Construction, Forestry and Maritime Employees Union v Australian Offshore Solutions Pty Ltd T/A AOS
[2024] FWC 1048
•24 JUNE 2024
| [2024] FWC 1048 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry and Maritime Employees Union
v
Australian Offshore Solutions Pty Ltd T/A AOS
(C2024/497)
| DEPUTY PRESIDENT BINET | PERTH, 24 JUNE 2024 |
Dispute concerning Australian Offshore Solutions (AOS) Pty Ltd and The Maritime Union of Australia Propelled Dredging Greenfields Agreement 2023
On 30 January 2024 the Construction, Forestry and Maritime Employees Union (CFMEU) made an application (Application) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) to the Fair Work Commission (FWC). The Application sought that the FWC deal with a dispute between the CFMEU and Australian Offshore Solutions Pty Ltd T/A AOS (AOS) in accordance with the dispute resolution procedure contained in Clause 8 of the Australian Offshore Solutions (AOS) Pty Ltd and the Maritime Union of Australia Propelled Dredging Greenfields Agreement 2023 (Dredging Agreement).
The dispute concerns whether employees engaged by AOS to work on the vessel the Boka Tiamat (Vessel) during the period of 13 December 2023 to 12 January 2023 (Relevant Period) were covered by the Dredging Agreement or the AOS and MUA Offshore Oil and Gas Enterprise Agreement 2023 (Offshore Agreement).
On 8 February 2024 the parties participated in a conciliation, but the issues in dispute could not be resolved.
Directions for the filing of materials in advance of a hearing were issued to the parties on 29 February 2024 and amended on 12 March 2024 and 26 March 2024 (Directions). The Application was listed for hearing in person in Perth on 23 April 2024 (Hearing).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
AOS sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to AOS to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing Ms Sumayyah Sayed a solicitor employed by the CFMEU appeared on behalf of the CFMEU and Mr James McLean of Counsel (Mr McLean) appeared on behalf of AOS.
Evidence
In advance of the Hearing the CFMEU filed witness statements of the following witnesses setting out their evidence in chief:
a.Mr Michael Hart (Mr Hart)[2] – Mr Hart has been employed by AOS for four years in the classification Integrated Rating. On 27 December 2023 he joined the Vessel and remained on board until at least 4 January 2024.
b.Mr Timothy Schiffermuller (Mr Schiffermuller)[3] – Mr Schiffermuller is employed by AOS in the classification Integrated Rating. On 15 December 2023 he joined the Vessel and remained on Board until at least 26 December 2023.
c.Mr George Gakis (Mr Gakis)[4] – Mr Gakis is the Assistant State Secretary for the WA Branch of the Maritime Union of Australia. He is the CFMEU official with responsibility for CFMEU members employed by AOS on the Vessel.
AOS chose to cross examine only Mr Gakis.
In accordance with the Directions AOS filed a witness statement of Mr Daniel John Sweetman (Mr Sweetman) setting out his evidence in chief.[5] Mr Sweetman is the Managing Director of AOS. Mr Sweetman was cross examined at the Hearing by Ms Sayed.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties which was admitted at the Hearing and marked as an exhibit (DCB).
Written closing submissions were filed by the CFMEU on 15 May 2024 and by AOS on 22 May 2024. The CFMEU filed written closing submissions in reply on 5 June 2024.
In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
AOS is a labour hire company specialising in the supply of marine personnel and offshore personnel to the oil and gas industry.[6]
As the personnel AOS employs are deployed across a number of different types of vessels there are a number of different Awards which cover AOS operations, including relevantly the Dredging Industry Award 2020 (Dredging Award) and the Maritime Offshore Oil and Gas Award 2020 (Maritime Award).[7]
AOS also has a number of enterprise agreements that apply to its employees, including:[8]
a.the Offshore Agreement; and
b.the Dredging Agreement.
Both Agreements were negotiated and approved in 2003. The Dredging Agreement was approved on 8 May 2023 and was signed by Mr Sweetman. The Offshore Agreement was approved on 29 September 2023 and was signed by Mr Sweetman.
Clause 5 of the Dredging Agreement describes the scope of the Dredging Agreement as follows:
“5. SCOPE OF THE AGREEMENT
5.1 This Agreement covers the Employer, the Union (subject to s 183 of the FW Act) and Employees who are engaged in the classifications in this Agreement to work on vessels crewed (manned) by the Employer in or in connection with:
(a) Dredging in Australia, including travelling to or from a dumping area;
(b) while travelling from port to port.5.2 The parties to this Agreement acknowledge and agree that any Contractors and/or Sub-Contractors engaged and used by the Employer to perform any Dredging Work shall provide the same terms and conditions as set out herein to those of its employees who perform work within the classifications of this Agreement for the duration of their work as a Contractor and/or Subcontractor of the Employer. The MUA undertakes that it will not, as a result of this provision, approach or seek to approach any Contractor or Sub-Contractor of the Employer in an attempt to gain any further
benefit, over and above the terms and conditions of employment set out in this Agreement, from the Employer's Contractors or Sub-Contractors throughout the life of this Agreement.5.3 When a contractor-provided Support Vessel is working in or in connection with dredging work it will be covered by the terms of this Agreement.
5.4 The Employer will ensure that Vessels entering and Exiting Australia, will be crewed by Australian seafarers.
5.5 This Agreement does not cover rock-dumping vessels.”
Clause 4 of the Offshore Agreement relevantly describes the scope of the Offshore Agreement as follows expressly excluding work in the ‘Dredging Industry’:
“4. COVERAGE
4.1. This Agreement covers:
a) The Employer;
b) The Union; and
c) The Employees employed by the Employer to work in any of the classifications contained in this Agreement, whether or not they are at a particular point in time performing dutieson rostered work time on a Vessel.…
4.4. This Agreement does not cover Employees employed by the Employer for the principal purpose of carrying out work:
a) on board a Floating Production Storage and Offloading facility, other than a Transit Voyage;
b) in the Dredging Industry;
…”
The terms ‘Dredging in Australia’ and ‘Dredging Industry’ are not defined in either Agreement. Mr Gakis says that the intention of the parties was that the Dredging Agreement would cover vessels that performed dredging work even if the vessels were not operating in the dredging industry and that this explains why the Dredging Agreement uses the term “Dredging in Australia” and does not use the term ‘Dredging Industry’ used in relation to the scope of the Offshore Agreement. Mr Sweetman denies there were any discussion about the term ‘Dredging Industry’ being purposely not included for this reason.[9]
AOS has been engaged by Boskalis Australia Pty Ltd (Boskalis) to provide labour hire in connection with the Scarborough Energy Project (Project). The Project involves the development and subsequent operation of an offshore gas field off the coast of north-Western Australia. The Project is a joint venture between Woodside Energy Pty Ltd (Woodside) and BHP Petroleum (Australia) Pty Ltd (BHP). The Project is located approximately 380km off the coast of northern Western Australia.[10]
The Project will ultimately utilise an export trunk line (i.e. a pipeline) to transport gas from offshore gas wells to an LNG plant on the Burrup Peninsula. The Project is presently in the construction phase with over 50% of the work completed.[11]
Before the pipeline can be laid, various preparatory works need to be undertaken, principally in the form of trench excavation, gradient correction, the construction of underwater berms (a form of underwater bridge), the installation of supports and the preparation of the shoreline where the pipeline will run ashore (Preparatory Work).[12]
Woodside engaged Boskalis to deliver the Preparatory Work in around 2019. Boskalis perform work in the dredging industry.[13] The completion of the Preparatory Work is a multi-year undertaking and will occur in five stages.[14]
Boskalis has utilised a number of different vessels in connection with each stage of the Preparatory Work depending on the particular requirements of that stage. The vessels utilised by Boskalis have ranged from rock laying vessels, to dredging vessels, to construction support vessels.[15]
The stage of the Preparatory Work during which this dispute occurred is Stage 4. The fourth stage involves work on the continental slope crossing. The continental slope is a region of steeply sloping seafloor between the continental shelf and the deep ocean in which the gas wells are located (Continental Slope Work).[16]
The Stage 4 works were undertaken in waters ranging in depth from between 600 meters and 1,000 meters between 13 December 2023 and 12 January 2024 and entailed, principally:[17]
a.surveying of the seafloor;
b.deploying acoustic positioning systems to enable accurate positioning of the pipeline;
c.excavation activities to ensure the gradient of the continental slope was sufficiently moderated to permit the laying of pipeline; and
d.the placement of concrete “mattresses” to support the pipeline.
The vessels Boskalis deployed to perform the Stage 4 works include the Boka Tiamat. The Boka Tiamat is a specialist construction support vessel. Its principal equipment consists of a deck crane and a ROV (remote operated vehicle) that can be used to undertake survey and construction activities underwater. It does not have any fixed dredging equipment.[18]
To assist with the excavation activities component of the Stage 4 works, Boskalis also contracted Scanmudring to design, manufacture, and operate a specialist deep sea excavation tool (Scanmudring Grab). This deep sea excavation tool was added to the Boka Tiamat as a supplementary fixture for the period of the Stage 4 works.[19]
Throughout its performance of the Preparatory Work, Boskalis has from time-to-time contracted AOS to provide personnel to crew certain vessels (including both dredging vessels and other types of vessels).[20]
When Boskalis deployed the Boka Tiamat to perform the Stage 4 works, Boskalis contracted AOS to provide maritime crew to operate the Vessel (Relevant Work). AOS supplied approximately 50 employees to the Boka Tiamat in two rotations (25 personnel on board at each time) (Affected Employees). The personnel provided by AOS were responsible for the maritime operations of the Boka Tiamat, for example in the capacity of Stewards, Cooks and Integrated Ratings.[21]
On or about 5 October 2022, Mr Gakis met with Mr Heinz Bansagi (Mr Bansagi) from Boskalis and Mr Sweetman to discuss the Continental Slope Work. The purpose of the meeting was to endeavour to resolve any industrial issues before the commencement of the work.[22]
Mr Gakis says that the scope of the Relevant Work was described to him as dredging work, namely, that a seabed was being dug up and moved but that the dredging was being performed at a different depth and with different equipment than had occurred in the past. While Mr Sweetman recalls Mr Gakis expressing the view that the Relevant Work involved dredging work, Mr Sweetman says that both he and Mr Bansagi were of the view that the Relevant Work did not involve dredging work.[23]
The briefing documentation for the Project provided to Mr Gakis lists the vessels used to complete the work including the Vessel. The briefing documentation describes the Vessel as:[24]
“CSV Boka Tiamat with specially designed dredging tool”.
The equipment sheet in the briefing documentation describes the Vessel variously as a “Multipurpose DP2 Offshore Construction Vessel” and as a “Offshore Service Vessel”.[25]
From 15 December 2023 until 4 January 2024, the Vessel undertook preparations for, or excavation work at, the continental slope.
Both Mr Hart and Mr Schiffermuller say that when they joined the Vessel, they observed that the Vessel was equipped with a Scanmudring Grab. Both gentlemen also report that they were required to undertake an induction upon joining the Vessel. Slides from the induction were produced in evidence in these proceedings. The slides, when describing the scope of work to be performed by the Vessel, note that:[26]
a.the Vessel was equipped with the Scanmudring Grab to ensure “…more accurate dredging”; and
b.the Scanmudring Grab had a “…potentially tilting function to dredge slopes more accurately and avoid destabilizing slope”.
The Vessel Daily Progress Reports record that:[27]
a.From 15 December 2023 to 19 December 2023 the Vessel was preparing the seabed for excavation by surveying the excavation area and installing beacons.
b.On 20 December 2023, the Vessel commenced excavation works and by the end of that day, the vessel records from the same day state that: “… approximately 38% of first excavation layer dredged.”
c.On 21 December 2023, the Vessel “… continue[d] excavation and survey works” and by the end of the day “… approximately 60% of first excavation layer dredged.”
d.On 22 December 2023, the Vessel conducted further excavation works and by the end of the day the records report 28% overall completion of the continental slope excavation.
e.On 23 December 2023, the Vessel conducted further excavation works and by the end of the day the records report 31% overall completion of the continental slope excavation.
f.On 24 December 2023, the Vessel performed work by repositioning and calibrating beacons. This was in connection with the planned activity for the next 24 hours, namely excavation works on the continental slope.
g.On 25 December 2023, the Vessel conducted further excavation works and by the end of the day the records report 33% overall completion of the continental slope excavation.
h.On 26 December 2023, the Vessel conducted further excavation works and by the end of the day the records report 43% overall completion of the continental slope excavation.
On 27 December 2023, the Vessel conducted further excavation works and by the end of the day the records report 48% overall completion of the excavation.
j.On 28 December 2023, the Vessel conducted further excavation works and by the end of the day the records report 75% overall completion of the excavation.
k.On 29 December 2023, the Vessel conducted further excavation works and by the end of the day the records report 89% overall completion of the excavation.
l.On 30 December 2023, the Vessel conducted further excavation works and by the end of the day the records record 94% overall completion of the excavation.
m.On 31 December 2023, the Vessel conducted further excavation works and by the end of the day the records report 95% overall completion of the excavation.
n.On 1 January 2024, the Vessel conducted further excavation works and by the end of the day the records report 96% overall completion of the excavation.
o.On 2 January 2024, the Vessel conducted excavation works and by the end of the day the records report 99% overall completion of the excavation.
p.On 3 January 2024, the Vessel conducted survey works on the continental slope in order to finalise the excavation work.
q.On 4 January 2024, the Vessel conducted further excavation works and by the end of the day the records report 100% overall completion of the excavation.
The public descriptions of the work issued by Boskalis explain that the work performed involved excavation of the seabed and that the work was unusual before the depth at which it was performed:[28]
“헗헲헲헽 혀헲헮 헲혅헰헮혃헮혁헶헼헻 헮혁 헮 헿헲헰헼헿헱 헱헲헽혁헵 헼헳 ퟲퟬퟬ 헺헲혁헲헿혀
Around 200 kilometers off the coast of Dampier in northwest Australia, Boskalis safely completed a unique operation. At a record depth of 600 meters, our BOKA Tiamat undertook excavation works at the continental slope: the steep zone where the seabed transitions from the continental shelf to thedeep sea. The BOKA Tiamat was equipped with a specially developed grab for this purpose. Supported by a Remotely Operated Vehicle (ROV), part of the steep slope was flattened to enable the future installation of a pipeline.
Never before had Boskalis executed excavation work at such depths. The BOKA Tiamat had just set this ‘record’ when she took on her next deep-sea assignment: installing ten 17-ton concrete mattresses at a depth of 1,000 meters supported by an ROV. These mattresses serve as a steppingstone for the future pipeline, allowing it to safely cross the existing infrastructure on the seabed.
With this deep sea excavation and installation operation, Boskalis adds another unique set of skills toits long list of impressive capabilities.”
The Affected Employees were not involved in the operation of the ROV (which was undertaken by employees of Boskalis), or the operation of the deep sea excavation tool (which was undertaken by employees of Scanmudring). Boskalis did not require or request that ASO provide employees with dredging experience or capability.[29]
It is relevant to note that classifications covered by both the Offshore and Dredging Agreement are primarily catering classifications as opposed to classifications that would typically operate dredging equipment.
It is not disputed that the CFMEU complied with the provisions of the dispute resolution procedure found at clause 8 of the Dredging Agreement before filing the Application.
Consideration
The power of the FWC to deal with disputes is set out in section 595 of the FW Act. Section 595 provides that the FWC may only deal with a dispute if it is expressly authorised to do so under, or in accordance with, a provision of the FW Act.
The Application was made pursuant to section 739 of the FW Act.
Section 739 of the FW Act allows the FWC to deal with a dispute about an agreement if the agreement includes a term containing a dispute resolution procedure.
The Dredging Agreement was approved on 8 May 2023.[30] The nominal expiry date of the Dredging Agreement is 30 April 2027.
The Dredging Agreement contains a dispute resolution procedure of the nature contemplated by section 739 at clause 8. Clause 8 provides as follows:
“8. SETTLEMENT OF DISPUTES PROCEDURE
8.1 When an industrial dispute arises, about a matter arising under this Agreement, the NES or any other matter pertaining to the employment relationship, this clause sets out the procedure to resolve the dispute.
Step 1:
Where a matter arises when the Employee(s) are on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and either the senior AOS employee on board or the Master.Where a matter arises when the Employee(s) are not on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and the Employer's nominated representative.
If the matter remains unresolved:
Step 2:
The matter will be referred for discussion between the Employee, the Employee's Union delegate or other nominated representative and the Master and/or the Employer.
If the matter remains unresolved:Step 3:
The matter will be referred for discussion between the appropriate Senior Union Official or other nominated representative and the Employer's Human Resources or Industrial Relations Manager.
If the matter remains unresolved or if Steps 1-3 are not resolved within 7 days of the initiation of Step 1:
Step 4:
In the event that the preceding steps have failed to resolve the matter and/or dispute, any person bound/covered by this Agreement or nominated representative may refer the dispute to the FWC for conciliation and/or arbitration pursuant to Section 739 and Section 595 of the Fair Work Act.
8.2 Where the matter remains unresolved, the FWC may deal with the dispute in two stages:
(a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then:
(i) Arbitrate the dispute; and
(ii) Make a determination that is binding on both of the parties.
8.3 While the parties to the dispute are trying to resolve the dispute using the procedures in this clause:
(a) An Employee must continue to perform his or her work as he or she would normally, unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(b) An Employee must comply with a direction given by the Employer to perform other
available work at the same workplace, or at another workplace, unless:
(i)The work is not safe; or
(ii)Applicable occupational health and safety legislation would not permit the work performed.
8.4 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this clause but note that a decision of a single member of the FWC can be appealed to a Full Bench
of the FWC.8.5 An Employee who is party to the dispute or the Employer may appoint another person, organisation or association to accompany and/or represent them for the purposes of the procedures in this clause.”
The FWC may deal with a dispute only on application by a party to the dispute.[31]
The Dredging Agreement covers employees of AOS employed to work on or in connection with a ‘Dredging Project’ on a casual basis (Employees).[32]
The Employees are, or are eligible to be, members of the Maritime Union of Australia Division of the CFMEU.[33]
The CFMEU is named as a party to the Agreement and is covered by the Agreement.[34]
There is no dispute, and I am satisfied, that the issues in dispute between the parties fall within the scope of clause 8 of the Agreement.
There is no dispute, and I am satisfied that the CFMEU has complied with the procedural steps contained in clause 10 of the Agreement.
I am satisfied that the CFMEU has standing to make the Application and that I have the jurisdiction to determine the dispute.
In dealing with the dispute the FWC cannot exercise powers limited by the term.[35] If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. The FWC must not make a decision that is inconsistent with the FW Act or the Agreement.[36]
When arbitrating a dispute under the dispute settlement procedure, the FWC is not exercising judicial power, but a power of private arbitration.[37] As a private arbitrator the FWC is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.[38]
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd,[39] the Full Federal Court said at [70] to [71] that the powers and functions of the FWC identified in sections 577, 578, 590, 593, 595, 677 and 678 of the FW Act are available to the FWC when conducting a private arbitration.
Relevantly sections 577 and 578 of the FW Act provide as follows:
“s.577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.”
“s.578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; …”
Clause 5 of the Dredging Agreement describes the scope of the Dredging Agreement as follows:
“5. SCOPE OF THE AGREEMENT
5.1 This Agreement covers the Employer, the Union (subject to s 183 of the FW Act) and Employees who are engaged in the classifications in this Agreement to work on vessels crewed (manned) by the Employer in or in connection with:
(a) Dredging in Australia, including travelling to or from a dumping area;
(b) while travelling from port to port.5.2 The parties to this Agreement acknowledge and agree that any Contractors and/or Sub-Contractors engaged and used by the Employer to perform any Dredging Work shall provide the same terms and conditions as set out herein to those of its employees who perform work within the classifications of this Agreement for the duration of their work as a Contractor and/or Subcontractor of the Employer. The MUA undertakes that it will not, as a result of this provision, approach or seek to approach any Contractor or Sub-Contractor of the Employer in an attempt to gain any further
benefit, over and above the terms and conditions of employment set out in this Agreement, from the Employer's Contractors or Sub-Contractors throughout the life of this Agreement.5.3 When a contractor-provided Support Vessel is working in or in connection with dredging work it will be covered by the terms of this Agreement.
5.4 The Employer will ensure that Vessels entering and Exiting Australia, will be crewed by Australian seafarers.
5.5 This Agreement does not cover rock-dumping vessels.”
The CFMEU submits that during the Relevant Period, the Vessel provided by Boskalis was a Support Vessel for the purposes of the Dredging Agreement and was performing work in, or in connection with, dredging work with clause 5 of the Dredging Agreement.
AOS submit that when the scope clause of the Dredging Agreement is read in conjunction with the definition of the employees covered by the Dredging Agreement, it is clear that the Dredging Agreement is confined to covering work in the dredging industry and/or work that involves a dredging vessel.
AOS submits that during the Relevant Period, the Vessel provided by Boskalis was a self-propelled vessel used in construction and that consequently, AOS and the Relevant Employees were covered by the Offshore Agreement not the Dredging Agreement.
The Full Bench, in Princess Linen Services Pty Ltd v United Workers’ Union[40] at [15] and [16] of its decision, recently confirmed the principles of interpretation of enterprise agreements as follows:
“The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene as follows (citations omitted):
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”
The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).”
It is justifiable to read an agreement to give effect to its evident purpose, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. A Court or Tribunal should not adopt a narrow or pedantic approach to the interpretation of enterprise agreements.[41]
AOS argues that when read as a whole, it is clear that the Dredging Agreement is intended to cover work in the dredging industry and/or work that involves a dredging vessel, and as a corollary, not work that would otherwise be covered by the Offshore Award. This oversimplifies the distinction between the coverage of both Agreements.
Work in the ‘Dredging Industry’ is expressly excluded from the scope of the Offshore Agreement. However, the scope of the Dredging Agreement is not defined by reference to the ‘Dredging Industry’ but rather ‘Dredging in Australia’. A ‘Vessel’ is defined in the Dredging Agreement in clause 3 to include vessels that are not dredgers:
“Group 1 Vessels means all self-propelled dredges, including cutter suction dredges, trailer suction hopper dredges, backhoe dredges, and split hoppers barges greater than 3,000 gross tonnes.
Group 2 Vessels means all self-propelled vessels other than Group 1 vessels, including hopper barges less than 3,000 gross tonnes and support vessels including Tug/Multicats and launches.”
Similarly, the definition of Employee for the purposes of the Dredging Agreement does not refer to a person employed in the “Dredging Industry’ rather ‘Employee’ is defined as follows:
"‘Employee’ means an employee who is employed to work on or in connection with a dredging project and whose employment is of a casual nature.”
Mr Gakis has provided an explanation as to why the Dredging Agreement uses the term ‘Dredging in Australia’ and does not use the term ‘Dredging Industry’.[42] Mr Sweetman did not. Given that both the Offshore Agreement and the Dredging Agreement were negotiated in the same year, the fact that different terms were used tends to weigh in favour of the evidence of Mr Gakis that this was intentional choice on the part of the negotiating parties.
AOS argued in closing that Affected Employees were not “Employees” for the purposes of the Dredging Agreement because the Affected Employees were not employed on or in connection with a ‘Dredging Project’.
For the purposes of the Dredging Agreement, a ‘Support Vessel’ is defined in clause 3 as:
“Support Vessel means any vessel, designed and/or equipped to assist or support in or in connection with Dredging Work including providing related services to dredging work such as, but not limited to, anchor handling, towage, carriage/transport of cargo and supplies, crew transfers.”
It is not in dispute that the Vessel was equipped with a Scanmudring grab so that it could undertake excavation works at the continental slope at a record depth of 600 meters, or that the Vessel did in fact undertake excavation work. What is in dispute is whether such work was ‘Dredging Work’ / ‘Dredging in Australia’ and whether it was performed by employees employed in or in connection with a ‘Dredging Project’ for the purposes of the Dredging Agreement.
Mr Sweetman conceded that dredging involves the removal of the seafloor and that the excavation work undertaken by the Vessel was the removal of the seabed.[43] Mr Sweetman asserted that ‘Dredging Work’ is limited to removal of the seafloor to a depth of around 150m because dredging work typically occurs in shallow water close to shore. There is nothing in the Dredging Agreement which might confine dredging work to excavation of the seabed at a particular depth.
It is uncontroversial that the work performed by the Vessel in the Relevant Period was novel because of the depth at which it occurred.[44] But the depth that the work occurred does not change the nature of work from being the excavation of seafloor.
The evidence is that during the Project briefings, Boskalis issued a document which described the Vessel as:[45]
“CSV Boka Tiamat with specially designed dredging tool”.
Mr Sweetman says he believes this was a mistake, but no witness was called from Boskalis to give evidence to this effect.[46]
Furthermore, the evidence is that at inductions for the Vessel, employees were informed that to perform the Continental Slope Work, the Vessel was equipped with a Scanmudring Grab to ensure “more accurate dredging”, and the Scanmudring Grab had a “…potentially tilting function to dredge slopes more accurately and avoid destabilizing slope”.[47]
The Vessel Daily Progress Reports record that:[48]
a.From 15 December 2023 to 19 December 2023, the Vessel prepared the seabed for excavation by surveying the excavation area and installing beacons.
b.From 20 December 2023 to 21 December, the Vessel undertook “excavation layer dredg[ing].”
c.From 22 December 2023 until 2 January 2024, the Vessel conducted “excavation works”.
d.On 3 January 2024, the Vessel conducted survey works on the continental slope to finalise the excavation work.
e.On 4 January 2024, the vessel completed the “excavation work”.
Based on the evidence before me, I am satisfied that the preparation for, and execution of, the excavation of the seabed during the Relevant Period was ‘Dredging Work’ and ‘Dredging in Australia’ for the purposes of the Dredging Agreement.
The term ‘Dredging Project’ is not defined in the Dredging Agreement. A project is a sequence of tasks that must be completed to attain a certain outcome. A project may consist of multiple constituent projects, as is the case with the Scarborough Energy Project. The Project involves the development and subsequent operation of an offshore gas field off the coast of north-Western Australia. The construction phase of the Project consists of various individual projects including the Preparatory Work. The Preparatory Work is itself divided into five separate projects or stages.
The Vessel was modified and then deployed to perform a particular sets of tasks for the fourth stage of the Preparatory Work. This is consistent with Mr Sweetman’s evidence that: “a dredging project involves a company being brought in for the specific purpose of dredging a particular location”.[49]
The evidence is that AOS was contracted to provide the Affected Employees in two rotations (25 personnel on board at each time) while the Vessel performed a set of tasks. Those tasks are documented in the Vessel Daily Progress Reports and led to the attainment of a specific outcome which was to excavate a particular area of seabed.
I am therefore satisfied that during the Relevant Period, the Affected Employees were engaged in a ‘Dredging Project’ and covered by the Dredging Agreement.
DEPUTY PRESIDENT
Appearances:
Ms S Sayed, for the Applicant.
Mr J McLean, for the Respondent.
Hearing details:
2024
PERTH
23 April
Final written submissions:
Applicant’s final written submissions filed on 15 May 2024.
Respondent’s final written submissions filed on 22 May 2024.
Applicant’s final written submissions in reply filed on 5 June 2024.
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 19-65.
[3] Ibid 66-131.
[4] Ibid 133-147.
[5] Ibid 155-192.
[6] Ibid 155.
[7] Ibid.
[8] Ibid 156.
[9] Ibid 134, 160.
[10] Ibid 156.
[11] Ibid.
[12] Ibid.
[13] PN151-PN152.
[14] DCB (n 2) 156.
[15] Ibid 157.
[16] Ibid.
[17] Ibid 158.
[18] Ibid 157-8.
[19] Ibid 19.
[20] Ibid 159.
[21] Ibid.
[22] Ibid 159, 133.
[23] Ibid 133.
[24] Ibid 140.
[25] Ibid 142.
[26] Ibid 19, 23, 25, 66.
[27] Ibid 19-65, 67-128.
[28] Ibid 129.
[29] Ibid 159.
[30] Ibid 12.
[31] Ibid; Fair Work Act 2009 (Cth) (FW Act) s.739(6).
[32] See Dredging Agreement at clause 4 – Parties to the Agreement and clause 3 – Definitions, DCB (n 2) 166-167.
[33] DCB (n 2) 12.
[34] Ibid.
[35] FW Act (n 32) s.739(3).
[36] Ibid s.739(5).
[37] Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [38]; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 [75] to [79]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].
[38] CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU (n 23) at [19]-[24]; AMWU v ALS Industrial Australia (n 38).
[39] [2015] FCAFC 123; 235 FCR 305.
[40] [2021] FWCFB 1903.
[41] See Kucks v CSR Ltd (1996) 66 IR 182, 184; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005 at [114].
[42] PN109.
[43] PN139-PN142.
[44] DCB (n 2) 129.
[45] Ibid 140.
[46] Ibid 154.
[47] Ibid 19, 23, 25, 66.
[48] Ibid 19-65, 67-128.
[49] Ibid 157.
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