cannot work or the vessel is subject to a mandatory survey.

1. Mr Sedgwick accepted that it is possible for some crews on secondary tugs to work more than 12 continuous hours in a 24-hour period but maintained that the Company does not regularly schedule employees to work more than 12 consecutive hours.  Mr Sedgwick conducted a review of the rosters of scheduled towage duties, which is sent out at 1630 every day, for 1 December 2021 to 28 February 2022. In this regard, Mr Sedgwick’s evidence was that of 30 instances where a crew on a secondary tug was scheduled to work more than 12 hours in a 24-hour period, only 12 instances involved 12 continuous hours of work and the others involved 12 cumulative hours broken by a minimum break of at least 7 hours.   The 30 instances

arose in the circumstances of 540 rostered secondary shifts in the period, representing 5.56% of those shifts, and in the case of 12 continuous hours, representing 2.23% of those shifts.  As December is the busiest period for shipping, Mr Sedgwick believes this data is a fair representation of the Company’s ordinary operations.

1. Mr Milne gave evidence about earlier iterations of the 2016 Agreements, stating that the earlier 2015 Agreements provided for crews to be allocated to Primary or Secondary Tugs and that the 2016 Agreements provided for an increase in the numbers of tugs.  Mr Milne also said that secondary shifts of availability such as those for employees on secondary tugs, are common.  Secondary tugs ‘chase the shipping’ in the sense that the actual work hours of employees on secondary tugs will be dependent on shipping needs and may involve employees being required to have multiple starts or work longer hours, when the volume of shipping is greater.  Being rostered on a Secondary Tug involves availability at any time during a shift other than while on a nominated rest break, unpredictable hours of work, multiple starts in any given shift and on some occasions, working more than 12 cumulative hours in a 24-hour period.  Nominated rest breaks are provided to crews on secondary tugs to break the continuity of duty and ‘restart the clock’, which was not new in the 2016 Agreements. 

1. Mr Milne was involved in negotiations for the 2016 Agreements and since 2010 has been involved in all of the Company’s enterprise agreement negotiations nationally, aside from the negotiations for replacements for the 2016 Agreements.  Mr Milne recalls that during the negotiations for the 2016 Agreements, the Unions were claiming that employees on 24-hour secondary shifts would only be required to work for 12 hours in that period and would then be entitled to a 12-hour break to break the continuity of duty.  Mr Milne was opposed to this position and said that it would have made the Company’s operations uncompetitive for reasons including the need to increase the number of crews to cover longer breaks and limiting the Company’s ability to roster employees for multiple starts in one shift, which would defeat the purpose of having secondary shifts.  Mr Milne recalls expressing concerns to Union representatives during the negotiations about the need to maintain the license with the Port and that the Company could not agree to the 12-hour break claim as it would not be viable.

1. According to Mr Milne, a compromise position was ultimately reached whereby the Company agreed to provide a third break of 12 hours in circumstances where an employee had already had two 7 or 8 hour breaks taken consecutively. The intention behind this was to provide a longer period of rest for an employee’s third break, recognising that fatigue may build up over the course of a swing. This arrangement is recorded in clause 7.7 of Appendix 1 to the 2016 Agreements.  The Company also agreed to introduce an entitlement for employees to accrue banked leave for work performed beyond 12 continuous hours which Mr Milne understands is recorded in clause 7.2 of Appendix 1 to the 2016 Agreements.  Mr Milne said that this clause was an extra cost for the business and act as a disincentive to the business relying on employees to work more than 12 continuous hours. Mr Milne did not and would not have agreed to such an arrangement if it was intended to apply to employees working 12 cumulative (but not consecutive) hours in a 24 hour period for reasons including that this would have removed the benefit of secondary shifts where crews can be called to work multiple starts in a day subject to mandatory rest breaks and the Company had agreed to provide additional rest breaks.

1. Mr Milne also said that employees are paid an annual salary for all hours of work and overtime. This includes pay for the full 24-hour secondary shift, a day of leave for each day rostered and they receive rest breaks to break the continuity of duty. Mr Milne noted that when rostered on secondary shifts, it is not uncommon for an employee to not be required to turn-to to perform any work. It would not be financially viable for the Company to accrue the additional banked leave liability for employees working in accordance with their ordinary rostered shift.

1. In response to Mr Yates’ statement, Mr Milne denied that he agreed that employees would not be required to work more than 12 hours and would not have done so because it was never intended and could not have worked.  Mr Milne also said that the arrangement where employees on secondary shifts could cumulatively work more than 12 hours in a 24-hour period without additional payment or accrued leave was the “status quo” at the time of the enterprise bargaining negotiations for the 2016 Agreements, and there was no agreement for that to change.  While the Company would do its best to ensure employees received longer rest breaks, and not have to work beyond 12 continuous hours, given the need for and the nature of secondary shifts, including being able to call employees for multiple starts a day subject to minimum rest breaks, the possibility of an employee cumulatively working more than 12 hours in a 24-hour period remained.

1. Mr Milne also gave evidence about the Policy referred to by Mr Yates and said it is a global policy referring to ILO Guidelines which apply to international voyages by seafarers while the Company’s Gladstone operations are purely domestic.  Further, that policy is not incorporated into the 2016 Agreements.

Submissions

AMOU

1. The AMOU described the dispute as concerning employees of the Respondent working more than 12 hours in a 24 period, whether consecutively or cumulatively. In the AMOU’s view, there is no dispute about a Master who works more than 12 consecutive hours in a 24-hour period and Respondent’s contention concerns those who work more than 12 hours cumulatively. The AMOU acknowledged that the real issue in this case is a legal one, namely, how the relevant parts of the Agreement should be interpreted, particularly in relation to: 

a)which hours ‘count’;

b)the extent to which the practice of scheduling more than 12 in 24 is permitted;

c)when the practice is permitted, whether a time off in lieu (TOIL) entitlement flows to employees.

1. The AMOU contended that whether there is a difference between “work” and “duty” is not presently relevant.  Central to the AMOU’s case is that periods employees are required to be contactable and to return to work within 30 minutes of being notified, are duty hours for the purpose of clause 7.1 and count for the purposes of calculating the 12 in 24-hour maximum. 

1. According to the AMOU, Appendix 1 is anchored in clause 12 of the Agreement which is headed “hours of work and related matters” and whilst rosters and operational standards are subject to change (clause 12.2), that clause does not apply to the whole of Appendix 1. The parts of Appendix 1 that are presently relevant are not merely rosters and operational standards. Rather, they are rights and obligations of a different character which are not amenable to change under clause 12.2.

1. As to the questions proposed by the AMOU with respect to cumulative hours, it submitted that the starting point is clauses 7.1 and 7.3 which stipulate that scheduled hours of duty and work, respectively, should ordinarily not exceed 12 hours.  While the AMOU conceded that a nominated rest break of 7 hours or longer breaks the continuity of duty by virtue of clause 7.7, it contended that this does not assist the Respondent’s position, because the effects, such as fatigue, on employees who work more than 12 hours in 24 hours, with or without a break in the continuity of duty, are significant. Further, it was said that the purpose and effect of clause 7.7 is to omit the hours of the break from the calculation of the total hours of duty for an employee. In other words, any periods taken as breaks in accordance with clause 7.1 would not be “duty hours” and would not count, but the hours on either side of a break must be regarded as “duty hours”.

1. The AMOU submitted that even if employees get a break, it remains the case that the employee has been scheduled for more than 12 hours of work/duty in a 24-hour period. The entitlement in clause 7.2 to TOIL arises where an employee works beyond 12 hours. This, the AMOU said, serves to demonstrate that the Agreement is concerned with the amount of work that the employee has done, not the precise composition of the hours worked. It was contended that if the parties intended for only consecutive hours to count, they would have said so and absent such words in clause 7.2, it should be understood as contemplating both cumulative and consecutive hours. The AMOU further submitted that the Commission should not allow the Respondent to ‘game’ the Agreement by splitting shifts to avoid liability for TOIL or overtime or to re-write the Agreement by inserting words that do not exist, such as ‘continuous’.  For these reasons, the AMOU submitted that the Commission should find that the entitlement to accumulate TOIL applies when a Master works beyond 12 cumulative hours in a 24-hour period.

1. In relation to the circumstances in which a Master’s scheduled hours of duty can exceed 12 hours (Question 2), the AMOU submitted that clauses 7.1 and 7.3 countenance exceptions to the general 12-hour rule. Exceptions are by their nature extraordinary or unusual. The submission of the AMOU is that only circumstances that are by their nature extraordinary or unusual, for example, a previously unforeseen circumstance, could permit working more than 12 hours. The AMOU contended that given the clear rules in the Agreement, the structure of the employees’ remuneration and the imperative to manage fatigue, the Commission should not permit the Respondent to misuse the exception for foreseeable circumstances or the convenience of customers, at the expense of employees. Accordingly, the answer to Question 2, in the AMOU’s view, is that only the following circumstances amount to unusual operational circumstances: storm, emergency in port, breakdown, or extended maintenance.  Extra shipping is not an unusual operational circumstance.

1. With respect to Question 3, the AMOU submitted that this question turns on the construction of clause 6.3. The AMOU stated that a common feature in the 3 patterns of roster set out in clause 6.3 is that they describe the whole shift as a ‘span of duty’. For the whole of the span of duty, employees must be available to be recalled on 30 minutes’ notice, unless on a nominated rest break. This supports its contention that all such hours (except where on a nominated rest break) are duty hours. The AMOU argued that while it is uncontroversial that, at the time that they are recalled, employees are absent from the workplace and not physically performing the duties of their employment, this does not mean that those hours do not count for the purpose of whether they are on duty.  The AMOU also submitted that the Respondent has not explained how it sought to distinguish between primary and secondary tugs in answering this question in circumstances where the relevant words are the same for both.

1. While the hours employees spend waiting to be recalled are not work, the employees are still on duty because they are doing something that is asked of them by their employer, as a part of their employment.  Throughout this period, employees are tethered to their employer and keenly attentive to its needs and the evidence demonstrates that to be tethered and attentive in this way has a deleterious effect on the employees.

1. The AMOU submitted that during cross-examination, the Respondent vainly attempted to establish that the employees were at leisure during those hours, but this was strongly refuted by the oral evidence. The Respondent’s contention that employees in these circumstances “are on a rest break, just not a nominated one” fails, because there is no such concept under the Agreement, and in any event, any such contention is not established on the evidence.  The AMOU also contended that the Respondent seeks to have it both ways by having employees captive and/or available but somehow, despite the first sentence of clause 7.7, they are not ‘on duty’.

1. It was observed by the AMOU that in some industrial instruments, clauses can be found which specify that such hours are not duty hours and an ‘on call allowance’ or similar compensation is paid. The 2016 Agreements do neither, and absent some bespoke provision of the kind, the AMOU said the only available conclusion is that these are duty hours consistent with the words of the Agreement. In addition, the Respondent cannot retrospectively deem an absence to be a nominated rest break. An employee must be informed in advance, for a break to answer this description.

1. If the Respondent’s submission is that the outcomes contended for by the AMOU in this proceeding are unworkable in respect of secondary tugs given the 24-hour span of duty, any such submission should not be accepted because the Respondent can manage employees rostered on secondary tugs by putting them on a nominated rest break of 7 hours or more to ensure that they are available to work as and when required. Put another way, the Respondent cannot leave such employees on duty for hours at a time and then later complain, when the time comes for the employee to attend work, about the fact that they have already been on duty for a long time.

1. For these reasons, the AMOU submitted that Questions 3 and 4 should be answered in the affirmative, and Question 2 should be answered as follows: “Due to the following unusual operational circumstances: storm, emergency in port, breakdown, extended maintenance. Extra shipping is not an unusual operational circumstance.”

1. In closing submissions in reply, the AMOU submitted that current and former practices of the Respondent are not relevant and that the Commission should determine whether, rather than presume that, the current and former practices of the Respondent conform to the Agreement.  It was also submitted that the Respondent impermissibly reads the word ‘continuous’ into the Agreement. The absence of a word that the Respondent wishes were present does not amount to ambiguity. Further, the submission of ambiguity leads nowhere, as the Respondent brings no extrinsic evidence or similar.  The Respondent’s assertion that contrary to the AMOU submissions ‘work’ and ‘duty’ refer to the same thing, ignores the fact that the AMOU has submitted that this distinction is not relevant. 

1. The AMOU also submitted that references to the salaries under the 2016 Agreements being ‘generous’ or to employees being ‘highly paid’ invite value judgements about irrelevant considerations, are gratuitous and cannot provide a foundation for either interpretation.  The decision of the majority of the Full Court of the Federal Court in Warramunda Village Inc v Pryde[54] (Warramunda) referred to by the Respondent, is neither relevant nor binding, is not an applicable statement of general principle and is readily distinguishable from the present circumstances.  Further, the Respondent’s submission that clause 7.1 of Appendix 1 is aspirational, ignores the use of mandatory language in the clause.

AIMPE

1. In its outline of submissions, the AIMPE stated that as the two applications are being heard together and the Agreements are, for relevant purposes, identical, the Commission should regard the evidence given in one matter as evidence in the other matter. As to the structure of crew rosters, the AIMPE observed that the Agreement provides that crew rosters must provide for 182 days free of duty, leaving 182 days of rostered duty. During the rostered-on periods that are not days free of duty, crew availability is rostered according to the order of tugs in clauses 5 and 6.1 of Appendix 1.

1. The hours during which crews allocated to Primary Day Tugs, are required to perform maintenance, subject to towage duties and availability of other tugs was described by the AIMPE as a ‘captive’ period of Primary Day crews and in the residual hours, crew must remain continuously contactable, ‘available for towage at any time’, and required to ‘turn to’ on 30 minutes notice. Secondary Tugs are said to differ in their purpose and availability. Their purpose in the order of call specified in clause 5 is not for Secondary Tugs to be the priority in performing towage until the 5^th call when they are be available to fill gaps or back up for towage where primary tugs and crew are not available.

1. Secondary tug crew are also required to be continuously contactable and ‘available for towage duties or as directed by the company to fulfil operational needs at any time’ on 30 minutes notice, if not on a nominated break.[55] Provided Secondary Tug crew have had a 10-hour break beforehand and there is no towage, maintenance will be performed between 0700-1500[56], however, the priority is for Secondary tugs to be available for towage.

1. In addition, the AIMPE observed that the Agreement contains repeated references to the requirement that Engineers, while ‘rostered for duty’, must ensure they can turn to on their vessel at 30 minutes notice.[57] Clause 6.4 of Appendix 1 further confirms that employees ‘rostered on to Primary and or Secondary Tugs will make themselves available to man any of the company’s tugs or change to or from any of the tugs to meet shipping requirements during the 12/24-hour period of work that they are covering… make themselves available for multiple starts each day.’ Clause 10.1(i) further requires crews to carry their mobile phone at all times while rostered on and provides that they may only turn it off during a nominated break.

1. As to the current practice of the Respondent in relation to the rostering arrangements, the AIMPE contended that the Respondent:

a)for Primary Tugs (day and night):

·     Ordinarily schedules hours of duty before and after shift completion times for hot handovers resulting in hours of duty that exceed 12 hours; and

·     Ordinarily schedules towage jobs to extend hours of duty to exceed 12 with finish times outside

·     Fails to record crew ‘turn to’ times correctly.

b)for Secondary Tugs:

·     Ordinarily schedules hours to exceed 12 hours in single blocks and a combination of blocks of split shifts; and

·     Commonly fails to place crews on nominated breaks of 7-8 hours, requiring them to remain constantly contactable and ready to turn to within 30 minutes of a call, with resultant fatigue and disruption to their personal lives.

1. The AIMPE submitted that Clause 7 of Appendix 1 deals with two distinct issues – firstly regulating prospectively the scheduling of hours of duty, and secondly identifying the consequences of periods of duty, in the form of compensation and limitations on future duty periods. The AIMPE submitted that the principal provision regulating the prospective planning of hours of duty is clause 7.1. For Primary tugs, this is reflected in the standard scheduling set out in clause 5 in Appendix 1 of the Agreement. For Secondary tugs, the scheduling is planned according to the shipping schedule and the availability of Primary tugs and the necessity of ensuring crew are given appropriate breaks. Clause 7.1 was said to imposes a simple limitation on the scheduling of hours of duty – that scheduled hours not ‘ordinarily’ exceed 12 hours. As such, it was contended that scheduled hours may only exceed 12, for reasons or of a frequency that are not ‘commonly met with’ or not ‘the usual kind’ or not ‘customary’ or not ‘normal’.[58]

1. Correspondingly, the AIMPE submitted that clause 7.3 of Appendix 1 demonstrates that the Agreement anticipates that only ‘unusual operational circumstances’ would require actual continuous duty of 14 hours to be undertaken, beyond the 12 hours that are ordinarily scheduled.  This, the AIMPE submitted, is itself consistent with the Standards of Training Certification and Watchkeeping Code which provides for a minimum of 10 hours rest and a maximum 14 hours of duty, other than in the case of emergency or other ‘overriding operational conditions’ which:

‘…should be construed to mean only essential shipboard work which cannot be delayed for safety, security or environmental reasons or which could not reasonably have been anticipated at the commencement of the voyage.’[59]

1. The AIMPE contended that the evidence discloses that the Respondent is, as a matter of ordinary practice, scheduling engineers for duty in excess of 12 hours in a 24-hour period, without providing for nominated breaks, and it considers itself at liberty to do so. As well as being at odds with the plain meaning of clause 7.1, that practice is also entirely at odds with the common understanding of the meaning of clause 7.1 held by the negotiating parties at the time the Agreement was drafted.

1. As to the entitlement to accumulate TOIL, the AIMPE submitted that the limitation of scheduled hours in clause 7.1 plainly applies to any scheduled hours of duty and does not limit its application to continuous periods. To import such a restriction on the application of the clause would not only be inconsistent with the plain meaning of the words of the clause but would be clearly inconsistent with a central purpose of Clause 7, which is to prevent fatigue, and this was said to be evident throughout the elements of the clause.

1. Similarly, the AIMPE contended that clause 7.2 contains no criterion of continuity for access to the entitlement of TOIL for working such ‘overtime’, which accumulates to become Banked Leave, and which may be paid out in cash under clause 18.3. In contrast to the formulation in clauses 7.1 and 7.2, the AIMPE said that the Agreements makes specific reference to continuous hours and unbroken duty in clauses 7.3, 7.4 and 7.5 to identify an entitlement subject to the continuity of duty. It was submitted that it is evident that the drafters of the Agreement were alert to the difference between the scheduling of hours of duty and the actual performance of a continuous duty and have referred pointedly to when an entitlement is subject to a period of continuous duty. Each of the elements of clause 7 must be interpreted accordingly and Engineers are, therefore, entitled to accumulate entitlements for all hours cumulatively exceeding 12 in any rostered 24-hour period.

1. With respect to Question 3, the AIMPE stated that a series of obligations are imposed on employees under clause 6.3 and are replicated elsewhere in the Agreement, which identify the periods upon which employees are ‘on duty’. The entitlement to recompense through the ‘work –wages bargain’, was said to arise not simply from activities that might traditionally be recognised as working, but from activities undertaken in a context such that the employee is providing service to the employer rather than freely conducting his or her private life. In its view, the obligations in clause 6.3 impose such disabilities and restrictions on the non-work activities of an employee that employees effectively remain under the Respondent’s constant instruction. Accordingly, the AIMPE contended that this establishes that, consistent with the wording of the Agreement, employees remain on duty throughout that rostered period, subject to being notified they are on a nominated break of 7 hours or more. The option provided to the Respondent by the Agreement of identifying that the employee may go on a nominated break reflects the distinction between periods of being under instruction and periods that are not. Therefore, it was contended that those hours must be duty hours for the purposes of clause 7.1.

1. In closing submissions in reply, the AIMPE said that references in the Respondent’s submissions to cases dealing with employees being ‘on call’ are of no assistance in the present case, where the 2016 Agreements do not make provision for employees being on call and the degree of control exercised by the Respondent over employees when they are rostered on a secondary tug, but not physically performing work, is significantly more extensive than circumstances considered in the cases.  According to the AIMPE, the Company’s contentions argue that the Commission should rewrite clauses 7.1 and 7.2 of Appendix 1, and fail to address the operation of clause 10.1 which requires crew to carry their phones at all times while rostered on unless instructed they are on a nominated break, and that this provision is a further example of control exercised by the Respondent over employees while they are on duty.  Whether the Company sets the shipping schedule or not, is not a matter that is relevant for the purposes of interpreting the terms of the Agreements.  Further, the Company could avoid liability of employees rostered to work on secondary tugs accumulating time off in lieu, by exercising its discretion to place employees on a nominated break when they have worked beyond 12 hours.  This would mean that such employees would not be required to remain on duty and could turn off their mobile telephone.

Respondent

1. The Respondent’s contention, underpinning its submissions, is that:

“a)Where the Agreements pursuant to clause 7 of Appendix 1 provide that scheduled ‘hours of work should ordinarily not exceed 12 hours’ [60], that is to be understood as ‘12 continuous hours’ of undertaking work/duty, and where the terms ‘work’ and ‘duty’ in that clause 7 are synonymous;

b)The entitlement of an employee pursuant to clause 7.2 of Appendix 1 to accumulate time off in lieu where they undertake work/duty ‘beyond 12 hours’ is again to be understood as ‘12 continuous hours’; and

c)In the case of Secondary Tugs for which crews are rostered for 24-hour periods 0700-0700, and aside from the specific arrangements for LNG Standby pursuant to clause 14 of Appendix 1, the calculation of ‘continuous hours’ of undertaking work/duty is:

i.From the actual ‘turn-to time’ of the employee going on-board the tug until the time of leaving the tug and going onshore after each attendance; and

1. Subclause 7.3 of the 2016 Agreements was in the 2012 and 2015 Agreements, in identical terms, including the reference to ‘work’ and ‘duty’ in the same provision and the requirement that employees be given a rest break of at least 10 hours where they were required to be on continuous duty for more than 14 hours.   However, that subclause was the first subclause in the clause which went on to deal with hours of duty and breaks from work.  There was no equivalent to clause 7.1 of the 2016 Agreements stating that ‘scheduled hours of duty should not exceed 12’. 

Negotiations for the 2016 Agreement

1. I do not accept that the evidence of negotiations for the 2016 Agreements or their predecessors, establishes a common assumption or intention about the provisions.  At best, the evidence establishes common inadvertence about longstanding provisions in relation to secondary shifts that would operate in circumstances where the Port became busier, after the 2016 Agreements were negotiated.  In this regard, the provisions of Schedule 1 in relation to breaks indicate that best endeavours will be made to provide breaks longer than the minimum periods stipulated in the Agreement.  It is probable that when the Port became busier, the ability of the Respondent to schedule breaks of greater than the minimum periods in the 2016 Agreements, was reduced.  Further, if the Unions were in intending to negotiate provisions preventing periods of duty/work exceeding 12 hours, they did not achieve this objective.

1. To the contrary, as can be seen from the consideration of the 2012 and 2015 Agreements that the 2016 Agreement makes clear that employees may work or be on duty for hours in excess of 12 up to a maximum of 16 hours and sets out provisions for rest breaks where hours in excess of 12 are worked.  Further, the 2016 Agreement introduces a right for employees to request a fatigue break in circumstances where in their own opinion they require such a break to be fit for duty.  Such a break, where requested, must be provided by the Company and no deduction of pay can be made.

Extrinsic material

1. The Seafarers Employment and Social Rights document tendered by Mr Yates is not relevant to the proper construction of the 2016 Agreement.  Mr Milne’s uncontested evidence is that it is a global policy applying to international voyages by seafarers and not domestic operations such as the Respondent’s Gladstone operations.  In any event, the rostering arrangements are not inconsistent with the document.  Further, there is no indication that it is incorporated into the 2016 Agreements.

Evidence of employees about the application of Appendix 1

1. I do not accept that the evidence given by employees about the way the rostering provisions are being applied, is relevant to the proper construction of those provisions.  This is not a case about whether the rostering arrangements are reasonable but rather about the proper construction of those provisions.  As previously stated, while I do not doubt that employee witnesses were truthful and are genuinely aggrieved in relation to rostering issues and that they have safety concerns given the nature of the work, the fact remains that the views of employees are based on an erroneous construction of the provisions of Appendix 1 of the 2016 Agreements.  In this regard, I do not accept that the Respondent is breaching or misapplying the provisions in Appendix 1.

1. Further, while it may be appropriate in some cases to avoid a construction of an agreement that places unreasonable or unsafe requirements on employees, this is not such a case.  Relevantly, the 2016 Agreement contains the following provisions that offset or mitigate any adverse impacts of the rostering arrangements:

• The numbers of crew who were employed at the time the 2016 Agreements were made to work the rosters, is specified in Appendix 1 and employees are entitled to take issue with the Respondent if those numbers drop below the level necessary to operate safely.

• In the 14 weeks employees are rostered on in a 26-week period, they work secondary shifts for six weeks and primary shifts for eight weeks, punctuated by 12 weeks when they are rostered off for blocks of 2 or 3 weeks.

• While employees may see themselves as being ‘captive’ for periods when they are required to be at the workplace undertaking towage, maintenance or other duties, the ability to leave the workplace while continuing to be paid for a full rostered shift, is a benefit to employees covered by the 2016 Agreements.

• While employees are not completely at liberty when they are required to be available, they have the benefit of being able to remain at home or another place of their choice in those periods rather than being required to sit on the tugboat or in a crib room or similar at the workplace.

• Employees rostered on Primary Tugs can only be required to undertake maintenance during 8 hours on day shifts between 0700 and 1300 hours, excluding weekends and public holidays, so that the maximum number of maintenance hours they can be required to perform in any week, is 40 out of the 96 hours for which they are paid.

• Employees rostered on Secondary Tugs are required to perform 8 hours of maintenance between 0700 and 1300 hours, excluding weekends and public holidays, at their own request in consultation with schedulers, so that the maximum number of maintenance hours in any week they can be requested to perform is 40 out of the 288 hours they are paid for, in weeks rostered on secondary shifts.

• Where employees work or are on duty for periods in excess of 12 hours, they are entitled to TOIL in addition to the hours they are paid for, can only be required to work more than 14 hours in unusual operational circumstances and cannot be required to work more than 16 hours in any circumstances.

• For employees on Primary Tugs, who are paid for the 12-hour span over which they are rostered, the accrual of TOIL for work over 12 hours is in addition to the 12 hours pay for the shift. 

• For employees on Secondary Tugs, who are rostered for duty over 24 hours, and paid for all rostered hours, the accrual of TOIL is in addition to the hours for which the employees have already been paid.  

• TOIL is required to be taken as banked leave when 8 hours have accumulated and by virtue of clause 25.3 only leave in excess of 25 days can be paid out.

• Where an employee is on continuous duty for more than 14 hours, the employee is entitled to a 10-hour rest break and rest breaks under clause 7.7 are structured to benefit employees on Secondary Tugs, so that where there are two breaks of between 7 and 8 hours, the third break is required to be no less than 12 hours.

• Appendix 1 contains detailed rules in relation to how and when employees will be contacted to maximise their rest periods.

• Employees are entitled to request a fatigue break without loss of pay if they believe they are not fit for duty due to fatigue or some other situation outside their control.

1. I also accept Mr Sedgwick’s uncontested evidence about the extent of employees working for more than 12 hours and that this is a relatively rare occurrence in the context of overall shipping and is mitigated by the matters I have identified above.

Conclusions in relation to construction of disputed terms

1. Firstly, in relation to the question of the circumstances (if any) the employees’ scheduled hours of duty can exceed 12 hours, I conclude as follows.  The provisions in clause 7 of Appendix operate by stating a general proposition at subclause 7.1, that the maximum number of ‘scheduled’ hours of duty or work should ordinarily be 12.  The effect of this provision is that when schedulers issue daily orders in accordance with clause 10, in advance of employees commencing work, those orders should be formulated so that the jobs they encompass, if undertaken in ordinary circumstances, will not require employees to be on duty for more than 12 hours.

1. By virtue of clause 7.2, an employee may work beyond 12 hours and up to 14 hours, to meet ‘operational requirements’.  There is nothing about that term that suggests that operational requirements should encompass something unusual or out of the ordinary, and I do not accept the submission that this provision is an exception, and that an exceptional or unusual occurrence is required before it operates.  To construe the provision in that manner would require reading additional limitations into it, where there are none.  Read in conjunction with clause 7.1, clause 7.2 provides that where scheduled work commences and operational requirements arise during the rostered shift which were not included or encompassed in the scheduled work, employees can work beyond 12 hours to meet those requirements.  Those operational requirements include additional shipping, which is a usual occurrence in the marine towage industry.

1. Clause 7.3 goes on to provide that employees may work in excess of 14 hours of continuous duty in unusual operational circumstances.  It is notable that the language of clause 7.3 does not prohibit employees from undertaking continuous duty in excess of 14 hours in contrast with the 16-hour limit in clause 7.4.  Subclause 7.3 envisages that employees will undertake continuous duty for periods exceeding 14 hours, in unusual operational circumstances.  As previously noted, there is nothing unusual about additional shipping in the marine towage industry and more would be required to constitute unusual operational circumstances.  However additional shipping could be the result of unusual operational circumstances.  The 16-hour limitation in clause 7.4 is absolute and cannot be exceeded.

1. Secondly, ‘work’ and ‘duty’ in clause 7 are synonymous terms and have the same effect.  In clause 7.1, the term ‘duty’ is used prospectively to encompass work scheduled in accordance with clause 10 of Appendix 1.  While ‘duty’ may also be distinguished from ‘work’ on the basis that the former concept includes being available to work while the latter signifies an employee being at the workplace undertaking operational duties, there is no basis in the present case to make such a distinction, given the arguments advanced by the parties.  Thirdly, regardless of whether the terms ‘work’ and ‘duty’ have a different meaning or are synonymous, it is clear that to count in the calculation of limits for the purposes of clauses 7.2, 7.3 and 7.4, work/duty must be continuous.  Clauses 7.2 requires that for the purposes of accruing TOIL, the employee must work for 12 hours and ‘remain on duty’ after the 12 hours of work to attract the entitlement to TOIL referred to in clause 7.2, with respect to the hours in excess of 12.  It is axiomatic that where ‘work’ and ‘duty’ are used in two related sentences, and in the context of subclause 7.2, that they are continuous. 

1. Subclause 7.3 specifically states that to attract a 10-hour work break in addition to the entitlement to TOIL, the employee must be on continuous duty for more than 14 hours.  That requirement appears immediately after a sentence that provides that scheduled hours of ‘work’ should not ordinarily exceed 12.  In the context where a longer rest break than the general provisions in clause 7.7 applies in these circumstances, and the terms are again used in the sequential sentences, clause 7.3 also requires that work and duty be continuous before its provisions operate.  Clause 7.3 uses the term ‘continuous duty’ in the same provision as the reference to scheduled hours of work, and it is implicit that work and duty for the purposes of that clause, are continuous.  It is also the case that ‘unusual operational circumstances’ referred to in clause 7.3 would generally arise while employees are at work.   There is no indication of an intention to distinguish ‘work’ and ‘duty’ on the basis that the former term covers time spent by employees on tugboats in the workplace while the latter covers time when the employee has left the workplace and is available.   Even if there is such a distinction, clauses 7.2 and 7.3 refer to both ‘work’ and ‘duty’ and make clear that employees cannot be said to remain on duty for the purpose of clause 7.2 or be on continuous duty, unless they are, or have been at work.

1. This is also indicated by clause 10 which makes clear that upon the completion of ‘duty’, for the purposes of ascertaining whether further towage is required, contact is required to be made with the scheduler by the tug master, ‘at all times whilst all crew members are still on board’.  To be on board when duty is completed, employees must have turned-to and it follows that calculating continuous duty/work for the purposes of limitations, TOIL and entitlement to breaks, that the starting point is when employees turn-to on tugboats and the ceasing point is when they leave the tugboats, subject to the possible objection I set out below.

1. Crews rostered on Primary Tugs, are required to turn-to on every shift, for a changeover.  It is consistent that work/duty for these employees commences when they turn to.  Because crews rostered on Primary tugs are rostered for a 12-hour span, and paid for all hours of that span, it follows that they are taken to be on duty for that period, notwithstanding that they may have left the tugboat and the workplace.   It is also possible for employees on Primary Tugs to leave the workplace and return, within the span of their 12 rostered hours, particularly Primary Tugs on night shift or on days when maintenance is not required. Where crews rostered on Primary Tugs work or remain on duty for more than 12 hours, they accrue TOIL for hours in excess of 12 and are entitled to a 10-hour break before their next period of work/duty if they are on continuous duty for more than 14 hours.  Crews on Primary Tugs are not otherwise paid for hours in excess of the 12 hours for which they are rostered.  However, due to the nature of their role and that of crews on Secondary Tugs, it is unlikely that the scenario of crews on Primary Tugs working or remaining on duty for periods in excess of 12 or 14 hours would arise.  

1. Unlike the provisions of clause 6 in relation to crews on Primary Tugs where crews are rostered to cover a 12-hour span, crews on Secondary Tugs are rostered and paid for a full 24-hour period, regardless of whether they attend the workplace or turn-to in that period.  Unlike crews rostered on Primary Tugs, crews on Secondary Tugs are not required to turn-to at specified times.  Where crews rostered on Secondary Tugs work or remain on duty for periods in excess of 12 hours, the entitlement to accrue TOIL is in addition to the time they are already paid for.  There is no basis for crews on Secondary Tugs to be paid for time they are required to be available and to accrue TOIL in addition, for periods when they are not in the workplace undertaking towage or maintenance duties. 

1. Crews on Secondary Tugs are not working split shifts, in the sense that split shifts are ordinarily understood to operate.  The concept of a split shift ordinarily involves employees reporting for work during a single span over which hours of work are rostered and working part of their total rostered hours and then leaving the workplace for a period which has a duration that is longer than a standard meal or rest break, during which time they are not paid, and then being required to return to work to complete their rostered hours.  The effect is that employees working split shifts are not paid for the time between the two periods of work and are required to travel to and from work twice on the same day.  This type of arrangement is reflected in clause 19.4 of the Marine Towage Award, which deals with employees being required to resume duty after ceasing duty or requires a minimum payment for each resumption and for the entire period between the commencement of the first resumption and the termination of the last resumption, where these occur between 1800 hours on one day and 0500 on the next day.  The 2016 Agreements provide for employees to be rostered on Secondary Tugs from 0700 to 0700 and where employees are paid for the full 24 hours, the effect is substantially the same as an employee under the Award, who resumes work on two or more occasions.

1. Fourthly, a nominated rest break in accordance with clause 7.7, breaks the continuity of duty and restarts the count for the purposes of calculating the entitlements of employees to accrue TOIL and breaks from work.   The plain meaning of clause 7.7 is that the nominated rest breaks have the effect of breaking the continuity of duty.  If cumulative rather than continuous duty counted towards the limitations in clause 7, there would be no need for the first sentence of clause 7.7.  Further, if the intention of clause 7.7 was to provide employees with the nominated breaks specified in the clause and to indicate that those breaks do not count as duty, the provision would be expressed to simply require nominated breaks to be taken and state that the time spent on such breaks is not counted in the calculation of hours limitations.  Finally, the fact that the length of the breaks stipulated in clause 7.7 is increased to 12 hours after two consecutive breaks of between 7 and 8 hours, indicates that their purpose is to break continuous duty, rather than to simply excise break periods from duty.  Further, it is clear that a nominated rest break is a break that the employee is informed about prior to the break commencing.  It is only in those circumstances that an employee is permitted switch off his or her mobile telephone.

1. Clause 7.7 can be contrasted with clause 7.8, which states that a meal break does not constitute ‘a break when assessing unbroken duty’.  This provision makes clear that clause 7.7 is concerned with breaking continuous duty, rather than simply being a mechanism to provide breaks, and to stipulate that the break is itself not considered to be duty.   Finally, clause 7.9 provides options for the Company to ensure continuity of service, when a ‘required rest break’ will impinge on towage operations.  Clause 7.7 does not require rest pauses to be given.  This can be contrasted with clause 7.8 which states that employees are entitled to a meal break in particular circumstances.  Clause 7.7 is not simply directed to rest breaks being provided, but is also a mechanism by which the Company can nominate a rest break that breaks continuity of duty so that it can meet its obligations in relation to hours limitations in clause 7.    

1. The entitlement to meal breaks in clause 7.8 arises on completion of 5 hours of ‘duty’.  If duty was confined to periods when the employee was available but not on a tugboat undertaking towage operations or otherwise at the workplace, it would not be necessary to provide a meal break to employees after 5 hours of duty, given they would be able to partake of a meal at a time that suited them while remaining available for towage.   Clause 7.10 also provides that it is the responsibility of every employee to be fit for the commencement of ‘duty’ – that is to be properly rested for the commencement of his or her rostered shift.  This is a further indication that ‘duty’ and ‘work’ mean the same thing.  While not determinative, I also note that clause 7 is headed ‘Hours of Duty and Breaks from Work’ suggesting that the terms ‘duty’ and ‘work’ have the same meaning. 

1. It is arguable that where crews rostered on Secondary Tugs are required to turn to and perform towage duties and then leave the workplace, without being informed they are on a nominated break, and are therefore required to be available for a further period which is continuous with the period they were at work, they are undertaking continuous duty for the purposes of limitations, TOIL and the additional 10-hour break.  However, the questions for arbitration do not require this point to be determined and deal only with periods during which employees rostered on Secondary Tugs are available and are not in the workplace.  

1. For these reasons, I issued a Decision[96] answering the questions for arbitration 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 72 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.” 

VICE PRESIDENT

Appearances:

Mr L Tiley of Hall Payne Layers, 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:
November 15, 16.
December 22.

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, 9 December 2022.

ANNEXURE A

STATEMENT OF AGREED FACTS

“Background

1. The Company is the Australian subsidiary of a global marine towage company. The Company has operations at the Port of Gladstone (Port), being the operations to which these disputes relate.

1. The Port is owned by the Gladstone Ports Corporation (GPC).

1. The Company has an exclusive licence from GPC to provide towage services for the Port. The current licence took effect from 1 January 2019, replacing a previous licence which had been in place from 2011.

1. The exclusive licence requires the Company to guarantee the availability of 10 tugs at no more than 30 minutes notice on a continuous 24 hour per day, 365 day per year basis (Operational Objective).

1. The Company currently utilises 28 rostered crews to meet the Operational Objective, with each crew consisting of 3 employees. Each crew consists of one employee in each of the classifications of:

   (a) Master;

   (b) Engineer; and

   (c) General Purpose Hand (GPH).

1. The terms and conditions of employment of the Masters, Engineers and GPHs are regulated by three separate enterprise agreements made pursuant to the Fair Work Act 2009 (FW Act), applying respectively to each of the three classifications.

1. The industrial instruments for Masters and Engineers, and under which these proceedings arise, are:

   (a) the Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2016 for Masters (Masters Agreement); and

   (b) the Smit Lamnalco Towage (Australia) Pty Ltd and AIMPE Gladstone Enterprise Agreement 2016 for Engineers (Engineers Agreement),

   (together, the Agreements).

1. The Agreements relevantly:

(a) replaced the Smit Marine Australia Pty Ltd and AIMPE Enterprise Agreement 2015 (AG2016/473) and the Smit Marine Australia Pty Ltd and AMOU Enterprise Agreement 2015 (AG2016/472) (2015 Agreements);

(b) which in turn had replaced the Smit Marine Australia Pty Ltd and AIMPE Enterprise Agreement 2012 (AG2012/12148) and the Smit Marine Australia Pty Ltd and AMOU Enterprise Agreement 2012 (AG2012/12090) (2012 Agreements).

1. A separate enterprise agreement applies to GPHs.

1. The Agreements are to be “read in conjunction with the Marine Towage Award 2010, as varied, but in the event of any inconsistency between [the Agreements] and the Award, [the Agreements] will prevail” (clause 2.4).

1. The Operational Objective is recognised in the Agreements.[97]

1. The nominal expiry date of the Agreements was 31 December 2020. To date bargaining for replacement enterprise agreements has been unsuccessful.

Jurisdiction

1. The proceedings arise under the Dispute Resolution provisions at clause 8 of the Agreements, and pursuant to s. 739 of the FW Act.

1. The proceedings have progressed to clause 8.2.2 of the Agreements which allows the Commission to arbitrate the disputes. There is a commonality in the disputes which enables them to be heard together by the Commission.

1. Resolution of the proceedings requires the interpretation of the Agreements. The approach to interpretation of enterprise agreements, including consistent with Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [114], (2017) 268 IR 285 at 310, is not in dispute.

The disputes

1. The dispute includes issues of scheduling of hours, what constitutes “work time” for the purposes of the entitlement to a rest break pursuant to clause 7 of Appendix 1 of the Agreements, and time-in-lieu pursuant to clause 7.2 of Appendix 1.

1. Under the Agreements, at clause 5 of Appendix 1, four tugs are classified as Primary Tugs and six tugs are classified as Secondary Tugs.

1. The Company’s use of Primary and Secondary Tugs at Gladstone goes back to at least the 2012 Agreements, although the number of tugs has changed.

1. The current roster arrangements at the Port:

   (a) consist of employees rotating over a 28-week roster cycle through allocation to Primary Tugs and Secondary Tugs; and

   (b) over the 28-week period a rostered crew will be rostered on for 14 weeks and have 14 weeks off. During the 14 weeks rostered on, employees spend six weeks rostered on Secondary Tugs.

1. Clause 6.3 of Appendix 1 of the Agreements provide that:

   (a) while rostered on Primary Tugs, and aside from when performing planned maintenance on Primary Day Tugs or towage duties, employees are permitted to leave the vessel but must remain available to return to duty on 30 minutes’ notice;

   (b) while rostered on Secondary Tugs, and aside from when on nominated rest breaks, employees are required to remain available to ‘turn-to’ for duty on 30 minutes’ notice.

1. The Port’s shipping schedule is set by the Port’s Vessel Traffic Services.

1. Based on the shipping schedule, the Company issues the daily work orders to employees at 1630 the day prior by SMS (clause 10 of Appendix 1).

1. The shipping schedule can change for a range of reasons.

1. In the above context, it is not in dispute that employees may start and stop towage duties on a number of occasions during a 24-hour period.

25 May 2022”

[1] Agreed Statement of Facts filed by the parties on 25 May 2022.

[2] B2020/861 Application by Smit Lamnalco Towage (Australia) Pty Ltd.

[3] Transcript PN67 – PN71.

[4] AMOU’s amended opening submissions dated 29 September 2022, at Annexure A.

[5] AMOU Closing Submissions 16 November 2022.

[6] Transcript PN74.

[7] AIMPE Closing Submissions dated 16 November 2022, at [15].

[8] Company’s outline of submissions dated 21 March 2022 at [5].

[9] Ibid.

[10] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25

[11] In August 2022, the Respondent sought for two disputes – C2020/9259 and C2020/9260 to be joined to this proceeding. 

[12] Exhibit AMOU1 – John Sharp Witness Statement; Exhibit AMOU2 – John Sharp Witness Statement in Reply.

[13] Exhibit AMOU3 – Mark Robertson Witness Statement; Exhibit AMOU4 – Mark Robertson Witness Statement in Reply.

[14] Exhibit AMOU5 – Michael Farrar Witness Statement in Reply.

[15] Exhibit AIMPE1 – Stuart Snell Witness Statement.

[16] Exhibit AIMPE2 – Laurence Purcell Witness Statement.

[17] Exhibit AIMPE3 – Graham Coyne Witness Statement; Exhibit AIMPE4 – Graham Coyne Witness Statement in Reply.

[18] Exhibit AIMPE5 – Wayne Gaynes Witness Statement; Exhibit AIMPE6 – Wayne Gaynes Witness Statement in Reply.

[19] Exhibit AIMPE7 – Greg Yates Witness Statement; Exhibit AIMPE8 – Greg Yates Witness Statement in Reply.

[20] Exhibit AIMPE9 – Brett Langridge Witness Statement; Exhibit 10 – Brett Langridge Witness Statement in Reply.

[21] Exhibits SLTA1 – SLTA8.

[22] Exhibit SLTA9 – Peter Sedgewick Witness Statement.

[23] Exhibit SLTA10 – Evan Milne Witness Statement.

[24] [2017] FWCFB 3005 at [114].

[25] [2022] FWCFB [7].

[26] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]

[27] Op. cit. at [29].

[28] AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital [2021] FWCFB 6044

[29] [2004] HCA 52, 219 CLR 165.

[30] Ibid at [40].

[31] [2017] FWCFB 3005.

[32] Ibid at [114].

[33] [2017] FWCFB 4487.

[34] [2014] NSWCA 184 at [71] – [85].

[35] Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.

[36] Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].

[37] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

[38] Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing)

[39] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].

[40] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].

[41] [2006] FCA 11.

[42] Ibid at [44].

[43] Ibid at [46]

[44] [2006] FCA 616.

[45] Exhibit AIMPE 7 Annexure 2.

[46] Transcript PN243 – 248 and 286.

[47] Transcript PN293 – 294.

[48] Transcript PN327 – 328.

[49] Transcript PN440 – 441.

[50] Transcript PN468 – 470.

[51] Transcript PN483 – 503.

[52] Transcript PN505 – 508.

[53] Transcript PN531 – 538.

[54] [2022] FCA 250.

[55] Clause 10.1 of Appendix 1.

[56] Paragraph 1 of Clause 6.3: Secondary Tug 1-6.

[57] Clause 12.3; Appendix 1 at 2.1 (Objectives), 3.4 (Responsibilities); 6.3 (Crew Utilisation Primary tugs – day; Primary Tug – Night; Secondary Tug 1-6); 10.1 (Orders).

[58] See, Macquarie Dictionary (6th ed).

[59] The Seafarers’ Training Certification and Watchkeeping Code adopted under the International Convention on Standards of Training Certification and Watchkeeping for Seafarers, which entered into force for Australia on 1 February 1997.

[60] Agreements clauses 7.1 and 7.3 of Appendix 1.

[61] Warramunda Village Inc v Pryde [2002] FCA 250; Suffolk County Council v Secretary of State for the Environment [1984] ICR 882 Jay Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691.

[62] Appendix 2 clause 2.

[63] Cl. 2.4 of Agreements.

[64] Cl. 2.4 of Agreements.

[65] Cl. 12 of the Agreements and Appendix 1 cl. 2.1.

[66] Cll. 5.3, 5.4, 6.3, 10.2.3, 10.2.4 of Appendix 1; T 15/11/2022 PN 368 (Yates).

[67] Cll. 10.2.1 (a), 10.2.2(b) and 10.2.3(b) of Appendix 1. Note that cl. 14.1 LNG Standby Towage uses different language of ascertaining work/duty periods of “Time from crew on-board to crew ashore,” but the meaning/effect is equivalent.

[68] Cl. 15 of the Agreements.

[69] Transcript 15/11/2022 PN244 (Yates); PN250 (Yates); PN285 (Yates).

[70] Transcript 15/11/2022 PN245 (Yates); PN286 (Yates).

[71] Transcript 15/11/2022 PN246 (Yates); PN251 (Yates); PN287 (Yates).

[72] Cl. 17.1 of Agreements.

[73] Cl. 17.2 of Agreements.

[74] T 15/11/2022 PN294 (Yates).

[75] Respondent’s Bundle of enterprise agreements – Tab 1 p 6.

[76] Agreed Statement of Facts [18].

[77] Respondent’s Bundle of enterprise agreements – Tab 1 pp 3-4.

[78] Respondent’s Bundle of enterprise agreements – Tab 1 p 4.

[79] Respondent’s Bundle of enterprise agreements – Tab 1 pp 22-25. Note: employees have access to the live standby view of vessel movements which allows for assessment of likely calls for work - see SLTA 6 and cl 5.2 of Appendix 1, being the Order of Call for Secondary Tugs.

[80] Respondent’s Bundle of enterprise agreements – Tab 1 p 16.

[81] Respondent’s Bundle of enterprise agreements – Tab 1 pp 12-15.

[82] Respondent’s Bundle of enterprise agreements – Tab 1 pp 18-19.

[83] Respondent’s Bundle of enterprise agreements – Tab 1 pp 25-27.

[84] 2016 Agreements at Appendix 1 cl 4.2.

[85] Appendix 1 cl. 7.7.

[86] Appendix 1 cl. 7.10.

[87] Appendix 1 cl. 14.

[88] Transcript 15/11/22 PN442.

[89] Berri op. cit. Principle 2.

[90] Transcript 15/11/22 PN 418 (Yates).

[91] [2012] FCA 1010.

[92] [2018] FWC 4667.

[93] Shorter Oxford English Dictionary 6^th Edition, Oxford University Press 2007.

[94] PN244, 250 and 285.

[95] PN245, 286.

[96] [2023] FWC 1258.

[97] Appendix 1, cl. 2; see also the Agreements, cl. 6, Purpose of the Agreement and cl. 12.3 Hours of Work and Related Matters.

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