[2020] FWC 3020

The attached document replaces the document previously issued with the above code on 27 October 2020.

Details: Correction to representatives named as appearing.

R James
Associate to Deputy President Beaumont

Dated 28 October 2020

[2020] FWC 3020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Odyssey Marine Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(RE2020/150)

DEPUTY PRESIDENT BEAUMONT

PERTH, 27 OCTOBER 2020

Dispute under s 505 of the Fair Work Act 2009 (Cth) - Alleged dispute concerning entering an Odyssey marine or crewed vessel in the port of Port Hedland – whether dispute exists at all – whether suitable room or area exists pursuant to s 492(3).

[1] Over the course of a couple of days in February 2020, Mr O’Brien, an Organiser of the Construction, Forestry, Maritime, Mining and Energy Union (the Union), provided Odyssey Marine Pty Ltd (Odyssey) with right of entry notices to enter Odyssey owned or crewed vessels in the port of Port Hedland, Western Australia (Port), and at Odyssey’s yard at 15 Anderson Street, Port Hedland. The entries were for the purpose of holding discussions with members and potential members of the Union pursuant to s 484 of the Fair Work Act 2009 (Cth) (the Act).

[2] Odyssey operates a logistics and marine support services business servicing various commercial contracts of the Pilbara Ports Authority (the PPA) and other commercial users, primarily in the Port. 1 At the relevant time, it had 11 vessels operating at the Port, crewed by employees and labour hire workers.

[3] Odyssey said the discussions with the Union (under s 484) ought to be held in the crib room at its yard (which had moved to Lot 1431 Mackey Street, Port Hedland) (the Yard). The Yard is approximately a two minute drive from the Nelson Point Tug Pens, which is where all, bar two, of Odyssey’s vessels are berthed.

[4] Odyssey’s Mr Hedges, the company’s Marine Manager, gave evidence concerning the infrastructure and operations of the 11 vessels. The Union took no issue with Mr Hedges’ evidence concerning nine of the vessels, which, in short, did not have a room or area capable of satisfying the descriptions in ss 492(3)(a) and (b). However, with regards to the two remaining vessels, the Amplitude and the Puriya, there remained the issue of whether there was a room or area capable of satisfying the criteria set out in s 492(3) of the Act.

[5] Having made the application under s 505 of the Act to deal with a right of entry dispute, Odyssey submitted that, despite purported genuine efforts to do so, the parties were unable to agree the location for discussions.

[6] The Union, however, disagreed that there was a dispute between it and Odyssey over the application of s 492(3) of the Act (which details the location for holding interviews and discussions, and what to do if the permit holder and occupier cannot agree on the room or area of the premises). The Union advanced that Odyssey was seeking a decision and order with respect of future rights of the Union under s 492(3), in circumstances where there was no dispute. On that basis, said the Union, the Commission had no jurisdiction to hear the matter.

[7] In summary, except for the Union’s jurisdictional objection, the scope of the application essentially relates to whether two vessels, the Amplitude and Puriya, which are Odyssey’s Survey Vessels, have a room or area that is capable of satisfying the criteria in s 492(3). It appears settled that the remaining nine vessels are incapable of satisfying such criteria, but nevertheless the point is still explored.

Background to the dispute

Odyssey Marine’s operations

[8] As noted, Odyssey owns and operates several vessels (Vessels or individually the Vessel) as part of its operation in the Port. They include:

a) the Akuna IV and Odyssey, which are Pilot Boats. The Pilot Boats each have a crew of two employees and typically perform pilot transfers from shore to ships around the Port;

b) the Yikara, Cloudbreak, Whaleback, Piparn and Indigo, which are Lines Boats. The Lines Boats each typically have a crew of two employees, and perform tasks including running mooring lines, and attending to draft surveyors;

c) the Centaur and Minotaur, which are Large Lines Boats. The Large Lines Boats have a crew of two employees when operated, and typically perform freight transfer tasks; and

d) the Amplitude and Puriya, which are Survey Vessels. The Survey Vessels typically have a crew of two employees when operated. The Amplitude typically performs freight transfers, and very occasionally performs 24/7 operations. The Puriya’s typical work scope is split into two 6-month periods: during the first 6 months of a year, she performs ad hoc work (including the servicing of channel marker lights, deploying and retrieving marine monitoring equipment, and dive operations), whilst during the remaining 6 months she performs dredging survey work for the PPA. That dredging survey work requires 24/7 operations: the Puriya returns to its berth for shift changes, but otherwise remains in continuous effective operation.

[9] The parties agree that for the purpose of exercising a right of entry, each Vessel is a premise within the meaning of s 12 of the Act (as that term is used in s 484 of the Act). 2

[10] Odyssey requires each of the Vessels to engage in services based on the movement of other ships within the Port, and as dictated by its client and Port requirements. 3 Whilst all employees are assigned to a particular Vessel, and ordinarily operate that particular Vessel, all employees are qualified and skilled to operate any of the Vessels as operational needs require.4

[11] Odyssey’s employees who are eligible to be members of the Union at Port Hedland were covered by the GO INSHORE Port Hedland Enterprise Agreement 2016, at the time the application was made. 5 This agreement has since been terminated.6

[12] Their work is arranged on a 12 hour rotating roster for the 24/7 operations across day shift (06:00 - 18:00) and night shift (18:00 – 06:00 +1). However, save for limited exceptions, the Vessels do not operate on a 24 hour per day, seven day per week basis. Vessels regularly complete their operations, return to their berth, and the crew then return to the Yard to complete other tasks whilst awaiting the next Vessel operation. 7 Given the precise and carefully planned nature of the shipping schedule at the Port, Odyssey’s employees and labour hire workers know well in advance when, and at what time of the day, they will be required to complete a job.8

[13] It should be noted that in addition to its employee workforce, Odyssey engages an external labour hire company, Category 5 (Cat5 Employees), to provide masters and deckhands on board the Vessels. 9 When contracted to work for Odyssey, the Cat5 Employees are covered by the Ports, Harbours and Enclosed Water Vessels Award 2010 (the Award), as varied by individual flexibility arrangements (IFAs).10 The IFAs vary the effect of clause 19 of the Award such that Cat5 Employees are provided with one unpaid 30 minute meal break per shift, taken as directed by Odyssey and subject to the operational requirements of the Vessels (an arrangement consistent with Odyssey’s employees’ entitlement to breaks under the Agreement).11

[14] There is no dispute that Mr O’Brien was a permit holder for the purposes of the Act, who had given the requisite notices of entry and was seeking to enter the premises for the requisite statutory purpose of holding discussions.

[15] As indicated, the history of the dispute is brief. On Friday, 14 February 2020, Mr O’Brien gave notices under s 487 of the Act that he proposed to enter ‘[a]ny Odyssey Marine owned or crewed vessel in the Port of Port Hedland’ to ‘hold discussions with members and potential members’ on Thursday, 20 February 2020 and Friday, 21 February 2020, pursuant to s 484 of the Act (the First Notices).

[16] On Monday, 17 February 2020, Mr van der Spuy, the Chief Executive Officer of Odyssey, responded to the First Notices from Mr O’Brien, seeking clarification around the nature of the right of entry sought to be exercised:

Dear Joel,

I acknowledge the notice of right of entry dated 14 February 2020 (Notice).

Please note that Odyssey is not an ‘occupier’ of premises at the Port of Port Hedland for the purposes of the Notice.

Odyssey’s position is that the lunch room at the Odyssey office located at 15 Anderson St, Port Hedland is the only room or area that meets the criteria prescribed by s 492(3) of the Fair Work Act 2009 (Cth) (FW Act) with respect to the group of employees covered by the Notice and falling within s 484(a)-(c) of the FW Act, being a room or area:

1. In which those employees ordinarily take their meal and other breaks; and

2. That is provided by the Applicant for the purpose of taking meal and other breaks.

Can you please provide the MUA’s position in relation to this. 12

[17] On Tuesday, 18 February 2020, Mr O’Brien replied to Mr van der Spuy’s email attaching revised notices under s 487 of the Act. Those notices stated that Mr O’Brien proposed to enter ‘[a]ny Odyssey Marine owned or crewed vessel in the Port of Port Hedland and 15 Anderson St, Port Hedland’ to ‘hold discussions with members and potential members’ on Thursday, 20 February 2020, and Friday, 21 February 2020, pursuant to s 484 of the Act (Second Notices). Subsequent to the Second Notices, the dispute appears to have been lodged (on the same day).

[18] Mr van der Spuy, emailed Mr O’Brien not long after having received the Second Notice, his email read in part:

Dear Joel,

I acknowledge the two notices of right of entry dated 18 February 2020 (Notices).

Can you please confirm the notice of right of entry dated 14 February 2020 is now withdrawn?

The Notices seek right of entry to enter the premises of “Any Odyssey Marine owned or crewed vessel in the Port of Port Hedland and 15 Anderson St, Port Hedland”. [emphasis added]

Again, please note that Odyssey is not an ‘occupier’ of premises at the Port of Port Hedland for the purposes of the Notices. It is only the ‘occupier’ of the premises at 15 Anderson St, Port Hedland.

Odyssey’s position remains that the lunch room at Odyssey office located at 15 Anderson St, Port Hedland is the only room or area that meets the criteria prescribed in s 492(3) of the Fair Work Act 2009 (Cth) (FW Act) with respect to the group of employees covered by the Notice and falling within s 484(a)-(c) of the FW Act, being a room or area:

1. In which those employees ordinarily take their meal and other breaks; and

2. That is provided by the Applicant for the purpose of taking meal and other breaks.

In light of the recent Notices, can you please provide the MUA’s position in relation to this. 13

Questions to be answered

[19] The application was listed for conciliation but was unable to be resolved. On 31 March 2020, Odyssey submitted the issues between the parties could be resolved by the Commission determining the following questions:

1.Is there a room or area(s) on board the vessel known as the Akuna IV capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

2. Is there a room or area(s) on board the vessel known as the Yikara capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

3. Is there a room or area(s) on board the vessel known as the Amplitude capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

4. Is there a room or area(s) on board the vessel known as the Cloudbreak capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

5. Is there a room or area(s) on board the vessel known as the Puriya capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

6. Is there a room or area(s) on board the vessel known as the Whaleback capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

7. Is there a room or area(s) on board the vessel known as the Piparn capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

8. Is there a room or area(s) on board the vessel known as the Odyssey capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

9. Is there a room or area(s) on board the vessel known as the Indigo capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

10. Is there a room or area(s) on board the vessel known as the Centaur capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

11. Is there a room or area(s) on board the vessel known as the Minotaur capable of satisfying the criteria in s 492(3), and therefore being a ‘default’ meeting location?

12. When exercising a right of entry in relation to the Applicant’s Port Hedland operation, is there any location, other than the Crib Room capable of being a ‘default’ meeting location? If so, where? 14 (italics my emphasis)

[20] In its submission of 22 April 2020, Odyssey sought to amend the twelfth question so that it would read:

If the answer to any Questions 1 to 11 is ‘yes’ – are there any other grounds on which interviews or discussions under s 484 of the FW Act ought not be held in the room or area addressed in that question? If so, how should those discussions be conducted?

[21] The Union, while not conceding the Commission had jurisdiction to entertain Odyssey’s application, advanced that a question should be inserted prior to the first question, and thereafter the questions should be labelled 2-12 accordingly. This, said the Union, would more accurately reflect the dispute between the parties. That first question was:

Are the parties unable to agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions?

[22] The question asked by the Union evidently ties in with the issue of jurisdiction. It appears self-explanatory that the Commission is only empowered to deal with a dispute under s 505 where there is a dispute as to the operation of Part 3-4 of the Act. Because the Union contended there was no such dispute, it is timely to turn attention to that very issue. However, before doing so, the relevant legislative provisions are traversed.

Legislative framework

[23] Part 3-4 of the Act states that its object is to establish a framework for officials and organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

[24] Under s 484 of the Act, a permit holder may enter premises for the purposes of holding discussions with one or more employees who perform work on the premises. However, the organisation of the permit holder must be entitled to represent the employees’ industrial interests, and those same employees must want to participate in the discussions.

[25] Germane to this dispute are ss 492 and 505 of the Act. Section 492 is a right of entry provision which prescribes where on the work premises the aforementioned interviews or discussions may be conducted or held. The standard location is fixed by s 492(1). The section reads:

492 Location of interviews and discussions

(1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3) The permit holder may conduct the interview or hold the discussion in any room or area:

(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b) that is provided by the occupier for the purpose of taking meal or other breaks.

[26] The Commission may deal with a dispute only if it is expressly authorised to do so under or in accordance with another provision of the Act. 16

[27] Section 505 of the Act authorises the Commission to deal with disputes about the operation of Part 3-4. It is accepted that s 505 provides a non-exhaustive list of disputes capable of resolution under that section. 17 The Commission has held that despite the lack of reference to s 492, the Commission is nonetheless empowered to deal with such matters.18 Section 505 states:

505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.

Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.

Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.

Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

[28] Sections 595 and 598 provide the Commission’s power to deal with a dispute and to make decisions:

595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.

598 Decisions of the FWC

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.

(3) A decision of the FWC that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of the FWC that is not described as an order may be made by order.

Jurisdictional objection

[29] The Union objects to the Commission hearing the dispute, as it says there is no dispute in relation to the application of s 492(3) of the Act. It contends that the parties have not attempted to reach agreement on the location in which the permit holder is to hold discussions when exercising right of entry for the purposes of s 484 of the Act.

[30] Odyssey has advanced that despite purported genuine efforts to do so, the parties were unable to agree the location for those discussions. It now seeks a decision and order with respect to the issues identified under s 492(3) of the Act, in accordance with s 505 of the Act.

[31] To support its case, the Union referred to the decision of the Deputy President in Construction, Forestry, Mining, and Energy Union v Austral Bricks (Vic) Pty Ltd. 19 In that case it was said, where agreement between the permit holder and employer was not reached under s 492(1), it was only then that discussions were to be held in a room or area prescribed by s 492(3).20 The Deputy President clarified that the word ‘agreement’ in this context, was subject to a genuine effort to try to agree.21 Expanding upon this further, the Deputy President explained:

[37] … whilst the question whether the permit holder and the occupier cannot agree on a room or area of the premises in which the permit holder is to hold discussions will be a question of fact, it seems to me, as a minimum there must be a genuine effort to try to agree. That a permit holder and an occupier have differing positions of the location at which discussions should be held merely evidence that they do not agree. It does not establish that they cannot agree. It cannot be said that ‘a permit holder cannot agree’ if they have not tried to agree.

[38] In my view trying to agree involves more than turning up to the discussion with a fixed view and without a preparedness to consider the other party’s view about the location in which discussions should be held. The extent to which the parties have tried to reach an agreement is a question of fact and degree and will involve an assessment based on the circumstance faced by the parties at the time the agreement was sought. However, allowing a permit holder to simply maintain a fixed view about use of a meals room without requiring the permit holder to try to reach an agreement would elevate the default room to the status of the primary room in which discussion must be held. Such an outcome is contrary to the scheme established by s.492. 22

[32] In the decision of BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining & Energy Union (BGC), 23 Colvin J elucidated what was contemplated by s 492(2), and in doing so his Honour clarified, that with respect to the occupier:

21 …if the occupier refuses to propose a room or area or refuses to engage in discussions or seeks to defer consideration as to whether to agree then the parties cannot reach agreement. The unwillingness of the occupier to participate means that the permit holder cannot agree 'with the occupier of the premises'. Otherwise, the provision reduces to one where, in effect, consent from the occupier is required. For reasons I have given, that is not the proper construction of the provision. 24

[33] Concerning the permit holder however, his Honour expressed that:

22 The position is different if it is the permit holder who refuses to engage in discussions or is shown to be acting for a collateral purpose other than seeking to agree. The terms of s 492(1) show that it is for a permit holder to agree the rooms or areas for the discussions with the occupier. So, it is for the permit holder to genuinely seek to agree with the occupier. Then, only if the parties cannot agree does s 492(3) apply. The permit holder cannot by a unilateral refusal to participate in discussions or failure to identify any objective reason why a room or area was unsuitable bring into operation s 492(2) or by a desire to use the crib room irrespective of the circumstances refuse to agree and thereby, in effect, create a statutory entitlement to holds [sic] discussions in the crib room in any event. 25

[34] His Honour explained, it was not enough that the parties did not reach agreement, they have to be in a position where they cannot agree. 26 As to what that means, it would appear that the section invites an evaluation of the reasons why agreement has not been reached so as to determine whether there is, in fact, an impasse.27 His Honour stated in this respect that:

15 There are many reasons why parties may be unable to reach common ground as to whether a particular room or area may be used for discussions with workers. The parties may be unable to agree because there are objective considerations that would justify a reasonable person in the position of one of the parties refusing to agree. They may be unable to agree because one party simply refuses to engage in discussions with a view to reaching agreement. They may be unable to agree because one party seeks to extend the discussions rather than advance them to a conclusion. They may be unable to agree because one party has an unreasonable subjective view about the suitability of the room or some ulterior purpose for refusing to agree. They may be unable to agree because one party simply wishes to invoke the application of s 492(2) and (3) and refuses to agree for that reason. 28

[35] The evaluation of whether the permit holder and occupier ‘cannot agree’ is objectively premised, and should not be confounded by complex or detailed evaluation:

16 In my view, whether the parties cannot agree is to be evaluated objectively. It would be impractical and frustrate the evident purpose of the provision if the statutory authority to enter the crib room depended upon an inquiry into the state of mind of each party. There would likely be many instances where there was a state of limbo between a failure to agree and entry to the crib room release from which depended upon an inquiry into subjective intentions.

17 Further, the use of the term 'cannot agree' as distinct from a term such as 'unwilling to agree' supports the conclusion that the question whether the parties cannot agree is to be evaluated objectively. As does the absence of any reference to the purposes of the parties in refusing to agree.

18 Further, s 492 is a practical provision governing what is likely to be an everyday occurrence at work sites. It forms part of a group of provisions that should be interpreted 'practically and with an eye to common sense' having regard to the context in which it will be applied so that it can be implemented 'in a clear way on a day-to-day basis at work sites': Ramsay v Menso [2018] FCAFC 55 at [39] (Dowsett and Collier JJ) applying Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 at [15]. It balances the rights of all concerned: Ramsay v Sunbuild Pty Ltd [2014] FCA 54; (2014) 221 FCR 315 at [87]. 29

19 Given that the provision concerns access to have discussions with workers in a scheduled break where notice has been given in advance, determining whether parties 'cannot agree' on a room does not require a complex or detailed evaluation. The subject matter about which the parties are to agree is not complex. Therefore, the provision does not envisage an extended negotiation or mediation to resolve any difference between them as to the suitability of the room. 30

[36] To further illustrate the points made, his Honour stated:

20 It follows that as soon as one party has expressed a reason why it will not agree to a room that is objectively justifiable taking account of its interests and there is no other room proposed then the parties cannot agree. It was suggested that where the reason raised may be remedied, such as where the concern is that the room is not clean or does not have suitable furnishings, then unless and until there has been a discussion about what needs to be done and whether the occupier will make changes the point has not been reached where the parties 'cannot agree'. I do not accept that the statute contemplates discussions of this kind. The room or area proposed is to be considered in the state in which it appears at the time that the permit holder seeks access to hold discussions with workers. The question is simply whether agreement can be reached on the room as a place for discussions. It does not extend to a negotiation about how a particular room or area might be changed so as to make it suitable. Notice has been given. When the permit holder arrives she or he is seeking to hold discussions with workers. In those circumstances, the statutory right of entry is not to be barnacled with an extended discussion as to what might be done to improve the suitability of a particular room or area. 31

[37] The Union submits there has been no discussion in relation to a room or area in which the ‘Permit Holder was to hold discussions under s 492(1)’. The Union said that at most the exchange between Mr O’Brien and Mr van der Spuy could be characterised as a misunderstanding about the premises subject to the notice. It was observed that Mr van der Spuy’s objection that he was not the occupier of the Port tended to indicate that Mr van der Spuy was under the impression that the First and Second Notices were for the Port and not the premises subject to this dispute.

[38] Referring further to the exchange between Mr van der Spuy and Mr O’Brien, the Union observed that Mr van der Spuy did not enter into any verbal discussions with Mr O’Brien concerning the room or area under s 492(1). Further, neither Mr van der Spuy nor any officer of Odyssey entered into any discussions or made any representations with respect to each of the premises named in the application.

[39] Odyssey submitted that the Union appeared to have changed its position since the statement of agreed facts had been prepared by them both. Referring to that same document, Odyssey drew attention to paragraph [5]:

Despite genuine efforts to do so, the parties were unable to agree the location for those discussion. In those circumstances, s 492(3) of the Act required that the discussions be held in a room or area:

(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b) that is provided by the occupier for the purpose of taking meal or other breaks.

[40] Odyssey contended that if the Commission allowed the Union to depart from the agreed position, as outlined in the statement of agreed facts, that is the parties were not not able to agree, then it sought to rely upon an email chain between it and the Union. With respect to that email chain, Odyssey advanced that while the future conduct of a party (presumedly the conduct of the Union subsequent to the making of this application) is not determinative, it may assist the Commission in determining an issue in dispute. It continued, that Mr O’Brien had provided, since the application, several notices of entry and, on each occasion, Mr O’Brien had been invited, multiple times, to enter into discussions as to the location that the meetings would take place. However, despite this, Odyssey submitted that his response had been aloof.

[41] The starting point, however, is whether at the time the application was made the permit holder, Mr O’Brien, and Mr van der Spuy, could not agree on the room or location. At that time, it was not apparent that there had been verbal communication between the two concerning the matter. Therefore, the evidence before the Commission is primarily the First Notice and Second Notices, and Mr van der Spuy’s responses to the same.

[42] Mr O’Brien’s First Notices referred to entering the premises of ‘[A]ny Odyssey Marine owned or crewed vessel in the Port of Port Hedland’. The entries were planned for 20 and 21 February 2020. The first observation to make is that the reference to ‘[A]ny Odyssey Marine owned or crewed vessel’, is a reference to eleven vessels. While the First Notices refer to eleven vessels, Mr van der Spuy’s response outlines that ‘Odyssey’s position is that the lunch room at the Odyssey office… is the only room or area that meets the criteria prescribed by s 492(3)… Can you please provide the MUA’s position in relation to this?’ The second observation is that it is evident from Mr van der Spuy’s email in response, dated 17 February 2020, that Odyssey informed the Union there was only one location which satisfied the ‘criteria’ in s 492(3). Implicit in this response was that Odyssey had unequivocally adopted the position that the Vessels did not meet the ‘criteria’ in s 492(3).

[43] In response, Mr O’Brien sent through further entry notices on 18 February 2020. Those Second Notices were in respect of the same dates – 20 and 21 February 2020. The predominate change to the content of the Second Notices was the inclusion of the location ‘15 Anderson St, Port Hedland’. The third observation - Mr O’Brien still sought entry upon the Vessels. He continued to press for this in the Second Notices, albeit at that time he knew the position of Odyssey in this respect. He seemingly ignored or otherwise was unaccepting of that position.

[44] It is in these circumstances that Odyssey made its application to the Commission to deal with a right of entry dispute, on the basis that it and the Union were unable to agree the location for those discussion. I consider the summation was reasonably open to Odyssey to make on the facts.

[45] The Union contends that Mr van der Spuy did not enter into any discussions with Mr O’Brien in relation to agreement on the room or area under s 492(1). It further contends that neither Mr van der Spuy nor any officer of Odyssey entered into any discussions or made any representations with respect to each of the premises named in Odyssey’s application.

[46] To suggest that s 492(2) imports a requirement that the parties must ‘discuss’ the location for discussions, before it can be said that they ‘cannot agree’ on the room or area of the premises, is to read into an Act of Parliament words which are not there. In JJ Richards & Sons Pty Ltd and Anor v Fair Work Australia and Anor, 32 the Federal Court of Australia discussed three long established and fundamental principles to statutory construction.33 With regard to the second principle, Flick J said:

Second, the common law also recognised that “[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey. See also: Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103 per Northrop and Pincus JJ; Minister for Immigration and Citizenship v Hart [2009] FCAFC 112 at [6] per Spender J. 34

[47] While the parties in this case have not discussed the room or area of the premises, it does not follow that the requisite ‘cannot agree’ is unable to be satisfied. His Honour in BGC expressed that as soon as one party has expressed a reason why it will not agree to a room that is objectively justifiable taking account of its interests and there is no other room proposed, then the parties cannot agree. 35 To have ‘expressed a reason’, as referred to in BGC, does not require discussion. Written correspondence can clearly convey the position of a party and provide the reason or reasons, as to why it ‘cannot agree’.

[48] On an objective level, the email from Mr van der Spuy to Mr O’Brien on 17 February 2020, placed the Union on notice that Odyssey did not agree that there was a room or area on any of the Vessels that could be used. While the First Notices expressly referred to the Vessels, Mr van der Spuy’s correspondence explicitly stated that the lunchroom in the office in Port Hedland was the only room or area that met the criteria in s 492(3). It is perhaps open to argue Mr van der Spuy had skipped the second step (s 492(2)) by advancing immediately to a consideration of s 492(3), and therefore it could not be said that the ‘permit holder and the occupier cannot agree’. That contention, however, is artificial. By proceeding to a consideration of whether there was a room or area on any of the Vessels that was ordinarily used for meal or other breaks, and was provided for that purpose, invoked the immediate consideration of ss 492(2) and (3).

[49] His Honour in BGC recognised that one reason why parties ‘cannot agree’ is ‘because one party simply wishes to invoke the application of s 492(2) and (3) and refuses to agree for that reason’. 36

[50] Mr O’Brien’s response to Mr van der Spuy’s email, dated 17 February 2020, was the issuance of the Second Notices. Mr O’Brien justifies the provision of the Second Notices on the basis that Mr van der Spuy was confused in relation to the ‘premises’, particularly as to whether Odyssey was an ‘occupier’, and he therefore set out the premises more clearly and included the premises Mr van der Spuy asked him to include. It is simply not open on the facts to derive a finding that Mr van der Spuy asked Mr O’Brien to include the lunchroom in the Second Notices. He did not. However, I am satisfied that Mr O’Brien chose not to answer the question in the email dated 17 February 2020, which asked the Union what its position was in ‘relation to this’. ‘Relation to this’ clearly referred to Odyssey’s invocation of ss 492(2) and 492(3) of the Act. Rather than answering the question posed, Mr O’Brien issued the Second Notices, retaining within those Notices the reference to the Vessels. Evidently, the Union was unmoved by the position of Odyssey and signified the absence of agreement by yet again providing a notice of entry for the Vessels. On receipt of the Second Notices, it was abundantly clear, in my view, that the ‘permit holder and the occupier cannot agree on the room or area of the premises’.

[51] For the sake of completeness, I return to further contentions raised by the parties. In Odyssey’s submissions in reply and by way of observation, it drew attention to the entry notices Mr O’Brien had provided to Odyssey, post the filing of the application, asserting that reliance could be placed on Mr O’Brien’s conduct after the initiating application to determine whether the permit holder and occupier cannot agree on the room or area. I do not disagree with the proposition that reference could be had to such conduct, and reliance placed upon the same. It is necessary, after all, to have regard to the nature of the dispute alleged in the originating application and the factual circumstances as they evolve for the purpose of the arbitration of the dispute. 37 However, in light of the above findings and conclusion reached, further examination of the point is not required.

[52] At a later point in this decision s 521D of the Act is considered, notwithstanding that the originating application referred only to a dispute about the operation of s 492. The reason for such consideration arises in circumstances where Odyssey had in effect asserted that a dispute under s 521D was a live issue. Ultimately, I have found that not to be the case for the reasons detailed at paragraphs [128] to [143]. However, it is timely to touch on this issue now.

[53] The Union argued that it had not sought to enter the Survey Vessels. In this respect it relied upon the evidence of Mr Hedges, who had asserted that the Amplitude and Puriya were contracted to work on an ad hoc basis and were not operating on the days that Mr O’Brien sought entry under the First Notices and Second Notices. Consequently, said the Union, Mr O’Brien had not attempted to enter either of the Vessels and therefore there could not be a dispute as to the safety and practicality of effecting an entry onto those Vessels where entry had not been sought.

[54] First, the reference to ‘[A]ny Odyssey Marine owned or crewed vessel in the Port of Port Hedland’, covers in its scope the Survey Vessels, albeit they were not in operation on the relevant day (being the day when entry had been sought under the First and Second Notices). In my view, Mr O’Brien had proposed entry upon those Vessels as evinced by the Second Notices. The First and Second Notices make no reference to the Vessels being in operation, rather it is whether the vessel is Odyssey ‘owned’ or ‘crewed’. The Union’s contention that it had not sought (or proposed) to enter either the Puriya or Amplitude is simply wrong.

[55] Second, while Mr O’Brien had proposed to enter the Vessels, it does not follow by implication that the rights under Part 3-4 were to be exercised, as referred to in s 521D(1), in a place that was not reasonably accessible to Mr O’Brien (in respect to the Survey Vessels). On the relevant day, the Puriya and Amplitude were located in a place that was reasonably accessible. This was because neither Survey Vessel was in operation. In the absence of evidence to the contrary, it cannot be concluded that there was a dispute as to whether the premises (the Survey Vessels) were reasonably accessible. This was because the evidence points to them having been moored in their allotted places within the Port. In such circumstances, s 521D was not enlivened.

[56] While I am of the view that there is a dispute on foot regarding the operation of s 492 of the Act, I do not consider there to be one under s 521D of the Act.

Location of discussions

[57] The Union summarised that the scope of the current application related to 12 separate premises occupied by Odyssey, and that Odyssey sought a decision by way of arbitration that there is no room or area within 11 of the premises capable of satisfying the criteria set out in s 492(3).

[58] By the time the matter proceeded to hearing, the Union was accepting of the evidence of Mr Hedges regarding the following Vessels:

a) Akuna IV;

b) Yikara;

c) Cloudbreak;

d) Whaleback;

e) Piparn;

f) Odyssey;

g) Indigo;

h) Centaur; and

i) Minotaur.

[59] The dispute therefore had narrowed to whether there was a room or area capable of satisfying the criteria of s 492(3) on the following premises:

a) Amplitude;

b) Puriya;

c) 15 Anderson Street, Port Hedland, WA; and

d) Lot 1431 Mackey Street, Port Hedland, WA.

[60] Unsurprisingly, Odyssey submitted that save for Questions 3 and 5 of the questions set out at paragraph [19], each of Questions 1 to 11 ought to be answered ‘No’. As noted, the Union took no issue with this. Questions 3 and 5, of course, referred to the Survey Vessels.

Is the area or room one in which persons ‘ordinarily take meal or other breaks’ – s 492(3)(a) and is it provided for the purpose of taking meal or other breaks s 492(3)(b)

[61] Odyssey advanced that none of the employees the subject of the First Notices or Second Notices, whether employees of Odyssey, or of its labour hire provider Category5, ordinarily take meal or other breaks on any Vessel (with the exception of the Survey Vessels). Each worker was, according to Odyssey, directed to take those breaks at the Yard or away from the Port if they lived locally. Further, none of the Vessels had an area, provided by Odyssey, for the purpose of taking such breaks.

[62] Mr Hedges provided considerable detail about the typical scopes of work performed by the Pilot Boats, the Lines Boats and Large Lines Boats, and the Survey Vessels. Whilst both parties appear to have agreed that the contentious issue was that concerning the Survey Vessels, for the sake of completeness, all Vessels are traversed.

[63] The work scopes are said to differ significantly between vessel classes, employees and labour hire workers performing work on all Vessels. However, all employees and labour hire workers appear to be required to comply with the direction: subject to operational requirements, all employees are to take breaks at the crib room, or else another offsite location if they are a local employee. 38

Pilot Boats

[64] The Pilot Boats were described as including a wheelhouse and were said to have a floor footprint consisting of 20 square metres. The wheelhouse was the only area on the Vessel that was not exposed to the elements; it houses eight forward-facing individual seats. 39 While there was a fridge, toilet, microwave and kettle onboard the Vessel, these facilities were provided largely for the benefit of the pilot being transferred.40 Mr Hedges stated that the pilots worked extremely erratic hours, having one job for example at 14:00 and another at 23:00. As it was unlikely the pilot would sleep during the intervening period and would not necessarily have had the chance to have breakfast or a meal, the microwave and kettle were provided to allow the pilot to have something to eat.41

[65] Mr Hedges said that during a typical pilot transfer operation, the master controls and navigates the Pilot Boat, and the deckhand is responsible for facilitating the safe transfer of the pilot from the Pilot Boat to the ship. 42 The deckhand is in contact with the ship and the master, and assists the pilot to board the ship, by either a pilot’s ladder (a rope ladder draped over the side of the ship), or by a metal gangway lowered down to the Pilot Boat.43 The deckhand also assists the pilot by transporting the pilot’s Portable Pilotage Unit, which is an independent GPS system with live tides, allowing the pilot to be aware of the under keel clearance at any point in time as the ship progresses through the Port.44

[66] The vast majority of pilot transfers were said to take place at least 30 minutes apart. Odyssey operates the Pilot Boats on a rotating schedule, that is, both are utilised approximately

half of the time. 45 Mr Hedges said it is highly unlikely that the Pilot Boats would have more than 10 engine hours, over any 24-hour period. It would have to be an emergency for a particular Pilot Boat to have to complete back-to-back transfer operations over the designated lunch break.

[67] Subject to the operational requirements of the Pilot Boat, employees take their breaks between 12:00 and 13:00 at the crib room or other local location if they are a local employee. 46 Employees would take their meal or other breaks on board a Pilot Boat only in unforeseeable circumstances (i.e. where it would not be possible for a Pilot Boat to return to its berth, and/or the crew is unable to disembark to take their meal and other break as a result of the Pilot Boat being continually engaged in marine operations).47

The Lines Boats and Large Lines Boats

[68] The Yikara, Cloudbreak, Whaleback, Piparn and Indigo are lines boats (Lines Boats).

The Lines Boats and the Large Lines Boats are licensed through the PPA and are contracted out to the Applicant’s clients as required. At any time, on any particular day, there are typically two crew members on board an operational Lines Boat: one master and one deckhand. 48

[69] The Centaur and Minotaur are slightly larger Lines Boats (Large Lines Boats). 49 At any time, on any particular day, there are typically two crew members on board an operational Large Lines Boat: one master and one deckhand.

[70] Mr Hedges gave evidence that each of the Lines Boats are fully exposed to the elements, and there are no areas on board where employees can be protected from the elements. 50 The Large Lines Boats include a small wheelhouse, but the remainder of the boat is exposed to the elements.51 Regarding the wheelhouse – this is airconditioned but is only large enough to fit one person comfortably.52

[71] Aside from the lack of facilities on board, when one considers the typical day to day operations of the Yikara and Piparn, it is apparent that meal or other breaks would not ordinarily occur on these vessels.

[72] The operations on these Vessels include the running of mooring lines from ship to shore. 53 Usually, said Mr Hedges, there would be between seven and eight of these jobs per day, with each job requiring both Lines Boats, and taking approximately one hour. These jobs are typically split 50/50 between day and night shift. In any given shift, the Lines Boats will complete up to five jobs.54 When the Yikara and Piparn are not completing mooring operations, they are capable of being used as ‘backup’ Lines Boats for general transfer duties, including the transfer of customs officials, shipping agent representatives, and crew transfers.55

[73] Mr Hedges said that the primary work scope for Cloudbreak and Whalebackwas the transfer of, and attendance to, draft surveyors. 56 Mr Hedges explained that these particular jobs were often broken (meaning that the jobs were multi-part; the draft surveyors do multiple ‘laps’ around a given ship during these jobs) and regularly take over three hours to complete.57 During the three hours, the Vessel may only be required for 30 minutes. When the Vessel is not required by the draft surveyor, it returns to its berth.58

[74] A typical draft surveyor operation will see the Lines Boat transfer the surveyor onto the ship, then be released for a period of time (between 15 minutes and several hours). Prior to being released, the surveyor advises the crew when they will be required again.

[75] Upon being released, and depending on the timing of that release, the crew will return, retrieve the surveyor, transit around the ship so the surveyor can take draft marks, then return the surveyor to the ship, and eventually to the shore. 59 These draft marks are then used by the surveyor to confirm how much material (i.e. iron ore) has been loaded onto the ship.60

[76] When the crew have finished their ‘run’ – which takes anywhere from five to 15 minutes
depending on the size of the ship – they return to the Yard and assist the crews of the Large Lines Boats with their duties, complete other duties and take their meal and other breaks.

[77] The normal function of the Large Lines Boats differs to that of the Lines Boats. Mr Hedges gave evidence that the Minotaur did not have a permanent crew for either day or night shift and was rarely operated. 61 The Centaur was the primary operating Large Lines Boat, responsible for the majority of Odyssey’s freight transfer work. The freight was loaded into cargo cages at the Yard, then delivered to the Centaur and transferred to the ship. Mr Hedges said that these operations typically take place in the early hours of the morning,62 with cargo loading operations taking approximately three to four hours per day. Mr Hedges gave evidence that it is often the case that the day shift crew of the Centaur will finish their daily tasks, and will return to their accommodation at approximately 14:00. These employees will then return to the Yard if there is further work for them to do.

[78] Employees that work on board the Lines Boats are subject to the same direction as all other employees of the Applicant, and all Cat5 Employees, that subject to the operational requirements of the Lines Boats, they take their breaks between 12:00 and 13:00 at the Crib Room or other local location if they are a local employee.

The Survey Vessels

[79] With respect to the Survey Vessels, at various periods during the course of a year, they operate 24 hours a day for seven days a week (24/7 operations).

Amplitude

[80] The first Survey Vessel, the Amplitude is capable of performing 24/7 operations. However, it appears that this is not her predominant form of work.

[81] Mr Hedges said that she is the largest of the Vessels, coming in at some 22 metres in length, with the capacity to carry 39 persons on board, 63 albeit she does not have a permanent crew. Mr Hedges stated she is contracted on an ad hoc basis and is regularly engaged for only three or four jobs each week. These jobs are typically freight transfers that the Centaur is not capable of performing. They take anywhere between one and five hours and, similar to freight operations for the Centaur, are usually conducted in the morning.64

[82] According to Mr Hedges, the PPA makes available a crane, capable of loading larger cargo onto the vessel, between 08:00 and 11:00 each day without charge. 65 Mr Hedges said that Odyssey always aims to utilise this window to minimise its costs in running the operation and to ensure that all cargo requiring the use of the crane is completed as the ‘first cab off the rank’.66 Given the average duration of the jobs which the Amplituderegularly performs, it is extremely rare for her to be at sea during the designated lunch break, said Mr Hedges.

[83] Mr Hedges gave evidence that the Amplitude does however have a small galley on the lower deck housing a kitchen, and a small area within the wheelhouse with a couch. 67 Mr Hedges stated if the Amplitude was at sea during these types of operations, the employees take their meal and other break upon returning to the Yard. This, submitted Odyssey, was in accordance with Odyssey’s direction of the same, and provided evidence of Odyssey’s objective purpose.

[84] However, in addition to the regularly contracted jobs, as described above, there are of course the 24/7 operations. Mr Hedges gave evidence that these operations were extremely rare. 68 Expanding upon this, Mr Hedges said that in the past 16 months, the Amplitude had been contracted once to perform such operations. This type of operation required the Amplitude to be at sea for extended periods of time.

[85] Meal and other breaks would self-evidently be taken onboard during those operations. However, Mr Hedges expressed the view that it was both unsafe and impracticable to facilitate a right of entry during these rare operations. Transferring a person from a vessel such as one of the Pilot Boats to a vessel the size of the Amplitude, was entirely different, said Mr Hedges, to transferring a person from a Pilot Boat to a ship. 69 Mr Hedges said that the relative mobility of a vessel such as the Amplitude as compared to a ship makes transferring a person to a vessel of that size, whilst at sea, entirely unsafe.70 Such transfers would, according to Mr Hedges, take place by helicopter, but the Amplitude did not have a helicopter pad and therefore the transfer would not take place.71

[86] Mr Hedges explained that the only time at which an employee would take their meal break on board the Amplitude is where it was not possible, as a result of the contracted requirements, for her to return to her berth throughout the day.

Puriya

[87] The Puriya, the second Survey Vessel, included a wheelhouse with an area of around 16 square metres. 72 The wheelhouse had three seats, said Mr Hedges, one for the master, one for the deckhand, and one for the surveyor (or as otherwise as required).73 The wheelhouse included a small bar fridge, a microwave and a kettle.74 Odyssey submitted that those facilities were not provided for the use of employees for taking meal and other breaks (nor are they ordinarily used for that purpose) during the six months of the year in which the Puriya performed ad hoc operations. However, Odyssey accepted that they were provided for that purpose during the 6 months of the year in which the Puriya performed dredging survey operations.

[88] Mr Hedges gave evidence that Puriya’s workload is split into two six-month periods. 75 During the first six months, the Puriya is engaged in ad hoc work, with two or three jobs per week (each lasting four to five hours).76 These operations commence in the early morning, and include servicing the channel marker lights, deploying and retrieving marine monitoring equipment, and dive operations for the PPA.77

[89] It was said that there was no regular or repeating pattern to the ad hoc operations. The Puriya’s crew, when not engaged in the ad hoc operations, either completed other duties or remained at the Yard, or otherwise off site if they were a local employee. 78

[90] Mr Hedges said that during ad hoc operations, it was extremely rare for the Puriya to be at sea during the designated lunch hour. He continued that the Puriya and her crew are subject to the requirements of the client. When servicing channel marker lights, for example, she transports electricians, who then need to return to shore for their lunch break. 79

[91] Mr Hedges stated that he could not recall a time that the Puriya, during the ad hoc operations, had been at sea past 14:00 on day shift.

[92] As far as the direction to take meal and other breaks was concerned, Mr Hedges confirmed that employees that work on board the Puriyawere subject to the same direction as all other employees of Odyssey and all Cat5 Employees, concerning when and where they are to take their meal and other breaks. If the Puriya was out during, or past, the designated lunch hour, the crew take their lunch break upon returning to shore. It is not safe, nor is it practicable, for a crew of two to take their lunch breaks on board the vessel whilst she is operating, said Mr Hedges. 80

[93] For the other six months of the year, said Mr Hedges, the Puriya is engaged under a PPA contract to survey the Port for the annual dredging program. This results in the Vessel effectively operating 24/7, given the costs associated with the hiring of other vessels (including a dredge), and the need to ensure accuracy. During survey/dredging operations, the Puriya does not stop operating. The crew take their breaks consecutively to ensure continued Vessel operations. When it is time for the shift change, the Puriya returns to her berth, the outgoing crew disembark, and the incoming crew board.

[94] Mr Hedges gave evidence that during the periods in which the Puriya undertakes dredging survey operations on a 24/7 basis, the crew do take their lunch on board the Vessel, and take meal and other breaks consecutively on board the Vessel. 81

Consideration

[95] In Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union and Another (Central Queensland Services), 82 the Full Court of the Federal Court addressed aright of entry dispute which centred on whether an area behind the cab of a dragline was the area where employees in question ordinarily took their meal or other breaks. The company contended that when the Full Bench of the Commission had considered the issue, it had erred in its interpretation of s 492(3).83 Adopting what it submitted was the correct interpretation, the company advanced that the grammatical and ordinary sense of the words ‘the purpose’ in s 492(3)(b) was that the room or area must be provided by the occupier for the single or sole purpose of taking meal or other breaks, rather than for multiple purposes that included taking meal of other breaks.84

[96] The Full Court disagreed with the company’s interpretation of s 492(3). 85 In doing, Tracy and Reeves JJ first traversed the relevant principles on statutory construction, citing paragraphs from the High Court decisions of Project Blue Sky Inc v Australia Broadcasting Authority (Project Blue Sky),86 and Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (Consolidated Media Holdings).87The relevant paragraphs are extracted below:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. 88

This court has stated on many occasions that “the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. 89

Thereafter, Tracey and Reeves JJ considered the statutory text, expressing that there was nothing in the text of the phrase ‘the purpose of taking meal or other breaks’ in s 492(3)(b) which, by the ordinary or grammatical meaning of the words used in it, conveyed any concept of exclusivity. 90 For completeness, the Full Court dealt with the applicant’s contention that the words ‘the purpose’ in s 492(3)(b) required a determination of the occupier’s subjective intentions in providing the room or area. Relevantly, the Full Court observed:

In s 492(3)(b), the word ‘purpose’ is used in the context of setting a default location in the absence of the permit holder and the occupier agreeing on a location. The correlated criterion in s 492(3)(a), mentioned above, is used in the same context. Significantly, that criterion is expressed in terms that plainly require an objective assessment of the past behaviour of the persons identified therein to determine whether they have ordinarily taken meal or other breaks in the room or area in question. 91

[97] Section 492(3)(a) requires that the room or area be one ‘in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks’. 92 As observed in Central Queensland Services, the section requires ‘an objective assessment of the past behaviour of the persons identified therein to determine whether they have ordinarily taken meal or other breaks in the room or area in question’.93

[98] Turning to the term ‘ordinarily’, s 492 does not define the term or otherwise illuminate its meaning. The section does not arbitrarily prescribe how frequently a room or area must be used for meal or other breaks before it can be said that relevant employees ‘ordinarily’ take those breaks for that purpose. Odyssey submitted that neither the Explanatory Memorandum nor the authorities which have considered the operation of s 492(3) since its inclusion in the Act in 2013, had provided substantive guidance on the meaning of the word.

[99] The consideration of a statutory provision starts with the construction of the words of the statute according to their ordinary meaning, having regard to the context and legislative purpose. 94 The word ‘ordinary’ is defined in the Macquarie Dictionary in the following terms:

1. such as is commonly met with; of the usual kind.

2. below the average level of quality; somewhat inferior.

3. customary; normal: for all ordinary purposes…

5. something regular, customary, or usual. 95

[100] Odyssey contended that from these natural meanings, a room or area which is occasionally used for meal or other breaks – even if that occasional use follows some discernible pattern or structure – would not meet the requisite threshold. The word ‘occasional’ relevantly connotes ‘occurring or appearing from time to time, not at regular intervals’. 96 ‘Occasionally’, as defined, means ‘at times; now and then’.97 Both meanings appear focused on the temporal – relating to time.

[101] In support of its construction, Odyssey contended that entry permits under Part 3-4 of the Act confer important rights which significantly erode the common law of occupiers to exclude those to whom they do not wish to grant entry. 98 Odyssey next submitted that the scheme established by Part 3-4 is an encroachment on the right of an occupier to determine who is permitted to enter their premise, therefore its provisions should be construed so that encroachment is no greater than the statute allows (either expressly or by necessary implication).99

[102] Neither submission is uncontroversial. The latter submission of Odyssey embraces the analysis of the Deputy President in Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd, 100 which in turn was adopted by the Full Bench in Construction, Forestry, Mining and Energy Union v Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance.101

[103] However, the Full Court of the Federal Court in Maritime Union of Australia v Fair Work Commission 102 observed that the Commonwealth legislature has long concluded that conferring such powers (right of entry) is necessary in the context of industrial law.103 But, it has in addition sought to strike a balance between common law rights and otherwise untrammelled power.104

[104] Part 3-4 is a statutory framework which seeks to balance the rights of organisations, employees and occupiers. With respect to organisations, it allows officials to hold discussions with potential members and to investigate suspected contraventions of legislation, such as the Act. 105 Representation by the organisation of its members is of course permitted in the workplace.106 Employees have the right to receive, at work, information and representation from officials of organisations.107 The rights of occupiers extend to going about their business without undue inconvenience.108

[105] The pressing issue in this case concerns the two Survey Vessels. The first, the Amplitude, is predominately contracted on an ad hoc basis, being regularly engaged for three to four jobs a week (one to five hours in duration). However, the evidence given showed that she was not only capable of performing 24/7 operations but had done so previously.

[106] The Amplitude houses a small kitchen, and a small area within the wheelhouse with a couch. Mr Hedges’ evidence was that the only time at which an employee would take their meal break on board the Amplitude is where it was not possible, as a result of the contracted requirements, for her to return to her berth throughout the day. Mr Hedges said that he could not recall an occasion when this had occurred other than when the Amplitude was engaged in 24/7 operations, which had occurred once in the last 16 months. Odyssey submitted that on no reasonable view could the facilities on the Amplitude, and its arrangements, lend themselves to being the ‘ordinary’ manner and location at which employees take meal or other breaks. The argument seemingly premised on the 24/7 operations occurring rarely so as not to satisfy ‘occasional’ or ‘ordinary’ use, and the ad hoc operations being of insufficient duration to warrant taking a meal or other break on board in addition to the direction that meals were to be taken at the Yard.

[107] The first limb of s 492(3)(a) requires consideration of whether there is a room or area in which the person or persons ordinarily take a meal or other breaks. The second limb asks whether the room or area has been provided by the occupier for that purpose. There is evidently a room or area on the Amplitude that lends itself to the taking of meal or other breaks. However, whether a person ordinarily takes a meal or other breaks in that room or area is a separate issue. Odyssey contended that because the Amplitude had only had one contract which saw it engaged in 24/7 operations over a period of 16 months, it followed that the room or area on the Amplitude was not ordinarily used for the requisite breaks. I do not agree with this proposition.

[108] There is no stipulation that the room or area must be the same room or area that is utilised over an extended period. No such arbitrary rule exists. What is required is simply that the person or persons ‘ordinarily’ take a meal or other breaks in the room or area.

[109] To interpret the word ‘ordinarily’ by reference to only the temporal, would attribute to it a narrow meaning not contemplated by the legislature. The meaning of the word ‘ordinarily’ is not so limited. While it speaks of ‘something regular’, it in turn also captures the words ‘customary, or usual’, in addition to ‘normal’, ‘commonly met with’ and the ‘usual kind’. Had the legislature wanted to limit the room or area to one in which meals or other breaks were taken by reference only to the number of times such a room or area was used during a period, the language would reflect as much.

[110] It has been observed that s 492 is a practical provision governing what is likely to be an everyday occurrence at work sites. 109 As observed by his Honour in BGC, it forms part of a group of provisions that should be interpreted 'practically and with an eye to common sense' having regard to the context in which it will be applied, so that it can be implemented 'in a clear way on a day-to-day basis at work sites'.110

[111] If the interpretation advanced by Odyssey was adopted, it would potentially give rise to circumstances where a crib or lunch room utilised by persons over a discrete period, to the extent that is where those persons ordinarily take their lunch when working at that site, location or premises, during that period, would not be the ‘default’ room under s 492(3)(a), notwithstanding that the occupier had provided the area for the purpose of taking meals.

[112] It would follow, in the context of the current case, that if a permit holder sought to exercise a right of entry during this period for the purpose of holding discussions, and the permit holder and occupier could not agree on the room or area in which to hold discussions, there would not appear to be a ‘default’ area in which the discussions could be held as contemplated by s 492. Such a circumstance frustrates the operation of s 492 and the objects of Part 3-4, noting of course again that the provision is after all meant to be a ‘practical’ one.

[113] There is an apposite passage in Central Queensland Services that warrants repeating here. At paragraph [6], Jessup J spoke of the applicant’s submission concerning its construction of s 492(3)(b) - the room or area had been provided for the single purpose of taking breaks, noting it was consonant with the purpose and policy of Part 3-4. Part 3-4 was said to be concerned with the balancing of competing interests between registered organisations, permit holders and employees in facilitating entry, and those of occupiers in controlling their premises. The applicant argued that the balance was in part to be achieved by strictly constraining the times at which permit holders could enter premises, their activities on the premises, and the parts of the premises that they could use. The governing principle being that permit holders could not enter or use premises in a way that might interfere with the performance of work. Jessup J expressed the following view:

…while this submission invokes a stream of legislative policy that is apparent in Part 3-4, that policy makes no contribution to the construction of the actual words of s 492(3)(b). To the extent that the subsection deals with the relationship between the uninterrupted performance of work and the activities of a permit holder who has entered the premises in question, it has done so by providing for the interview to be conducted or the discussions to be held in the room or area where at least one of the employees involved ordinarily takes his or her meal or other breaks, being a room or area provided for that purpose. The legislature has also confined the right to hold discussions under s 484 to “mealtimes or other breaks” (s 490(2)), and has prohibited permit holders from intentionally hindering or obstructing any person (s 500). For the Court to introduce, as governing the construction of s 492(3)(b), the principle proposed by the applicants, would, in my view, be to attempt to improve upon the system for which the legislature has provided. I do not see, either expressly or by implication, any attempt in s 492(3)(b) to deal with the subject of interferences in the performance of work.

[114] While I am not so convinced that the principle proposed by the applicants in Central Queensland Services sought to improve upon the system for which the legislature had provided, the applicant’s contention was one which sought to impose a constraint inconsistent with the language and purpose of s 492(3)(b). Such are the circumstances before me now. What Odyssey seeks is a construction of s 492(3) which, for example, when considered in the context of the Amplitude’s 24/7 operations, would result in either there being no ‘default’ room or area pursuant to s 492(3), or limiting the ‘default’ room to the Yard when the Amplitude returns to the dock and the Yard is once again accessible, albeit the workers may not be on break.

[115] Mr Hedges said that the Amplitude is the largest of the Vessels, coming in at some 22 metres in length, with the capacity to carry 39 persons on board. 111 She does not have a permanent crew. However, on board is an area in which employees and other workers can take meals and breaks. I have found that this area is a room or area in which persons ordinarily take meal or other breaks, and is provided for that purpose during the Amplitude’s 24/7 operations. This remains the case even though it is purported that the Amplitude has only engaged in one such operation over a 16 month period. While there has only been one such operation over that period, the evidence supports a finding that, during that type of operation, it is normal or customary for employees and workers to have meals or other breaks in those areas on the Survey Vessel.

[116] However, during ad hoc operations, the employees and workers on the Amplitude return to the Yard to take their meal and other breaks. While in this context the Amplitude continues to have a room or area on board where meals or other breaks could be taken, it cannot be concluded that this is where those same persons normally or ordinarily take their lunch or other breaks during the course of the working day (the first limb of s 492(3)(a) is not satisfied). Further, the area on the Amplitude, is not, in these circumstances, provided for that purpose (therefore the second limb of s 492(3)(b) is not satisfied). It is evident that meals and other breaks are taken at the Yard, which is provided by the occupier for the purpose of taking those breaks.

[117] The Puriya performs dredging survey operations for six months of the year. During those periods, the vessel effectively operates on a 24/7 basis. The crew take their lunch on board the vessel, and take meal and other breaks consecutively on board the vessel. It can be accepted that during these 24/7 operations, the Puriya has an area which satisfies the requirements of ss 492(3)(a) and (b).

[118] However, while the Puriya has an area in which it is customary or normal for employees or workers to take meal or other breaks on board, when the Puriya is performing ad hoc operations, there is no regular or repeating pattern to the operations and jobs may last for only four to five hours – two to three times a week. The Puriya’s crew, when not engaged in ad hoc operations, either complete other duties or remain at the Yard, or otherwise off site, if they are a local employee. 112

[119] Mr Hedges said that during these ad hoc operations, it was extremely rare for the Puriya to be at sea during the designated lunch hour. When servicing channel marker lights, said Mr Hedges, the Puriya transported electricians, who then need to return to shore for their lunch break. 113 According to Mr Hedges, he could not recall a time that the Puriya had, during the ad hoc operations, been at sea past 14:00 on a day shift.

[120] Similar to the Amplitude, the Puriya houses a small bar fridge, microwave and kettle; however, it cannot be concluded that this is where employees and workers normally or ordinarily take their lunch or other breaks during the course of the working day during ad hoc operations (the first limb of s 492(3)(a) is not satisfied). Further, the area on the Amplitude, is not, in these circumstances, provided for that purpose (therefore, the second limb of s 492(3)(b) is not satisfied). Mr Hedges’ evidence supports the conclusion that Odyssey had not provided the facilities on the Puriya for taking meal and other breaks. Instead, the Yard had been provided for that purpose.

[121] To conclude, and as already agreed upon by the parties, the Pilot Boats do not have onboard a room or area where, ordinarily, meal or other breaks are taken, and there are no rooms or areas provided on the Pilot Boats for that purpose. Similarly, the Lines Boats and Larger Lines Boats do not house a room or area onboard where persons ordinarily take meal or other breaks, and there are no rooms or areas provided on the Lines Boats or Larger Lines Boats – provided for that purpose.

Application of s 505 to deal with the dispute

[122] As observed, absent agreement between the parties on the proposed area or room, that area is determined by the operation of s 492(3) of the Act. However, in this case there is a dispute about the operation of s 492(3), and as such s 505 empowers the Commission to deal with the dispute. At [27] of this decision, s 505 is set out in full. However, it is useful to set out how this Part of the Act works and how the Commission discharges its function.

[123] Part 3-4 expressly provides for the Commission to deal with disputes regarding the operation of Part 3-4. The principal purpose or objective of Part 3-4 has been traversed. To reiterate, it is to enable officials of organisations to enter premises in a way which recognises the rights of occupiers of premises, and employers, to go about their business without undue inconvenience.

[124] To achieve the principal purpose above, Part 3-4 is divided into seven Divisions which are intended to give effect to that objective. 114 Parliament recognised that in achieving this objective, there would be disputes about the operation of the Part – that is, how Part 3-4, ‘works’, ‘operates’, ‘acts/actions’ or ‘discharges’ its function.115 In other words, the Commission is empowered to deal with disputes to give effect to Parliament’s principal purpose in Part 3-4 of Act.116

[125] Odyssey submitted that, if it was accepted that during their 24/7 operations that the Survey Vessels were capable of satisfying the requirements of ss 492(3)(a) and (b), which I have concluded they are – then the safety and practicability of effecting an entry onto those premises during meal or other break times remained a live issue. Odyssey submitted that it would be unsafe, and thus both duly inconvenient and unfair to Odyssey – to require discussions onboard the Survey Vessels during 24/7 operations.

[126] Regarding its argument that such imposition would be duly inconvenient, Odyssey sought to rely on s 521D(2)(a) of the Act.

Safety risk

[127] According to Odyssey, effecting entry upon the Survey Vessels would require it to perform vessel-to-vessel transfer whilst at sea in order to transfer the organiser on, and then off, the vessel. Mr Hedges gave evidence that it would be unsafe and impracticable to do so because:

(a) the Survey Vessels are significantly smaller than a ship, to which normal (vessel conducted) sea-to-sea transfers occur. This, submitted Odyssey, results in them being significantly less stable in the water, and being impacted by prevailing weather conditions, resulting in increased mobility within the water. Odyssey submitted that it was not possible for the Survey Vessels to drop anchor and secure themselves properly given the restrictions on anchoring within the port. It would therefore necessitate that the Survey Vessels conduct such a transfer without being adequately (or at all) secured;

(b) the Survey Vessels would not be able to sufficiently coordinate their movements, and would likely result in collision between the vessels during the transfer;

(d) Odyssey’s Pilot Boats (which Mr Hedge opined to be the ‘safest’ Vessel to perform a sea-to-sea transfer of this type) weigh approximately 20 tonnes and, accordingly, are also very mobile within the water column. This would result in two potentially mobile and unstable vessels; and

(e) by contrast, when a Pilot Boat conducts a ship transfer, that transfer is performed in a controlled manner. The Pilot Boat is secured to the (relatively stationary, and much heavier) ship. This provides a stable platform for the pilot to board the ship. It is not possible to secure a Pilot Boat (or any other of the Vessels) to a Survey Vessel in a similar manner. 117

[128] Odyssey submitted that if it were safe to effect vessel-to vessel transfers, Odyssey would use that method to facilitate shift changes, rather than causing a costly break in operations. But, as it was, it was not safe.

The application of s 521(D)(2)(a)

[129] Odyssey submitted that as the Survey Vessels remain at sea during meal and other breaks whilst performing 24/7 operations, they are – at those time – premises ‘that are located in a place that is not reasonably accessible to the permit holder unless the occupier of the premises on which the rights are to be exercised provides transport, or causes it to be provided’. It followed, said Odyssey, that the Survey Vessels attract the operation of s 521D of the Act.

[130] Odyssey observed that s 521D of the Act establishes a mechanism for the making of ‘transport arrangements’ to premises within the meaning of that section, provided certain criteria are met. One of those criteria is that the provision of transport to the premises for the permit holder ‘would not cause the occupier undue inconvenience’. Odyssey submitted that as the owner and operator of the Survey Vessels, it was both an employer and a person who has control of a workplace (and the means of access to and egress from that workplace) for the purposes of ss 19 and 22 of the Occupational Safety and Health Act 1984 (WA) (OSH Act). In order to facilitate the entry, the vessel-to-vessel transfer would, according to Odyssey, require it to risk contravening each of those sections of the OSH Act, exposing Odyssey to criminal prosecution. That risk, said Odyssey, plainly amounted to ‘undue inconvenience’.

[131] However, the Union advanced that Odyssey had sought to extend the scope of the current dispute into the application of s 521D of the Act in relation to the Puriya and Amplitude. This was, according to the Union, outside the scope of the purported dispute and did not have bearing on the answer to the proposed question, namely, whether the there is a room or area capable of satisfying the criteria set out in s 492(3) on the relevant ‘premises’.

[132] In response to this contention, Odyssey argued that the parties to an application define the ambit of the dispute and were not confined to the (dispute as outlined in) originating application. The broad point made was that, notwithstanding the scope of the dispute as initially characterised in the application, it is generally accepted that disputes evolve. As such, it is not only appropriate, said Odyssey, but incumbent to consider the factual background and determine the scope of the dispute in this respect.

[133] In SSX Services Pty Limited v The Australian Workers’ Union (SSX), 118the Full Bench considered the necessity to characterise a dispute so that the jurisdiction of the Commission to deal with such a dispute is properly invoked.

[134] In that case, the dispute had arisen under s 526 of the Act concerning the operation of s 524, which permits the stand down of employees in specific circumstances. The legislative scheme under which the current application is brought is not so removed from that under Part 3-5, to render the decision of the Full Bench in SSX immaterial. Section 505 of the Act empowers the Commission to deal with a dispute and, in doing so, the characterisation of the dispute is a seemingly necessary step to take in dealing with the dispute. In SSX, the Full Bench observed that the characterisation of disputes arises in various contexts under the Act; it stated:

[17] We have set out the relevant legislative provisions above because of their importance to considering the grounds of appeal. Importantly, the right to stand down employees under s.524 arises from the effect of the section itself. The right is not dependent on approval of the Commission. However, to the extent that a dispute arises in relation to the exercise of that right, the Commission is empowered by s.526 to deal with that dispute by arbitration. The Commission is required to take into account fairness between the parties concerned and thereby incorporate an overall discretionary factor into the task of determining a dispute over whether the right to stand down is correctly invoked in the circumstances. The parties are bound by s.527 to comply with an order of the Commission dealing with a dispute. These provisions make it important to correctly identify the subject matter of a dispute the subject of arbitration for the purposes of any such order.

[18] The characterisation of disputes arises in various contexts under the Act, most particularly in relation to disputes arising from the application of awards and agreements. It is necessary to have regard to the nature of a dispute alleged in an originating application and the factual circumstances as they evolve for the purposes of conciliation and arbitration of the dispute. A Full Bench of the Commission’s predecessor expressed the importance of characterising a dispute in this way, albeit in a different statutory context, namely the resolution of disputes arising under certified agreements made under the Workplace Relations Act 1996 (Cth):

“[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. …

…

[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power ‘a court should review the entire factual background to properly characterise the claim and the power sought to be invoked.’

(footnotes omitted)”

[19] In Maritime Union of Australia v Australian Plant Services Pty Ltd, Lacy SDP said:

“Parliament has authorised the Commission to exercise powers under the agreement to settle disputes over the application of the agreement and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with the matter arising under the disputes settling procedure in an agreement, to ascertain the character of the dispute before it in order to determine whether the matter is a dispute over the application of the agreement, and, importantly, the character of the dispute is distinguishable from the order that may be made in settlement of the dispute.”

[20] We consider that the arbitration of the dispute under s.526 (1) and (2) of the Act requires similar characterisation by the Commission for the purposes of any arbitration of such a dispute.

[21] We have set out the full terms of the originating application above. A fair reading of those terms is that the AWU sought to challenge the fundamental basis relied on by the employer for the stand downs - that there was no useful work for the employees at the relevant time. The AWU contended that “the relevant affected employees could have been usefully employed in their normal work as contemplated by s.524(1) of the Act”. The order sought was that SSX not stand down employees “in circumstances where they can be usefully employed”.

[22] As paragraph [51] of the Commissioner’s decision makes clear, the parties did not address the further question of whether the stand down was “because of one of the circumstances set out in paragraphs 524(1) (a), (b) or (c).” The parties accepted in the proceedings before us that this observation from the Commissioner was correct. However the fact that they did not address the issue establishes that this matter was not in dispute. The Commission was not empowered to deal with this question because it did not fall within the dispute that arose in relation to s.524. In proceeding to deal with this matter the Commissioner considered an issue outside the scope of the dispute and exceeded the jurisdiction conferred by s.526. 119

[135] It is not unusual for the scope of dispute to change while it is before the Commission. This can often occur during conciliation as matters are partly resolved or new issues, pertinent to that notified, emerge and become clearer. 120 However, there are some pertinent points to make in this case.

[136] The originating application, to which amendments were permitted under s 586 of the Act, captures the dispute as one concerning a disagreement on the location at which discussions were to take place (for a right of entry under s 484):

6. It is apparent that the Applicant and the Respondent cannot agree on the location at which these discussions are to take place, despite having exchanged correspondence in an attempt to reach agreement.

7. The Applicant’s position is that the lunch room at the office currently located at 15 Anderson St, Port Hedland is the only room or area that meets the criteria prescribed by s 492(3) of the FW Act with respect to the group of employees covered by the First and Second Notice and falling within s 484(a)-(c) of the FW Act, being a room or area:

a. In which those employees ordinarily take their meal and other breaks; and

b. That is provided by the Applicant for the purpose of taking meal and other breaks.

8. The Respondent’s position appears to be that each of the Vessels is a relevant room or area meeting the criteria prescribed by s 492(3) of the FW Act with respect to that group of employees.

[137] The Statement of Agreed Facts included an attached ‘Questions’ to be arbitrated. Those questions are set out at paragraph [19] of this decision. All concerned the dispute about whether, on this occasion, there was a room or area on board the Vessels capable of satisfying the criteria in s 492(3) of the Act, and whether there was a location other than the crib room at the Yard that was capable of being a ‘default’ meeting location (question 12).

[138] In its submissions of 22 April 2020, Odyssey sought to amend the twelfth question so that it would read:

[139] The Union, while not conceding the Commission had jurisdiction to entertain Odyssey’s application, advanced that a question should be inserted prior to the first question, and thereafter the questions should be labelled 2-12 accordingly. This, said the Union, would more accurately reflect the dispute between the parties. That first question was:

Are the parties unable to agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions?

[140] The question asked by the Union evidently tied in with the issue of jurisdiction, as observed earlier.

[141] In its submissions of 22 April 2020, Odyssey titled a section ‘Question 12 – Vessel-to-Vessel transfers to and from Survey Vessels are unsafe’. Question 12 had of course been amended to incorporate whether there were ‘any other grounds on which interviews or discussions under s 484 of the FW Act ought not be held in the room or area addressed in that question’.

[142] In making such an amendment, Odyssey has, in my view, attempted to extend the dispute to one not only about s 492 of the Act, but in addition s 521D. It has done so by its amendment to Question 12, its reliance on the phrase ‘any other grounds’ within that question, and the inclusion of some submissions regarding the operation of s 521D within its Outline. The decision of the Full Bench in SSX emphasises the importance of correctly identifying the subject matter of a dispute the subject of arbitration for the purposes of any such order. It informs us that it is necessary to have regard to the nature of a dispute alleged in an originating application and the factual circumstances as they evolve for the purposes of conciliation and arbitration of the dispute.

[143] Odyssey confronts a significant difficulty in extending the scope of the dispute to one that encompasses s 521D in addition to the operation of s 492. First, because the conclusion has been reached that there is no dispute regarding the operation of s 521D of the Act – in this respect I refer to paragraphs [52] to [56] of this decision. Second, the question asked by Odyssey, that is the amended question 12, and the submissions that followed at paragraphs 37 to 39 of its Outline of 22 April 2020, do not, in my view, thereafter allow the application before me to be one that is correctly characterised as a dispute about the operation of s 521D, in addition to s 492.

[144] The Commission is not confined to considering only the originating application (or dispute notification document) when characterising the nature of the dispute. The entire factual background is relevant, including the matters such as the submissions advanced. However, in this case, questions were arrived at with a view to setting the parameters or defining the scope of the dispute. All questions, with the exception of the amended question 12, referenced s 492(3) of the Act. The inclusion of the amended question 12 evidently did not. However, its inclusion of the phrase ‘any other grounds’ was of such broad import, it could not be said on any objective level that this phrase could culminate in the dispute being characterised as one about the operation of s 521D. The notion is quixotic, and while Odyssey has submitted that the 24/7 operations of the Survey Vessels attract the operation of s 521D, that is vastly different to there being a dispute about the operation of the same section.

Orders sought and disposition of the application

[145] Odyssey sought a decision and orders as follows:

1. A decision (by way of arbitration under ss 505, 595 and 598) that there is no room or area on board any of the Vessels:

a) In which one of more of the persons who may be interviewed or participate in the proposed discussions contemplated by the First and/or Second Notice ordinarily take meal or other breaks; and

b) That is provided by the Applicant for the purpose of taking meal or other breaks.

2. An order (by way of arbitration under ss 505, 595 and 598) that the Respondent, when exercising a right of entry under the First and/or Second Notice, must conduct interviews or hold discussions in the lunch room currently located at 15 Anderson St, Port Hedland.

3. Any other order the Commission sees fit.

[146] In Austral Bricks, the Deputy President observed that, unlike other disputes that might be brought under s 505 which will likely involve disputes, for example, about whether something that was done was ‘reasonable’, or whether a thing or place was ‘reasonably available’ or ‘reasonably accessible’, or whether the provision would cause ‘undue inconvenience’, such concepts did not expressly arise for determination in a dispute about the application of s 492. The Deputy President at paragraph [43] stated:

It seems to me therefore that in determining a dispute of this kind by arbitration and the making of an order, such orders will necessarily involve regulating the conduct of the permit holder or the occupier or both, in the future in relation to determining the location and the conduct of discussions with the prescribed class of employees. Such an order should be aimed at giving effect to the object of Part 3-4, the apparent purpose of s 492, including to encourage parties to reach agreement as to how entry by permit holders to workplaces is facilitated, and take into account fairness between the parties concerned in the dispute. 121 (italics my emphasis)

[147] Once it is recognised that the order (see paragraph 147) sought by Odyssey pertains only to the First Notices and Second Notices, it is apparent that such order would be of no utility as the time has passed concerning when entry was sought. Therefore, I decline to grant such an order.

[148] Odyssey submitted that the safety risks regarding a vessel to vessel transfer had bearing upon the question of fairness between the parties. Taking those considerations into account under s 505(4), the Commission ought to make an order under s 505(2)(e) directing that those discussions be held by mobile telephone between the permit holder located at the Yard, and the relevant employees located onboard the Survey Vessel.

[149] Odyssey next submitted that fairness in the context of the operation of s 505(4) falls for determination in light of the objects of the Act and more specifically those of Part 3-4. 122 It has also been applied in a manner that encompasses questions of ‘reasonableness’,123 and, critically for present purposes, whether facilitating a proposed entry would be ‘significantly onerous’ for the occupier.124

[150] In its Outline of Submissions of 22 April 2020, Odyssey suggested that the answer to amended question 12 should be such that:

… Facilitating face-to-face discussions onboard the Survey Vessels during 24/7 operations imposes undue inconvenience on Odyssey, and is unfair to Odyssey having regard to the safety risks arising from vessel-to-vessel transfers. The parties should facilitate those discussions by Odyssey allowing the permit holder entry to the Yard, and facilitating the relevant employees onboard the vessel to hold discussions with the permit holder via mobile telephone from the Yard.

[151] It appears that Odyssey is requesting that the Commission make both an order concerning the holding of face to face discussions onboard the Survey Vessels when operating 24/7, in addition to expressing an opinion about the same. The basis for doing so – it imposes an undue inconvenience on Odyssey and is unfair to Odyssey having regard to the safety risks arising from vessel-to-vessel transfers.

[152] The Commission is empowered to deal with a dispute under s 505 and may deal with the dispute by arbitration or by making a recommendation or expressing an opinion. Critical to the exercise of such power is the necessity of a dispute. A dispute has not been raised under s 521D of the Act. Further, I am of the view that a consideration of ‘fairness’ in the context of the application before me does not encompass the interpolation of what is essentially a dispute about the application of s 521D into a dispute about s 492(3). The sections are distinct, and as such, are enlivened in markedly different circumstances. As there is no dispute over the application or operation of s 521D of the Act, neither the order sought or expression of opinion, proposed in [145] and [150] of this decision, will be made.

[153] After the parties had been provided with the opportunity to make their closing submissions, Odyssey’s representatives drew attention to the decision of Construction, Forestry, Maritime, Mining and Energy Union v Cape Preston Port Company Pty Ltd. 125 The Union was copied to the correspondence from the representative, but provided no response and did not request permission to provide one. I have read the decision which considered both ss 491 and 521D of the Act. In light of the findings made and conclusion reached, I have formed the view it has no bearing on this matter.

Conclusion

[154] The Deputy President in Austral Bricks observed that s 492 does not operate so as to lock in a default venue in perpetuity. 126 The occasion for seeking an agreement about the location to hold discussions arises on each occasion that a permit holder proposes to enter under s 484. The conclusion reached in this decision does not sit contrary to that legislative imperative and it has not locked in a default venue in perpetuity.

[155] However, with regard to the operation of s 492 of the Act, it is the case that, with the exception of the Survey Vessels, none of the remaining Vessels contain a room or area capable of satisfying s 492(3). Whilst the Survey Vessels are capable of doing so, that capability is confined to those periods in which they are engaged in 24/7 operations, which on this occasion they were not so engaged.

[156] It follows that:

a) with the exception of questions three and five, the remainder of questions one to eleven are answered ‘No’;

b) questions three and five are answered ‘yes, but only during periods in which the vessel is engaged in 24/7 operations’; and

c) for the reasons given, I do not propose to answer question twelve, noting that at arriving at my decision the notion of ‘fairness’ as referred to in s 505(4) was duly considered.

DEPUTY PRESIDENT

Appearances:

Mr A Pollock of counsel, Mr S Rogers of Mills Oakley for the Applicant; and
Mr B Wilson for the Respondent.

Hearing details:

2020:
Perth (by video);
June 11.

Printed by authority of the Commonwealth Government Printer

1 Statement of Agreed Facts [8].

2 Ibid [11].

3 Witness Statement of Mr Chris Hedges, [9] (’Hedges’).

4 Ibid [10].

5 Statement of Agreed Facts [8]; AE418827.

6 Odyssey Marine Pty Ltd [2020] FWCA 5101.

7 Hedges, (n 3) [11].

8 Ibid [12].

9 Ibid [16].

10 Ibid [17].

11 Ibid.

12 Witness Statement of Mr Joel O’Brien, Annexure MUA6.

13 Ibid.

14 Statement of Agreed Facts,[8].

15 Fair Work Act 2009 (Cth) s 480.

16 Ibid s 595.

17 Re Aero-Care Flight Support Pty Limited [2015] FWC 1783, [14].

18 Construction, Forestry, Mining, and Energy Union v Austral Bricks (Vic) Pty Ltd[2014] FWC 5407, [40] (‘Austral Bricks’).

19 Ibid.

20 Ibid [37].

21 Ibid.

22 Ibid [37] – [38].

23 BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining & Energy Union (2019) 285 IR 43 (‘BGC’).

24 Ibid 48-49 [21].

25 Ibid 49 [22].

26 Ibid 47 [14].

27 Ibid.

28 Ibid 47 [15].

29 Ibid 48 [16]–[18].

30 Ibid 48 [19].

31 Ibid 48 [20].

32 (2012) 201 FCR 297.

33 Ibid 310 - 311 [50] – [52] (Flick J).

34 Ibid 310 [51] (Flick J).

35 BGC (n 22) [20].

36 Ibid [15].

37 SSX Services Pty Limited v The Australian Workers’ Union (2015) 250 IR 377, 383–384 [18].

38 Hedges (n 2) [20], [33], [49], [56].

39 Ibid [30].

40 Ibid [31].

41 Ibid.

42 Ibid [26].

43 Ibid.

44 Ibid.

45 Ibid [27].

46 Ibid [33].

47 Ibid.

48 Ibid [34].

49 Ibid [35].

50 Ibid [36].

51 Ibid.

52 Ibid [55].

53 Ibid [39].

54 Ibid [40].

55 Ibid [41].

56 Ibid [43].

57 Ibid.

58 Ibid.

59 Ibid [45].

60 Ibid.

61 Ibid [51].

62 Ibid [53].

63 Ibid [59].

64 Ibid [60].

65 Ibid [62].

66 Ibid.

67 Ibid [66].

68 Ibid [64].

69 Ibid [65].

70 Ibid.

71 Ibid.

72 Ibid [75].

73 Ibid.

74 Ibid.

75 Ibid [70].

76 Ibid.

77 Ibid.

78 Ibid [71].

79 Ibid [72].

80 Ibid [74].

81 Ibid [77].

82 (2017) 249 FCR 154.

83 Ibid 160 [24].

84 Ibid 160 [23].

85 Ibid 164 [37] (Tracey and Reeves JJ).

86 (1998) 194 CLR 355.

87 (2012) 250 CLR 503.

88 Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) quoting Taylor v Public Service Board (NSW) (1976) 137 CLR 208, 213 (Barwick CJ).

89 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46 [47].

90 Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union and Another (2017) 249 FCR 154, 161 [30] (Tracey and Reeves JJ).

91 Ibid 162 [33].

92 Ibid 160 [26] quoting Fair Work Amendment Bill 2013 (Cth) s 140.

93 Ibid 162 [33].

94 Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74, 87 [70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 35–36 [14] (French CJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Dawson, Toohey, Gummow JJ and Brennan CJ)

95 Macquarie Dictionary (5 ed, 2009) ‘ordinary’.

96 Macquarie Dictionary (5 ed, 2009) ‘occasional’ (def 1).

97 Macquarie Dictionary (5 ed, 2009) ‘occasionally’.

98 (2015) 230 FCR 15, 20-21 [14].

99 Construction, Forestry, Mining and Energy Union v Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance (2016) 254 IR 164, 177 [18] citing with approval the observations of Gostencnik DP in Austral Bricks [26].

100 [2014] FWC 5407.

101 Construction, Forestry, Mining and Energy Union v Central Queensland Services Pty Ltd T/A BHP Billiton

Mitsubishi Alliance (2016) 254 IR 164, 177 [18].

102 (2015) 230 FCR 15.

103 Ibid 20 [14].

104 Ibid.

105 Fair Work Act 2009 (Cth) s 480.

106 Ibid.

107 Ibid.

108 Ibid.

109 BGC (n 20) 48 [18].

110 Ibid, citing Ramsay v Menso (2018) 280 IR 121, [39] (Dowsett and Collier JJ) applying Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470, [15].

111 Hedges (n 3) [59].

112 Ibid [71].

113 Ibid [72].

114 Maritime Union of Australia v JKC Australia LNG Pty Ltd[2016] FWC 201, 11 [76].

115 Ibid.

116 Ibid.

117 Hedges (n 3) [65], [79]-[88].

118 (2015) 250 IR 377.

119 Ibid 383–385 [17]–[22].

120 Independent Education Union of Australia v The Peninsula School T/A Peninsula Grammar School[2020] FWC 5180, 7 [22].

121 Austral Bricks (n 18) [43].

122 Australasian Meat Industry Employees Union v Somerville Retail Services[2010] FWA 6737, [13].

123 Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture[2010] FWA 2341, [132].

124 Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd (2012) 221 IR 268, 275 [26] - [27].

125 [2020] FWC 4502.

126 Austral Bricks (n 18) [56].