Construction, Forestry, Maritime, Mining and Energy Union v Australian Offshore Solutions Pty Ltd T/A AOS
[2023] FWC 732
•28 MARCH 2023
| [2023] FWC 732 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union
v
Australian Offshore Solutions Pty Ltd T/A AOS
(C2022/3482)
| DEPUTY PRESIDENT BINET | PERTH, 28 MARCH 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 14 June 2022 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application (Application) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC). The Application sought that the FWC deal with a dispute between the CFMMEU and Australian Offshore Solutions Pty Ltd trading as AOS (AOS) in accordance with the dispute resolution procedure contained in Clause 10 of the AOS Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2021 (Agreement).
AOS engages employees who are covered by the Agreement to perform work on various vessels including the Skandi Hercules. The Agreement provides for different rates of pay for employees depending on the nature of the work the vessel performs. The parties are in dispute as to the appropriate rates of pay for the work performed by employees of AOS on the Skandi Hercules.
On 29 June 2022 and 25 August 2022 the parties participated in a conciliation, but the issues in dispute could not be resolved.
Directions for the filing of materials in advance of a hearing were issued to the parties on 26 August 2022 (Directions). The Application was listed for hearing in Perth on 3 November 2022 (Hearing).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
AOS sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to AOS to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing Mr Luke Edmonds a solicitor employed by the CFMMEU appeared on behalf of the CFMMEU and Mr Ronan Boothman of Corrs Chambers Westgarth (Mr Boothman) appeared on behalf of AOS.
Evidence
In advance of the Hearing the CFMMEU filed a witness statement of Mr George Gakis (Mr Gakis) setting out his evidence in chief.[2]
Mr Gakis is the Assistant Branch Secretary of the Western Australian Branch of the Maritime Union Division of the CFMMEU. He has responsibility within the CFMMEU for industrial relations matters involving employees covered by the Agreement. Mr Gakis was not cross examined at the Hearing.
In accordance with the Directions AOS filed a witness statement of Mr Daniel John Sweetman (Mr Sweetman) setting out his evidence in chief.[3]
Mr Sweetman is Managing Direction of AOS. Mr Sweetman was not cross examined at the Hearing.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties which was admitted at the Hearing and marked as an exhibit (DCB).
Following the Hearing Orders to Produce were sought by and granted to the CFMMEU on 17 November 2022 in PR74802 and PR748027, on 28 November 2022 in PR748366 and on 1 December 2022 in PR748457.
Submissions in relation to the information produced pursuant to the Orders to Produce was filed by the CFMMEU on 1 February 2023 and by AOS on 8 February 2023.
Final written submissions were filed by the CFMMEU on 17 February 2023 and by AOS on 24 February 2023.
In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
AOS provide a range of offshore services, including ship management, crewing, offshore catering and rig moving.
The Agreement commenced operation on 19 April 2021 and covers employees of AOS employed in the classifications of Integrated Ratings, Chief Integrated Ratings, Chief Cook, Cook, Chief Steward and Steward (Employees).
The Employees are, or are eligible to be, members of the Maritime Union of Australia Division of the CFMMEU.[4]
The CFMMEU is named as a party to the Agreement and is covered by the Agreement.[5]
Chevron Australia Pty Ltd (Chevron) has commissioned the Gorgon Stage 2 Project (Project). The Project will expand the subsea gathering networking in the Gorgon and Jansz-Io fields. The Project involves a new drilling campaign, the installation of additional subsea manifolds to accommodate the new wells and infield flowlines and umbilicals to tie into the existing subsea infrastructure.[6]
In December 2021, DOF were engaged by TechnipFMC to provide a ‘pre-commissioning support vessel’ for the Project to undertake pre-commissioning activities, including leak testing of subsea spools, valve manipulation via remotely operated underwater vehicles (ROV), testing of subsea control systems, and downline activities in support of commissioning.[7]
DOF own a fleet of vessels comprising subsea vessels, anchor handling tug supply vessels and platform supply vessels.[8]
In or around November 2021 AOS were engaged by DOF to provide ad hoc marine manning services to supplement DOF’s crews on a vessel owned by DOF called the Skandi Hercules. The Skandi Hercules was engaged to perform work for the Gorgon Stage 2 Project from 30 December 2021 until 31 March 2022.[9]
The Skandi Hercules is a DP2 vessel designed and equipped to perform anchor handling tug support and can provide anchor handling, towage, carriage of cargo, underwater inspection, seabed clearance and ROV operations. ‘DP2’ refers to dynamic positioning with double redundancy. Dynamic positioning keeps a vessel in position whilst it undertakes work. Double redundancy means that if there is a failure there is another part of the system that can take over.[10]
The Skandi Hercules was engaged on the Project to undertake the following activities:[11]
a.Leak testing of subsea spools.
b.Valve manipulation via ROVs.
c.Testing of subsea control systems.
d.Downline activities in support of commissioning.
Mr Sweetman says that DOF provided limited detail of the type of work that the Skandi Hercules would be engaged in, just the date the crew would be required and that the applicable pay rate would be that for a ‘Support Vessel’.[12]
Mr Gakis says that he was told by employees on board the Skandi Hercules during the period the relevant period:[13]
a.The Skandi Hercules was engaged in the pre commissioning stage of the project installing new subsea equipment including new flowlines and control infrastructure in preparation for the commissioning stage of the project.
b.The installation work involved the use of a crane.
c.The crane was used several times a day to lift construction equipment on and off the Skandi Hercules.
The Agreement provides for different rates of pay for employees depending on the nature of the work the vessel they are working on is engaged to perform. The parties are in dispute as to the appropriate rates of pay for the work performed by employees of AOS on the Skandi Hercules.
The rates of pay for each type of work/vessel are set out in the Schedules to the Agreement and are expressed in terms of a percentage of the Aggregate Salary.
AOS have classified the vessel as a ‘Support Vessel’ (107%) as defined in the Agreement.[14]
The MUA have disputed this classification and maintain that the vessel is a ‘Specialist Vessel’ (117%) due to its involvement in new subsea installations and utility of a crane, as per the Agreement.[15]
A ‘Support Vessel’ is defined in clause 3.1 of the Agreement as:
“… a Vessel designed and/or equipped to perform anchor handling tug support that is engaged in or in association with offshore oil and gas operations and is capable of providing any or all related services such as anchor handling, towage, carriage of cargo, underwater inspection, seabed clearance, ROV operations, pipe reel operations, etc.”
A ‘Specialist Vessel’ is defined in clause 3.1 of the Agreement as:
“… a Vessel engaged on a specialist task for a certain period, that is, free span corrections on new pipelines, new subsea installations using a crane or saturation diving from a DP2 Vessel; or any of the following Vessels:
• Self-propelled and/or self-propelled semi-submersible accommodation Vessels;
• Pipe laying Vessel performing pipe laying;
• DP2 or DP3 dive support Vessel performing saturation diving;
• Rock dumping Vessel performing rock dumping; or
• Self-propelled cable laying Vessel performing cable laying (not including a seismic Vessel)
unless otherwise classified under this Agreement or otherwise agreed between the Employer and the Union.”
AOS concede that the Employees undertook work consistent with the Skandi Hercules being a ‘specialist vessel’ on the following occasions during the period in dispute:[16]
a.On 4 February 2022 from 01:21 until 18:08 when the Employees installed electrical flying leads.
b.On 7 February 2022 from 20:19 until 06:13 on 8 February 2022.
On what it describes as a discretionary basis AOS remunerated Employees at the higher Specialist Vessel rate of 117% for the work which was performed on 4 February 2022 because Employees were engaged in this task for more than 12 hours but did not renumerate them at the higher rate for the work performed on 7 to 8 February 2023 on the grounds that the work was performed for less than 12 hours. [17]
It is not disputed that the CFMMEU complied with the provisions of the dispute resolution procedure found at clause 10 of the Agreement before filing the Application.
Consideration
The power of the FWC to deal with disputes is set out in section 595 of the FW Act. Section 595 provides that the FWC may only deal with a dispute if it is expressly authorised to do so under, or in accordance with, a provision of the FW Act.
The Application was made pursuant to section 739 of the FW Act.
Section 739 of the FW Act allows the FWC to deal with a dispute about an agreement if the agreement includes a term containing a dispute resolution procedure.
The Agreement contains a dispute resolution procedure of the nature contemplated by section 739 at clause 10. Clause 10 provides as follows:
“10.1 When any industrial dispute arises, including about a matter arising under this Agreement, the NES or any other matter pertaining to the employment relationship, this clause sets out the procedure to resolve the dispute.
Step 1: Where a matter arises when the Employee(s) are on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and the Master. Where a matter arises when the Employee(s) are not on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and the Employer's nominated representative. If the matter remains unresolved:
Step 2: The matter will be referred for discussion between the Employee, the Employee's Union delegate or other nominated representative and the Master and/or the Employer. If the matter remains unresolved:
Step 3: The matter will be referred for discussion between the appropriate Senior Union Official or other nominated representative and the Employer's Human Resources or Industrial Relations Manager. If the matter remains unresolved or if Steps 1-3 are not resolved within 7 days of the .initiation of Step 1:
Step 4: In the event that the preceding steps have failed to resolve the matter and/or dispute, any person bound/covered by this Agreement or nominated representative may refer the dispute to the FWC for conciliation and/or arbitration pursuant to Section 739 and Section 595 of the Fair Work Act.
10.2 Where the matter remains unresolved, the FWC may deal with the dispute in two stages:
(a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then:(i) Arbitrate the dispute; and
(ii) Make a determination that is binding on both of the parties.
10.3 While the parties to the dispute are trying to resolve the dispute using the procedures in this clause:
(a) An Employee must continue to perform his or her work as he or she would normally, unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(c) An Employee must comply with a direction given by the Employer to perform other available work at the same workplace, or at another workplace, unless:(i) The work is not safe; or
(ii) Applicable occupational health and safety legislation would not permit the work performed.
10.4 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this clause, but note that a decision of a single member of the FWC can be appealed to a Full Bench of the FWC.
10.5 An Employee who is party to the dispute or the Employer may appoint another person, organisation or association to accompany and/or represent them for the purposes of the procedures in this clause.
10.6 Employees who are involved in the dispute during their off swing or off duty time are not entitled to any additional payments. Employees who are involved in the dispute whilst on duty, can only take time off with pay with the approval of the Master and for up to two hours per shift. Employees who are required as a witness in an arbitration will have access to on board teleconferencing facilities, where such facilities are available and working. Employees will not be transported from the vessel to any meetings to participate, unless directed by the FWC.”
The FWC may deal with a dispute only on application by a party to the dispute.[18] The CFMMEU is named as a party to the Agreement and is covered by the Agreement.[19]
There is no dispute, and I am satisfied, that the issues in dispute between the parties fall within the scope of clause 10 of the Agreement.
There is no dispute[20] and I am satisfied that the CFMMEU has complied with the procedural steps contained in clause 10 of the 2020 Agreement.
I am satisfied that the CFMMEU has standing to make the Application and that I have the jurisdiction to determine the dispute.
In dealing with the dispute the FWC can not exercise powers limited by the term.[21] If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. The FWC must not make a decision that is inconsistent with the FW Act or the Agreement.[22]
When arbitrating a dispute under the dispute settlement procedure the FWC is not exercising judicial power, but a power of private arbitration.[23] As a private arbitrator the FWC is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.[24]
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd[25] the Full Federal Court said at [70] to [71] that the powers and functions of the FWC identified in sections 577, 578, 590, 593, 595, 677 and 678 of the FW Act are available to the FWC when conducting a private arbitration.
Relevantly sections 577 and 578 of the FW Act provide as follows:
“s.577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.”
“s.578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; …”
The parties are in dispute as to the appropriate rates of pay for the work performed by employees of AOS on the Skandi Hercules.
AOS have classified the vessel as a Support Vessel (107%) as defined in the Agreement.[26] The MUA have disputed this classification and maintain that the vessel is a Specialist Vessel (117%) due to its involvement in new subsea installations and the utilisation of a crane.[27]
The remuneration for work performed on these various types of vessels is particularised in Schedules 1, 2 and 8 of the Agreement.
Relevantly in relation to ‘Specialist Vessels’ Schedule 8 provides that:
“8.3 Application of Schedule
a) A Vessel that is a Specialist Vessel will be classified under this Schedule 8 for mobilisation and demobilisation voyages, periods of weather, down time etc.
b) That is, a Specialist Vessel shall be classified under this Schedule 8 from the time that it commences its mobilisation voyage until it completes its demobilisation voyage and/or completes the specialist task and is either Laid Up or commences a different work scope.
c) Twenty-eight days' written notice of such changed work scope shall be given to the Union, provided that this notice period may be shortened or waived by agreement between the Employer and the Union.”
The Full Bench, in Princess Linen Services Pty Ltd v United Workers’ Union[28] at [15] and [16] of its decision, recently confirmed the principles of interpretation of enterprise agreements as follows:
“The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene as follows (citations omitted):
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”
The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).”
It is justifiable to read the Agreements to give effect to their evident purpose, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. A Court or Tribunal should not adopt a narrow or pedantic approach to the interpretation of enterprise agreements.[29]
For the purposes of the Agreement a ‘Specialist Vessel’ is a vessel engaged for a period of time in specialist task of:
a.free span corrections on new pipelines;
b.new subsea installations using a crane; or
c.saturation diving from a DP2 Vessel.
and which is not otherwise classified under the Agreement or whose classification has been otherwise agreed between AOS and the CFMMEU.
Provided the relevant vessel is not otherwise classified under the Agreement or its classification otherwise agreed between AOS and the CFMMEU the following types of vessels are also ‘Specialist Vessels’ for the purposes of the Agreement.:
a.Self-propelled and/or self-propelled semi-submersible accommodation vessel;
b.pipe laying vessel performing pipe laying;
c.DP2 or DP3 dive support vessel performing saturation diving;
d.rock dumping vessel performing rock dumping; or
e.self-propelled cable laying Vessel performing cable laying (not including a seismic Vessel)
The parties agree that the Skandi Hercules is not:
a.Self-propelled and/or self-propelled semi-submersible accommodation vessel;
b.pipe laying vessel performing pipe laying;
c.DP2 or DP3 dive support vessel performing saturation diving;
d.rock dumping vessel performing rock dumping; or
e.self-propelled cable laying vessel performing cable laying (not including a seismic Vessel)
The parties agree that no agreement was reached between AOS and CFMMEU as to the classification of the Skandi Hercules during the relevant period.
The CFMMEU identify the ‘specialist task’ being performed by the Skandi Hercules as new subsea installations using a crane namely the installation of new flowlines and control infrastructure using a crane.
AOS submit that during the relevant period the Skandi Hercules was ‘otherwise classified under the Agreement’ as a Support Vessel because:
a.the Skandi Hercules is vessel designed and equipped to perform support work.
b.the contract under which the Skandi Hercules was engaged specifically called for a support vessel and that was what DOF supplied.
AOS concedes that during the relevant period the Employees performed work involving a specialist task for short periods of time.[30] However AOS submit that this does not of itself warrant the reclassification of the Skandi Hercules as a Specialist Vessel. AOS submit that must be so because it must determine the applicable rates of pay for the work its Employees are to perform prior to the work commencing to provide cost certainty for AOS and its clients.
AOS say that the parties clearly turned their minds to this fact when drafting the Agreement because the objects of the Agreement set out in clause 5 which state:
“This Agreement represents a commitment between the Employer and the Employees to
operate their Vessels to a high level of professionalism in a viable and competitive manner ensuring a high level of safety and customer service whilst ensuring that all Employees are provided with rewarding and satisfying careers.”
Even with the greatest will I can not see how the language of clause 5 can modify the expressly defined meaning given to ‘Specialist Vessel’ in clause 3 so that the nature of the work eventually performed by the vessel becomes immaterial and the classification is determined solely be reference to how AOS quotes for the work in its commercial contracts with its clients.
Had the parties intended that the vessels be classified by reference to what rate AOS agrees with its clients then the definition in clause 3 could have prescribed that.
Interpreting the decision with a practical bent of mind in light of the working conditions in the industry provides an alternate interpretation of the Agreement not posed by either party which allows clause 8.3 to make industrial sense. Specialist Vessel is defined in clause 3 as follows:
“Specialist Vessel’ means a Vessel engaged on a specialist task for a certain period, that is, free span corrections on new pipelines, new subsea installations using a crane or saturation diving from a DP2 Vessel; or any of the following Vessels:
• Self-propelled and/or self-propelled semi-submersible accommodation Vessels;
• Pipe laying Vessel performing pipe laying;
• DP2 or DP3 dive support Vessel performing saturation diving;
• Rock dumping Vessel performing rock dumping; or
• Self-propelled cable laying Vessel performing cable laying (not including a seismic Vessel)unless otherwise classified under this Agreement or otherwise agreed between the Employer and the Union.”
It would appear that the definition of Specialist Vessel contemplates two different scenarios:
a.Vessels which are designed, built and predominately used for the duration of their deployment for specialist tasks. These types of vessels are expressly listed in the definition of Specialist Vessel namely:
• Self-propelled and/or self-propelled semi-submersible accommodation Vessels;
• Pipe laying Vessel performing pipe laying;
• DP2 or DP3 dive support Vessel performing saturation diving;
• Rock dumping Vessel performing rock dumping; or
• Self-propelled cable laying Vessel performing cable laying (not including a seismic Vessel)(Purpose Built Specialist Vessels)
b.Other types of vessels which are utilised for a discrete period time to perform a specialist task (Discrete Task Specialist Vessels)
The parties have agreed in the Agreement that both scenarios will attract a premium rate of pay.
Clause 8.3 contemplates a Vessel being classified as Specialist Vessel for the duration of its mobilisation. Without expressly stating so it would appear that clause 8.3 deals exclusively with vessels designed, built and predominately used for specialist tasks i.e. Purpose Built Specialist Vessels. Rarely would such vessels perform non specialist work. Employees are renumerated at the higher rate for the duration of the vessel’s deployment unless the scope of work to be performed by the vessel changes from the purpose for which the vessel was designed. In which case the employer must provide the union representing affected employees a specified period of notice before changing the rate of pay Employees recieve.
Clause 8.3 could not sensibly apply to Discrete Task Specialist Vessels because:
a.it may not be apparent at the time the vessel is mobilised that the vessel might be utilised for a specialist task; and
b.the vessel may only be utilised to perform a specialist task for a tiny portion of the period for which the vessel is deployed.
Applying a practical bent of mind and with consideration of industrial realities it would appear the parties contemplated that Employees engaged on non Purpose Built Specialist Vessels would be paid at the Specialist Vessel rate of pay only for the period of time in which the vessel was engaged in the specialist tasks of free span corrections on new pipelines, new subsea installations using a crane or saturation diving from a DP2 Vessel on Discrete Task Specialist Vessels.
Such an interpretation makes industrial sense. Without such an interpretation AOS could avoid the premium associated with the performance of specialist tasks by simply agreeing with its client to deploy its Employees onto non Purpose Built Specialist Vessels and directing the Employees to perform specialist tasks for the duration of the deployment. Without such an interpretation Employees engaged on non Purpose Built Specialist Vessels which perform only an hour of specialist work during the period of mobilisation of the vessel would be paid at the higher Specialist Vessel rate without having to perform the work the higher rate of pay is intended to reward atleast until the notice period expired.
Consistent with this interpretation AOS remunerated Employees at the higher Specialist Vessel rate of 117% for the work which was performed on 4 February 2022. AOS did not do so for the work performed on 7 to 8 February 2022 because it was performed for a period of less than 12 hours. AOS do not identify any provision of the Agreement either express or implied that might require a minimum period of performance of specialist tasks of 12 hours to trigger eligibility to the higher Specialist Vessel rate of 117%. The higher Specialist Vessel rate of 117% should be paid for the duration of the performance of the specialist task whether the duration is less than or more than 12 hours.
The specialist tasks which attract the higher Specialist Vessel rate of 117% are:
a.free span corrections on new pipelines;
b.new subsea installations using a crane; or
c.saturation diving from a DP2 Vessel.
There is insufficient detailed evidence of the actual work which was performed during the period in question to determine whether specialist tasks were performed during the period in dispute other than those periods identified by AOS.
The CFMMEU submit that the task ‘new subsea installations using a crane’ includes the inspection maintenance and repair of subsea installations during pre-commissioning and that the Skandi Hercules was engaged in this task for the duration of the period it was deployed. In support of this submission the CFMMEU rely on the following statement contained in a report that was prepared for regulatory acceptance by the National Offshore Petroleum Safety and Environment Management Authority (NOPSEMA) in accordance with the requirements of the Commonwealth Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act) and the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (OPGGS(E)R) which states:
“Inspection, maintenance, and repair activities may occur at any time once the infrastructure is successfully installed, including during the suspension phase (if required) before operations commence.”
In my view the extract relied on by the CFMMEU suggests that inspection, maintenance and repair occurs after successful installation and therefore is not a task of the installation.
On the evidence currently before me it would appear that specialist tasks which should have attracted the higher Specialist Vessel rate of 117% but for which Employees were not correctly renumerated were performed only on 7 and 8 February 2022.
DEPUTY PRESIDENT
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 31-62.
[3] Ibid 70-72.
[4] Ibid 31.
[5] AOS Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2021 [2021] FWCA 1964.
[6] DCB (n 2) 34, 43, 44.
[7] Ibid 70, 31.
[8] Ibid 65.
[9] Ibid 70.
[10] Ibid 71.
[11] Ibid.
[12] Ibid 70.
[13] Ibid 32.
[14] Ibid 73.
[15] Ibid.
[16] Ibid 72.
[17] Ibid 72, Submissions filed on 8 February2023 by AOS in relation to the information produced pursuant to Orders to Produce issued on 17 November 2022 in PR74802 and PR748027, on 28 November 2022 in PR748366 and on 1 December 2022 in PR748457
[18] Ibid; Fair Work Act 2009 (Cth) (FW Act) s.739(6).
[19] AOS Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement (n 5).
[20] Ibid cl 10.
[21] FW Act (n 18) S.739(3).
[22] Ibid S.739(5).
[23] Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [38]; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 [75] to [79]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].
[24] CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU (n 23) at [19]-[24]; AMWU v ALS Industrial Australia (n 23).
[25] [2015] FCAFC 123; 235 FCR 305.
[26] DCB (n 2) 73.
[27] Ibid.
[28] [2021] FWCFB 1903.
[29] See Kucks v CSR Ltd (1996) 66 IR 182, 184; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005 at [114].
[30] DCB (n 2) 68.
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