Construction, Forestry and Maritime Employees Union v Tidewater Ship Management (Australia) Pty Ltd trading as Tidewater
[2025] FWC 987
•23 JUNE 2025
[2025] FWC 987 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry and Maritime Employees Union
v
Tidewater Ship Management (Australia) Pty Ltd trading as Tidewater
(C2025/1011)
DEPUTY PRESIDENT BINET
PERTH, 23 JUNE 2025
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
[1] On 11 February 2025 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 Tidewater Ship Management (Australia) Pty Ltd trading as Tidewater (Tidewater) in accordance with the dispute resolution procedure contained in Clause 10 of the Tidewater Ship Management (Australia) Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 (Agreement).
[2] The dispute concerns whether the payment that Tidewater is required by clause 19 to make to an agreed severance provider on behalf of each casual employee is a percentage of the casual employee earnings with or without the casual loading.
[3] On 4 March 2025 and 21 March 2025 the parties participated in a conciliation, but the issues in dispute could not be resolved.
[4] Directions for the filing of materials in advance of a hearing were issued to the parties on 26 March 2025 (Directions). The Application was listed for hearing in person in Perth on 7 May 2025 (Hearing).
Permission to be represented
[5] 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]
[6] Tidewater sought permission to be represented at the Hearing.
[7] Having considered the submissions of the parties, leave was granted to Tidewater 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.
[8] At the Hearing, Ms Sumayyah Sayed a solicitor employed by the CFMEU appeared on behalf of the CFMEU and Mr Duncan Fletcher of Kingston Reid Perth (Mr Fletcher) appeared on behalf of Tidewater.
Evidence
[9] In accordance with the Directions the CFMEU filed a witness statement of Mr George Gakis (Mr Gakis) setting out his evidence in chief.[2] Mr Gakis is the Assistant State Secretary of the Western Australian Branch of the Maritime Union of Australia Division of the CFMEU. He has responsibility for members of the CFMEU engaged in the offshore oil and gas industry including those employees employed by Tidewater. In the course of this role he participated in the bargaining for the Agreement. Mr Gakis was cross examined by Mr Fletcher at the Hearing.
[10] In accordance with the Directions Tidewater filed a witness statement of Mr Mark Hudston (Mr Hudston) setting out his evidence in chief.[3] Mr Hudston was the appointed bargaining representative for the employer for some of the bargaining period for the Agreement. Mr Hudston was cross examined at the Hearing by Ms Sayed.
[11] 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).
[12] Written closing submissions were filed by the CFMEU and by Tidewater on 30 May 2025.
[13] 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 my decision.
Background
[14] Tidewater owns and operates a fleet of offshore support vessels serving the oil and gas industry.
[15] In 2022 Tidewater acquired Swire Pacific Ship Management (Australia) Pty Ltd (Swire), another offshore vessel owner/operator. At that time Swire was in the process of negotiating a replacement agreement for the Swire Pacific Ship Management (Australia) Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Maritime Offshore Oil and Gas Industry) Enterprise Agreement 2018 (Replacement Agreement).[4]
[16] Swire had engaged Mr Hudston who was then a director of Mapien Pty Ltd (Mapien) to assist Swire to negotiate the Replacement Agreement. As part of that engagement, Mr Hudston was nominated by Swire to act as its bargaining representative in negotiations for the Replacement Agreement.[5]
[17] Following Tidewater’s acquisition of Swire Mr Hudston was appointed a bargaining representative on behalf of Tidewater. The Replacement Agreement was renamed to the Tidewater Ship Management (Australia) Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 and eventually became the Agreement that is the subject of this dispute.[6]
[18] Mr Hudston served as Swire’s, then Tidewater’s, nominated bargaining representative for the Replacement Agreement from June 2022 until his employment with Mapien ended in June 2023.[7]
[19] Mr Hudston attended 14 bargaining meetings for the Replacement Agreement between June 2022 and June 2023.[8] Mr Hudston’s employment with Mapien ended in or around June 2023. Mr Clarence Paul (Mr Paul) briefly had conduct of the negotiations on behalf of Tidewater but was then replaced by Mr Warrren Harrower (Mr Harrower).[9]
[20] During bargaining, the CFMEU advocated for the inclusion of a severance fund applicable to both permanent and casual employees. The CFMEU’s initial position was that severance contributions should be made at the rate of 5% of ordinary time earnings. The CFMEU also proposed that, in the case of casual employees, ordinary time earnings should include the casual loading.[10]
[21] Mr Hudston’s evidence is that Tidewater rejected the CFMEU’s claim and following further negotiation, the parties agreed to a revised severance contribution to be made on behalf of casual employees only. It is Mr Hudston’s evidence that the parties agreed to exclude the casual loading from the calculation of the amount to be contributed to the severance fund.[11]
[22] Mr Hudston is adamant that at no point during his involvement in the bargaining process did Swire and/or Tidewater agree that the casual loading would be included in the calculation of amounts to be paid into the severance fund.[12] Tidewater chose not to call Mr Paul or Mr Harrower as witnesses.
[23] The evidence of Mr Gakis in his witness statement is that Tidewater agreed to the inclusion of the casual loading in the calculation. However, neither in his witness statement nor under cross examination was he able to identify with whom or when he reached such an agreement with Tidewater.
[24] Similarly, neither in his witness statement or under cross examination was Mr Hudston able to identify with whom or when he reached agreement with the MUA that the casual loading would not be included in the calculation of the amount to be contributed to the Severance Fund.[13]
[25] The clause agreed between the parties and approved by a majority of the workforce is as follows:
“19. SEVERANCE
19.1 The Severance provider will be selected by a majority vote of Casual Employees which will take place within three (3) months of registration of this Agreement.
19.2 The Selected Severance Provider shall remain the Severance Provider until this Agreement is terminated or replaced.
19.3 The Employer will make severance payments (payable on a monthly basis) to the Selected Severance Provider for all Casual Employees covered by this Agreement.
19.4 The Employer will facilitate the enrolment of all Casual Employees into the Selected Severance Provider.
19.5 The Employer will pay the equivalent of 1% of a Casual Employee's ordinary earnings into the elected Severance Fund on behalf of each Casual Employee covered by this Agreement in accordance with the Selected Severance Provider’s rules.
19.6 The Employer will pay the fixed rate of 1% of a Casual Employee’s day rate into the elected Severance Fund on behalf of each Casual Employee covered by this Agreement and an additional 1% from 1st May 2026 to a total of 2% over the life of the Agreement.”
[26] The negotiations concluded in or around November 2023 and Mr Harrower prepared a document called ‘2023 Agreement – Explanation Sheet’ to assist employees determine whether or not to vote in favour of the Replacement Agreement (Explanation Sheet).[14]
[27] On 27 November 2023, Tidewater provided its employees the Explanation Sheet. [15]
[28] The Explanation Sheet explained that clause 19 was a new clause for the Agreement. It described the obligation in the clause as follows:[16]
“Employer contribution to the elected severance fund to 1% initially and then to 2% from 01 March 2026.”
[29] Mr Harrower was not called as a witness to give evidence as to his understanding of the components of the employer contribution or any information he provided to employees who raised any questions about the relevant clause in the ballot period.
[30] The Explanation Sheet makes no reference to the casual loading in relation to the payment to the severance fund. Mr Gakis conceded this at the Hearing.[17]
[31] On 18 January 2024, the Agreement was approved by the FWC and on 25 January 2024 it came into effect. [18]
[32] For the purposes of clause 19 - Severance, the selected severance provider is Protect. [19]
[33] From the commencement of the Agreement until the dispute was raised by the MUA Tidewater have not included the casual loading in their calculation of the payment made to the Severance Fund on behalf of the casual employees.
[34] The parties agree that the relevant steps in the dispute resolution procedure set out in the Agreement have been satisfied and that the FWC has jurisdiction to deal with the dispute.[20]
Consideration
[35] 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.
[36] The Application was made pursuant to section 739 of the FW Act.
[37] 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.
[38] The Agreement was approved on 18 January 2024. The nominal expiry date of the Agreement is 1 August 2027.
[39] The Agreement contains a dispute resolution procedure of the nature contemplated by section 739 at clause 10. Clause 10 provides as follows:
“10.1 When any industrial dispute arises, including 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 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.
10.2 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.
10.3 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,
(b) Unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(c) 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.
10.4 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.
10.5 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.
10.6 Employees who are involved in the dispute during their off swing or off duty time are not entitled to any additional payments. Employees who are involved in the dispute whilst on duty, can only take time off with pay with the approval of the Master and for up to two hours per shift. Employees who are required as a witness in an arbitration will have access to on board teleconferencing facilities, where such facilities are available and working. Employees will not be transported from the vessel to any meetings to participate, unless directed by the FWC.”
[40] The FWC may deal with a dispute only on application by a party to the dispute.[21]
[41] The Agreement covers employees of Tidewater employed to work in the classifications of Chief Integrated Rating, Integrated Rating/Crane Operator, Integrated Rating, Chief Cook, Cook, Chief Steward or Steward on a Tidewater operated vessel (Employees).[22]
[42] The Employees are, or are eligible to be, members of the Maritime Union of Australia Division of the CFMEU. [23]
[43] The CFMEU is named as a party to the Agreement and is covered by the Agreement.[24]
[44] There is no dispute, and I am satisfied, that the issues in dispute between the parties fall within the scope of clause 10 of the Agreement. [25]
[45] There is no dispute, and I am satisfied that the CFMEU has complied with the procedural steps contained in clause 10 of the Agreement. [26]
[46] I am satisfied that the CFMEU has standing to make the Application and that I have the jurisdiction to determine the dispute.
[47] In dealing with the dispute the FWC cannot exercise powers limited by the term.[27] 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.[28]
[48] When arbitrating a dispute under the dispute settlement procedure, the FWC is not exercising judicial power, but a power of private arbitration.[29] 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.[30]
[49] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd,[31] 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.
[50] 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; …”
[51] Clause 19 contains two sub clauses dealing with the quantum of the payment that Tidewater is required to pay to the severance provider each month for each casual employee.
“19.5 The Employer will pay the equivalent of 1% of a Casual Employee's ordinary earnings into the elected Severance Fund on behalf of each Casual Employee covered by this Agreement in accordance with the Selected Severance Provider’s rules.
19.6 The Employer will pay the fixed rate of 1% of a Casual Employee’s day rate into the elected Severance Fund on behalf of each Casual Employee covered by this Agreement and an additional 1% from 1st May 2026 to a total of 2% over the life of the Agreement.”
[52] Tidewater submit that sub clauses 19.5 and 19.6 operate sequentially firstly to establish that “…1% of a Casual Employee's ordinary earnings…” will be paid into the selected severance fund (clause 19.5) and then that “…the fixed rate of 1% of a Casual Employee’s day rate…” will increase to 2% from 1 May 2026 (clause 19.6). Tidewater say that the phrases ‘ordinary earnings’ and ‘day rate’ in essence mean the same thing and both are intended to exclude the casual loading from the calculation of the amount to be contributed to the Severance Fund.
[53] The MUA submit that clause 19.5 was erroneously included in the Agreement and that the parties intended that the rate of contribution would increase as set out in clause 19.6. The CFMEU say that the phrase ‘day rate in clause 19.6 was intended to ensure that the casual loading was included in the calculation of the amount to be contributed to the Severance Fund.
[54] The Full Bench, in Princess Linen Services Pty Ltd v United Workers’ Union[32] at [15] and [16] of its decision, 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).”
[55] The Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[33] at [114] stated as follows in respect to the task of construction:
“… The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
a.the text of the agreement viewed as a whole;
b.the disputed provision’s place and arrangement in the agreement;
c.the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. 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.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii)notorious facts of which knowledge is to be presumed; and
(iii)evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.
[56] As evidenced by the dispute between the parties and the submissions made in these proceedings the meaning of clauses 19.5 and 19.6 is ambiguous and susceptible to more than one meaning.
[57] Neither party suggests that clauses 19.5 and 19.6 were intended to create two separate obligations for Tidewater to contribute payments to the severance fund on behalf of casual Employees. This is consistent with the Explanatory Statement which identifies a singular obligation albeit one which increases in value over time.
[58] The explanation of the relationship between clause 19.5 and 19.6 provided by Tidewater requires the torturous use of the language in clauses 19.5 and 19.6. It seems more likely that clause 19.5 was inadvertently included in the Agreement and that the actual intention of the parties was for clause 19.6 to replace clause 19.5 given:
a. Both clauses contain different language. Clause 19.5 provides for the payment of an amount ‘equivalent of 1%’. Clause 19.6 provides for the payment of a ‘fixed rate’. Clause 19.5 uses the phrase ‘ordinary earnings’. Clause 19.6 uses the phrase ‘day rate’. Had the parties intended the clauses to operate together the same language would have most likely been replicated in both clauses particularly given they are located so closely together in the Agreement.
b. The evidence of the parties with respect to negotiation of clause 15. Over the course of the negotiations the MUA made concessions with respect to the scope and quantum of the claim. It is plausible that alternate clauses were proposed by the parties over the course of negotiations and the surplus clause was inadvertently not removed.
c. The change in personnel by Tidewater in the course of the negotiations gave rise to the possibility of errors in drafting being overlooked.
d. Neither Mr Gakis or Mr Hudston could confirm the reason for the inclusion of both clauses.
[59] The evidence of the witnesses in their evidence in chief and under cross examination is that their respective positions in the course of bargaining were that the MUA sought for the casual loading to be included in the calculation of the amount paid by Tidewater to the Severance Fund and that Tidewater sought not to have it included.
[60] There is however no compelling evidence to suggest that the respective bargaining representatives ultimately reached agreement.
[61] There is no evidence of what the employees who voted up the Agreement understood the payment to include.
[62] The phrases ‘ordinary earnings’ and ‘day rate’ are not defined in the Agreement although the method for calculating a ‘daily rate’ is set out in the Agreement.
[63] Employees covered by the Agreement are paid in accordance with Clause 16 – Salaries. Clauses 16.5 and 16.6 provide:[34]
“16.5 The Aggregate Salaries in the Pay Schedule to this Agreement have been fixed on the basis that except where otherwise provided in this Agreement they take into account all aspects and conditions of employment.
16.6 Except where expressly provided to the contrary in this Agreement, the amounts payable to an Employee pursuant to this clause 16 constitute the whole of an Employee’s remuneration. No additional or other payments are payable in respect of overtime or any penalty or disability of any kind. The rates of salary for parts of a year are calculated as follows:
(a) The monthly rate by dividing the annual rate by 12;
(b) The fortnightly rate by dividing the annual rate by 26;
(c) The daily rate by dividing the annual rate by 364.”
[64] According to note (ii) in the Pay Schedule the Aggregate Salaries in the Pay Schedule exclude casual loading.[35]
[65] Clause 12 sets out the rate for the casual loading:[36]
“12.3 Casual Employment
(a) A Casual Employee engaged as such will be paid a casual loading of 25% over the life of the Agreement in accordance with 12.3 (b), in lieu of:
(i)Annual leave and personal/carer’s leave;
(ii)Private health insurance;
(iii)Short-term loading.
(b) Casual Loading will be 21.5% upon approval of the Agreement and shall increase as follows:
(i)1st May 2024 casual loading increases to 23%;
(ii)1st May 2025 casual loading increases to 24%;
(iii)1st May 2026 casual loading increases to 25%.”
[66] Uncontroversially for the industry the evidence is that when a Casual Employee is rostered on a vessel or rostered off a vessel they are paid the Aggregate Salary plus the Casual Loading.[37]
[67] Elsewhere in the Agreement where the parties have reached agreement about the inclusion of the casual loading in the calculation of an allowance or other payment they have expressly used the language defined in the Agreement. For example in clause 17 which provides for the payment of superannuation, the clause expressly provides that casual loading is to be included in the calculation of the superannuation payment made on behalf of Casual Employees in addition to ‘Aggregate Salary’:
“17.2 The Employer will make superannuation contributions on behalf of each Employee to the Default Fund or another complying fund at the Employee's election.
(a)Employer’s contribution for Permanent Employees shall be 13.5% of the Aggregate Salary of the Employee, which includes the minimum contribution under the Superannuation Guarantee (Administration) Act 1992 (Cth).
(b)Employer’s contributions for Casual Employees shall be made into the Default Fund at the rate required under the Superannuation Guarantee Administration Act 1992 (Cth) plus one (1) percentage point. For the avoidance of doubt, the Employers contributions for Casual Employees will be calculated by factoring in the casual loading.
(c)Contributions will be made monthly within 28 days from month's end.”
[68] It seems most likely on the evidence before me that the parties chose not to use the term ‘Aggregate Salary’ and to not expressly refer to casual loading in clause 19.6 because they had in fact not reached an agreement as to whether the casual loading was to be included and both fancied their chances that the ambiguous language would subsequently be interpreted and applied in their favour.
[69] There is no evidence as to what the Employees understood clause 19 to mean. Other than that the Employees nor their representatives appear to have raised any issue with Tidewater’s interpretation of the Agreement until nearly a year after the Agreement commenced operation.
[70] I note:
a.The similarity of the phrase ‘day rate’ with the phrase ‘daily rate’ which has defined meaning in the Agreement which is exclusive of casual loading.
b.Clause 16.6 provides that Aggregate Salary takes into account all aspects and conditions of employment unless expressly stated otherwise in the Agreement.
c.Elsewhere in the Agreement (see clause 17) the parties have expressly identified circumstances where the casual loading is paid in addition to the Aggregate Salary.
d.Casual employees do not ordinarily have an entitlement to redundancy pay. To add the casual loading to a substitute severance entitlement would create inequity between casual employees and permanent employees for whom redundancy pay does not include loadings or penalties.
e.The lack of evidence of any agreement that casual loading would be included in the calculation of the payment of the amount to be paid by Tidewater to the severance fund.
f.The lack of evidence that the Employees who voted up the Agreement believed that the payment made by Tidewater would include the casual loading.
[71] Based on the limited evidence filed and the submissions made I am not satisfied that either clauses 19.5 or 19.6 require Tidewater to include the Casual Loading in the calculation of the amount to be contributed to the severance fund.
DEPUTY PRESIDENTAppearances:
Mr S. Sayed, Solicitor from the CFMEU, for the Applicant.
Mr D. Fletcher, Solicitor from Kingston Reid Perth, for the Respondent
Hearing details:
2025
7 May
In person, PerthFinal written submissions:
CFMEU: 30 May 2025
Tidewater: 30 May 2025
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 171-172.
[3] Ibid 181-183.
[4] Ibid 181.
[5] Ibid 181.
[6] Ibid.
[7] Ibid.
[8] Ibid 182.
[9] Transcript of proceedings, Construction, Forestry and Maritime Employees Union – The Maritime Union of Australia Division v Tidewater Ship Management (Australia) Pty Ltd Trading AS Tidewater (Fair Work Commission, C2025/1011, Binet DP, 7 May 2025) (Transcript) at PN310.
[10] DCB (n 2) 182-183.
[11] Ibid 182.
[12] Ibid 182-183.
[13] Transcript at PN128.
[14] Transcript at PN49.
[15] DCB (n 2) 70.
[16] Ibid 138-139.
[17] Transcript at PN133.
[18] DCB (n 2) 70.
[19] Ibid.
[20] Ibid .
[21] Ibid; Fair Work Act 2009 (Cth) (FW Act) s.739(6).
[22] See Agreement at clause 4 – Coverage, DCB (n 2) 82.
[23] DCB (n 2) 70.
[24] See Agreement at clause 4 – Coverage,.AE523154 PR770339, [2024] FWCA 197 at [8]
[25] DCB (n 2) 70.
[26] Ibid .
[27] FW Act (n 32) s.739(3).
[28] Ibid s.739(5).
[29] 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].
[30] 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).
[31] [2015] FCAFC 123; 235 FCR 305.
[32] [2021] FWCFB 1903.
[33] [2017] FWCFB 3005; (2017) 268 IR 285 at 310.
[34] DCB (n 2) 33.
[35] Ibid 64
[36] 28
[37] 169-170
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