Construction, Forestry, Maritime, Mining and Energy Union v Flinders Ports Pty Ltd T/A Flinders Ports
[2023] FWC 2380
•27 NOVEMBER 2023
| [2023] FWC 2380 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union
v
Flinders Ports Pty Ltd T/A Flinders Ports
(C2023/4446)
| COMMISSIONER PLATT | ADELAIDE, 27 NOVEMBER 2023 |
Dispute about matters arising under the enterprise agreement – interpretation of Agreement clauses
On 27 July 2023, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or the Applicant) made an application for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act) concerning the application of Clauses 5.7 and 5.8 of Schedule 2 of the Flinders Ports and Flinders Ports Management Services Enterprise Agreement, 2022-2026 (the Agreement) with the employer, Flinders Ports Pty Ltd T/A Flinders Ports (the Respondent).
Background
There is no dispute that the Applicant is covered by the Agreement and that the subject matter of the dispute falls within the parameters defined in Clause 3.4.1 of the Agreement.
The matter was unable to be resolved by conciliation conducted on 3 August 2023 and the parties agreed to determining the dispute by arbitration.
On 3 August 2023, the parties were directed to file submissions, witness statements, a statement of agreed facts and material to be relied upon. This material was compiled into a digital hearing book and distributed to the parties prior to the hearing.
The Hearing was conducted in person in Adelaide on 12 September 2023.
The Applicant was represented by Mr Luke Edmonds, the Respondent was represented by Mr Brad Popple, permission having been granted pursuant to s.596(2)(a).
Agreed Facts
An agreed statement of facts was submitted by the parties on 8 September 2023 as detailed below:
A. Flinders Ports
1.Flinders Ports is owned by the Flinders Port Holdings Pty Ltd (FPH). Flinders Ports is the largest port operator, and the primary Port authority, in South Australia, operating seven ports across the State.
2.As the port operator, Flinders Ports carries out various functions to facilitate both the operation of the Port, and its longer term maintenance and development, including:
(a)maintaining berths within the Port to ensure they meet the needs of shipping clients;
(b)port infrastructure improvement and development;
(c)the pilotage of vessels within Port waters, including navigating vessels to their allocated berth;
(d)mooring vessels when they arrive alongside their allocated berth in the Port, and removing mooring lines from the wharf when vessels are due to depart;
(e)conducting inspections and surveys of marine vessels once inside the Port; and
(f)managing and delivering aspects of the transshipment operations of iron- ore in the Upper Spencer Gulf.
3.Flinders Ports also operates the Commonwealth Government authorised Vessel Traffic Service (VTS) for the Port pursuant to an Instrument of Authority issued by the Australian Maritime Safety Authority. Flinders Ports’ VTS operates 24 hours a day 365 days of the year and is responsible for managing vessel traffic and ensuring the safe navigation of vessels within Port Adelaide and regional ports.
4. The functions of VTS include:
(a)monitoring the movements of participating ships in the VTS areas;
(b)communicating with vessel masters and pilots to provide information to assist in the navigation of ships within the port;
(c)continual monitoring of the Adelaide VTS VHF radio channels;
(d)responding to requests for information on matters such as a ship traffic;
(e)responding to unsafe situations and marine incidents; and
(f)co-ordinating after hours labour allocation duties.
B. The Port
5.The Port is located approximately 14 kilometres northwest of the city of Adelaide, and is a major domestic and international shipping facility, servicing approximately 1219 vessels each year, with an average throughput 25,731,000 tonnes of bulk cargo, 30,000 containers and 60,000 of vehicles.
6.The Port is comprised of a total of 19 berths where one (or for some berths, more than one) vessel can be moored at any given time. This includes 7 berths in the Outer Harbor (which is the furthest point of the Port), 2 operational berths at Osborne located in the middle of the harbour, and 10 berths within the Inner Harbour.
7.The longest distance between berths is approximately 8.4km “as the crow flies”, between Outer Harbor Berth 8 (the northern-most berth at the Port) and Inner Harbour Berth 18 (the southern-most berth). All berths are connected by public roads to allow travel between them.
8.The berth assigned to a vessel being serviced at the Port depends on the type of commodity carried by the vessel and other features of the vessel including its draught (the depth of the vessel hull in the water), beam (the hull width at the widest point) and length overall; along with tidal movements.
9.The berths located at the Outer Harbor services vessels carrying the following cargo types:
(a)Outer Harbor 1 services vessels carrying general cargo, and is a common user berth;
(b)Outer Harbor 2 services vessels carrying motor vehicles, and also has a passenger terminal for passenger ships;
(c)Outer Harbor 3 services vessels carrying motor vehicles and passenger cruise ships;
(d)Outer Harbor 4 services petroleum tankers, and also vessels carrying motor vehicles and passenger cruise ships;
(e)Outer Harbor 6 and Outer Harbor 7 both service container vessels; and
(f)Outer Harbor 8 services bulk grain and seed vessels.
10. The Inner Harbour berths service vessels carrying the following cargo types:
(a)Inner Harbour 18, Inner Harbour 19 and Inner Harbour 20 service vessels carrying fertilisers, scrap metal, textiles and some other types of cargo depending on the particular berth;
(b)Inner Harbour 25 services stores and lay-up vessels (such as barges moored at the berth) and cement storage.
(c)Inner Harbour 27 services vessels carrying bulk grains and seeds;
(d)Inner Harbour 29 services vessels carrying mineral sands, livestock, sulphur, fertilisers and scrap metal;
(e)Inner Harbour H services vessels carrying cement and cement clinker;
(f)Inner Harbour K services vessels carrying limestone;
(g)Inner Harbour M services vessels carrying petroleum products; and
(h)Inner Harbour N services vessels carrying bulk liquid.
11.Osborne Berth 1 services vessels carrying acid, break bulk, general cargos, grains and cements. Osborne Berth 4 is not in use.
12.The berths vary in length from as little as 56 metres long, to 660 metres long, with longer berths being able to accommodate multiple vessels being moored at one time.
13.In addition to operating as the arrival and departure point for passenger cruise ships, the Passenger Terminal at Outer Harbor 2 serves as a central amenities hub for Marine Services employees. The Terminal, can be accessed by vehicle and has secure car parking, and provides employees with access to the MST downstairs amenities area containing a fully serviced airconditioned kitchen, lounge suites, sleeping facilities, televisions, and computers which can be utilised by employees when they are not required to be working at a berth.
C. Work performed by mooring employees
14.This dispute relates to Shipping Relief Team Adelaide (SRTA) employees employed by Flinders Ports on a Permanent Part Time (PPT) basis, who perform work in conjunction with the Marine Services Team (MST), and some casual SRTA employees. At a high level, the work performed by the MST and SRTA employees involves the mooring of vessels arriving at a berth for loading and unloading, and the unmooring of vessels for departure, along with work incidental to these functions.
On average, it takes approximately 10 to 30 minutes for the mooring lines to be untied from the wharf and retrieved by the ship’s crew.
15.Between 1 January 2023 and 30 June 2023, the MST facilitated the mooring of approximately 1200 ships movements (arrivals and departures) within the Port. Of these 1200 moorings, approximately 90% had the assistance of SRTA employees.
D. Employees who perform mooring work
16.Flinders Ports employs a total of 28 MST employees, who are all employed on a full time basis, and a total of 8 SRTA employees who are employed on a PPT basis. Flinders Ports also has 6 casual employees who form part of the SRTA.
17. The Flinders Ports & Flinders Ports Manager Services Enterprise Agreement 2022 – 2026 (EA) applies to the MST and SRTA employees. The EA was approved by the Fair Work Commission on 18 January 2023 and took effect on 25 January 2023.
18.The EA also applies to other cohorts of employees of Flinders Ports, and also employees of a related entity, Flinders Port Management Services Pty Ltd. The EA contains common terms and conditions of employment that apply to all employees covered, and these are supplemented by various schedules which contain other specific terms and conditions of employment that apply to individual cohorts only. Schedule 2 of the EA applies to MST and SRTA employees.
19. The MST employees are split into 4 teams (A, B, C and D). Each team has 7 MST employees, consisting of a team leader, an assistant team leader, a Master V, MED II, a deckhand and three other employees.
20.The MST employees work a 4 day on, 4 day off 12 hour shift roster to provide 24 hour per day, 7 day per week coverage. On average, 6 members of an MST are required to facilitate the mooring of a vessel to its berth, or the departure of a vessel.
E. Work allocation for PPT SRTA employees
21.PPT SRTA employees work according to a rolling on-call roster of six days on and two days off. A day of on-call duty is a 24 hour period commencing at 5pm and ending at 5pm the following day. Rolling means that the first day rostered “on” for each employee is staggered. A PPT SRTA Employee is shown as rostered “off” on the on-call roster on days where they finish duty at 5pm at the end of their cycle, and “on”, as indicated by a number 1 to 6 on days where they commence duty at 5pm at the start of the cycle.
22.Throughout their 6 rostered days on, PPT SRTA employees are only required to attend for work if they are allocated to work a vessel, or if they are required to perform deckhand duties (if trained), VTS relief duties (if trained) or general duties (when required).
23.A copy of the Daily Shipping Roster is emailed to the MST team leader and to the PPT SRTA employees rostered on-call once completed each day.
24.The Daily Shipping Roster is also recorded as a message on a phone line which employees can call each day after 4:00pm to find out what vessels they have been allocated within the coming 24 hours.
25. Where an PPT SRTA employee is allocated a vessel under the Daily Shipping Roster, this is known as a call-out.
26.The call-out payment is paid to the SRTA employee even if they do not work the entirety of the minimum call out period. In practical terms, this means SRTA employees can receive 8 hours’ pay (4 hours at double time) for servicing a single vessel, which could take as little has half an hour (for vessel arrivals) or 10 minutes (for vessel departures).
27.Sometimes, unplanned changes to vessel movements, which are managed by VTS, occur. This can be caused by a variety of factors such as weather events, vessel mechanical problems, stevedore loading disruptions and pilotage disruptions. In these circumstances, VTS will notify the on duty labour allocator and the relevant MST team leader on duty to notify of the change, and also alert PPT SRTA employees who are affected by the change to advise them of the details and whether there is a change to the time of the call-out or if it is cancelled altogether.
28. Where there is a change to a vessel movement which impacts the time of the PPT SRTA call-out, this can result in employees receiving additional cancellation payments under cl.5.7 of schedule 2 of the EA.
F. Requirements of SRTA employees on a call-out
29.As set out above, each berth within the Port is accessible by public roads. Each berth has a car park where PPT SRTA employees will park their car, before walking to the work area. The car park is generally around a 1 to 2 minute walk from the berth.
30.There is only one known record of an SRTA employee being subject to a disciplinary outcome in relation to reporting for duty. This employee was issued a written reminder and directions after repeatedly failing to report for duty.
31. Occasionally, a vessel is ready for mooring slightly earlier than the call-out time.
If this is the case, the MST team leader and vessel pilot will discuss whether the mooring or unmooring can start early. The Team Leader will then ask all employees allocated to the job whether they would like to commence work before the call-out time to get the job done and go home early. If any employee does not agree, the job will start at the rostered time. This practice does not involve any variation to the rostered time for duty, it is something adopted to allow employees to get their work done as early as possible.
32.Employees will have a toolbox meeting with other members of the team who are servicing the particular vessel to discuss its requirements.
33.The only personal protective equipment MST or SRTA employees are required to wear when performing work are a high-visibility shirt and pants, steel-capped boots, gloves, safety glasses, PFD (Personal flotation device) and a helmet. Employees are supplied and retain all of this equipment and get dressed for work at home. Employees typically attend work already dressed in their shirt, pants and boots. They will then carry their gloves, glasses, PFD, and helmet to the pre- start meeting and put those items on as part of the call-out, which takes less than a minute.
34.In circumstances where an SRTA employee has arrived early at the relevant berth, or otherwise at or close to the Port when they are notified that the commencement of their call-out has been deferred, they will have the option to go home (depending on how far back the call-out has been pushed and how close they live to the Port), or otherwise make use of the Passenger Terminal at Outer Harbor 2 downstairs MST amenities area lounge, computers, television and kitchen. On occasions employees may leave the Port and access town centre facilities such as the beach or other public facilities (including gyms, swimming pools etc).
G. Guaranteed minimum wage arrangements
35. PPT SRTA employees are paid on the basis of a “guaranteed minimum wage” of $52,000 per annum, paid fortnightly. In short, this means that employees are paid according to the terms of the EA, save that even in fortnights where they do not perform sufficient work to earn $2,000, they will be paid this amount regardless. However, in these circumstances the employee’s earnings above the minimum guarantee amount in the subsequent 2 fortnights will be offset against the shortfall.
36.For example, if in the first fortnight of a month the PPT STRA employee works hours equivalent to $1600, they will receive a top up of $400 to meet the GMW. In the subsequent fortnight where the PPT STRA employee works hours equivalent to payment of $2,400, $400 will be deducted to account for the top up payment in the first fortnight. However, in practical terms, SRTA employee’s almost always earn well over the minimum guarantee The average gross earnings for the 2022-2023 financial for 7 of the 8 employees is $123,351.21 with the highest earner being $145,035.35. The other employee has not completed a full year so statistics are not available.
H. 12 June 2022 Variation
37.On 12 June 2022, PPT SRTA Employees Mr Andrew Edgar, Ms Amy Thomas and Mr David Leahy were on call as part of their six-day roster cycle.
38.On 11 June 2022, Mr Edgar, Ms Thomas and Mr Leahy were rostered on the Daily Shipping Roster for duty at Inner Harbour 27 on 12 June 2022 at 11:45am to support MST employees Mr Nigel Fiegert – Team Leader, Mr Cobban and Mr Burns in servicing the vessel STH OSLO.
39.Mr Edgar, Ms Thomas and Mr Leahy were also rostered for an earlier callout at 5:45am that day, and a subsequent call-out at 3:45pm, on that day.
40.Mr Leahy completed the 5:35am call out and then left the Port and returned home prior to the 11:45am call out.
41.At 11:22am, Mr Edgar, Ms Thomas and Mr Leahy were notified by VTS that the vessel STH OSLO had advised them of a delay and the new call-out time would commence at 1:45pm.
42.At 11:27am, Mr Leahy drove through the security gate at 27 Berth. At 11:29am Ms Thomas passed through the security gate. Mr Edgar did not pass through the security gate at 27 Berth in relation to that call-out.
43.At the time of this notification, Mr Fiegert was working on general duties at another berth in the Outer Harbour as there was still approximately 20 minutes until the vessels original mooring time. Mr Fiegert did not have any contact with Ms Thomas or Mr Leahy about the call-out before they left the Berth.
44. Mr Leahy remained at the Port until he was required to return to 27 Berth for the
1:45pm call-out. The new call-out time for vessel STH OSLO meant that the rostered call-out at 3:45pm would be included in the same-call out timeframe. Mr Edgar, Ms Thomas and Mr Leahy received one call-out payment for servicing both vessels.
45.On 20 June 2022, Mr Leahy and Mr Brougham spoke about Mr Leahy’s pay entitlements associated with the 12 June 2023 job delay. Mr Brougham told Mr Leahy that he was not entitled to a cancellation payment.
46.[Redacted as irrelevant to this dispute.]
I. 28 January 2023 Call-out
47.On 28 January 2023, PPT SRTA employee Mr Andrew Edgar was on call as part of his six-day roster cycle.
48.On 27 January 2023, Mr Edgar was rostered on the Daily Shipping Roster for 28 January 2023 to report for duty at:
(a)3:45 am at Inner Harbour 20 berth to service the vessel YANGTZE FLOURISH (being its departure from berth) on a minimum four hour call out period; and
(b)7:30am at Inner Harbour 20 berth to service a second vessel named CL FUZHOU HE (being its arrival at berth).
49.The last mooring line tied to the wharf was completed at 8:24am (less than an hour after the commencement of the call-out). Continuous time was paid to the employee from 7:45am.
Jurisdiction
There was no dispute that I have jurisdiction to arbitrate this matter in accordance with Clause 3.4 of the Agreement – Grievance and Dispute Settling Procedure (reproduced below):
3.4 Grievance and Dispute Settling Procedure
3.4.1. In the event of any matter, breach and / or dispute arising under this Agreement, and / or in relation to the interpretation or application of this Agreement or the National Employment Standard, or any matter arising in the course of employment, the following procedure will apply.
Step 1: The matter will in the first instance be discussed between the Employee/s and the immediate Supervisor involved. If the matter remains unresolved;
Step 2: It will be referred for discussion between the Union delegate or employee representative and the local supervisor. If the matter remains unresolved;
Step 3: It will be referred for discussion between the appropriate State Union Branch Official or employee representative and the General Manager of the relevant Department and General Manager Human Resources. If the matter remains unresolved;
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 may refer the dispute to the Fair Work Commission (FWC) for conciliation and / or arbitration pursuant to Section 739 and Section 595 of the Act.
3.4.2 It is the intention of the parties that in fulfilment of this Clause, FWC shall exercise any of its powers and functions including but not limited to those normally associated with conciliation and private arbitration and Section 739(4). Accordingly, the parties expressly confer upon FWC, a full range of powers and functions necessary to resolve the matter or matters in dispute or in breach.
3.4.3 For the avoidance of doubt, the parties consent to the FWC exercising any powers or functions reasonably incidental to the conciliation and/or arbitration of the dispute.
3.4.4 The parties bound/covered by this Agreement agree that any decision or determination of FWC under this Clause shall be binding and final by virtue of this Clause but note that a decision of a single member of FWC can be appealed to the Full Bench of FWC.
3.4.5 By agreement between the parties bound/covered by this Agreement any or all of the above steps may be bypassed in the interest of speedy resolution of the dispute and / or matter. In any event, if the dispute and/ matter has not been resolved within 10 days of the conclusion of Step 1 either party may initiate Step 4.
3.4.6 Work will continue to proceed under the conditions and arrangements prevailing before the dispute arose. Where those conditions cannot be restored, then work will continue in accordance with the reasonable and lawful direction of the Employer and in accordance with the Employees skills, competence, training and safe work practices.
3.4.7 Employees and their representatives who are directly involved in the matter will be released from normal duties without loss of pay to assist in case preparation and to attend any proceedings.
3.4.8 The parties to this dispute and their representatives must act in good faith in relation to the resolution of the dispute and the above dispute resolution procedure.
Issues in Dispute
The Applicant identified the issues in dispute in writing.
The first question relates to Clause 5.7 of Schedule 2 of the Agreement and seeks clarity on when is an employee taken to have “reported for duty”?
The second question refers to Clause 5.8 of Schedule 2 of the Agreement which provides for the payment of multiple call outs in one day in certain circumstances. The Question is if an employee is notified of a requirement to service an additional vessel during a call out but work on servicing that additional vessel does not commence until after the time for that initial call out has elapsed, is that employee entitled to be paid for a new call out?
Evidence
I received into evidence the witness statements of Mr Duignan,[1] Mr Lay[2] and Mr Brougham.[3] None of the witnesses were required to be present for cross examination.
The contents of the digital hearing book and the agreed facts were received into evidence.
The Hearing comprised of submissions by the Applicant and the Respondent and a discussion.
Agreement Interpretation Principles
The determination of this matter involves interpreting the meaning of Clauses 5.7 and 5.8 of Schedule 2 of the Agreement. This process has been undertaken in accordance with the principles as summarised by Justice Flick in Veolia Transport Sydney Pty Ltd v Mifsud.[4]
“At a very general level it was thus common ground that the words used in an agreement are to be given their “natural and ordinary meaning”: cf. City of Wanneroo v Holmes (1989) 30 IR 362 at 378 per French J (as his Honour then was). See also: BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124 at [20]– [21], 153 IR 397 at 401–402 per Pullin J (Wheeler and Roberts-Smith JJ agreeing). Any other approach, it has been said, “would lead to industrial anarchy”: Norwest Beef Industries Limited v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 per Olney J. “If the words of an award have an unambiguous meaning, then that is the meaning that should be ascribed to them and there is no need for the court to consider the expressed or supposed intention of the drafters of the award”: Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers [2012] FCA 1010 at [50] per Cowdroy J. See: Boncardo, “Enterprise Agreements and Contracts: Convergent and Divergent Approaches To Interpretation” (2011) 18 JCULR 56at 60–63.”
I am cognisant that the Commission’s function in interpreting an Agreement provision does not include redrafting what some might perceive as a poor bargain.
Relevant Agreement provisions
The following provision of the Agreement are relevant to the questions before me:
“5.3 Call Outs Before 0730 Hours – Week Days – Minimum Payment
If any casual or shipping relief team employee is required to present for duty before 0730 hours the following arrangements will apply:
Time required to present for duty
Rate of pay Minimum payment Between midnight and on or
before 0330 hours (Saturday,
Sundays and public holidays
ExceptedDouble time for
the whole call outFour hours After 0330 and on or before 0600 Double time for all hours worked up to 0730 and then ordinary
time until work has been completedFour hours After 0600 Double time for all hours worked up to 0730 and then ordinary
time until work has been completedThree hours
5.4 Call Outs On Saturdays – Minimum Payment
Except as provided in this clause, if any casual or shipping relief team employee is required to present for duty on any Saturday will be paid overtime at the rate of double time with a minimum payment at the appropriate job above of four hours for each call out during the said hours in which the employee is so required to present. Multiple vessel services may be carried out within each call out. See 5.8 for interpretation of when a new call out applies.
Employees are considered to be on duty during the entire minimum call out payment
period until dismissed.5.5 Call Outs On A Sunday/Public Holiday – Minimum Payment
A casual or shipping relief team employee who is required to present for duty on any Sunday will be paid overtime at the rate of double time and one half with minimum payments at the appropriate job above for each call out on which the employee is so required to present for four hours at the rate of double time and one half. Multiple vessel services may be carried out within each call out. See 5.8 for interpretation of when a new call out applies.
Employees are considered to be on duty during the entire minimum call out payment
period until dismissed.”
Clause 5.7 of Schedule 2 of the Agreement reads as follows:
“On the Job Cancellations
If any casual or shipping relief team employee is rostered to present for duty at any time and is not notified of a variation to the rostered time of commencement prior to reporting for duty the employee will be paid the full minimum call out.”
Clause 5.8 of Schedule 2 of the Agreement reads as follows:
“Arrangements for Payment of Multiple Call Outs in One Day
Casual or shipping relief team employees engaged for shipping related duties (mooring, deckhand, launch masters or other services provided to vessels) will be engaged to work a call out at either a 3 or 4 hour minimum payment at the appropriate rate and penalty rate depending on the day and time of commencement of the work.
Where an employee is engaged in their first call out of the day and that call out includes servicing of multiple vessel calls, the employee is paid one call out for the minimum period and all vessels within that period are to be worked during that call out.
Where the employee works beyond the 3 or 4 hour minimum period to complete work on a vessel call, they will be paid continuous time at the end of the call out in order to finish the work at the appropriate penalty rate.
Once the first call out of the day is completed, a new call out will apply for any other vessels that the employee is engaged to work for the day and the process above is applied again.”
Consideration
The first question to be determined is what does report for duty mean in the context of Clause 5.7 of Schedule 2 of the Agreement.
From the evidence presented, the following process occurs before work in respect of a vessel commences:
· Employees travel to site.
· Prior to departing, each employee is dressed appropriately for work including relevant PPE.
· Upon arrival at the site employees swipe at the car park entrance.
· Employees then congregate at the relevant wharf.
· A Team Leader attends and takes an attendance record about 15 minutes prior to the commencement of work.
· Work commences.
The Applicant’s contentions as to the time a person ‘reports for duty’ were somewhat fluid. The Applicant submitted that this could occur from as early as the time the employee left their home bound for work, or the time that they swiped into the car park (regardless of the proximity of that time to the vessel movement time or when they were on the wharf). The Applicant also submitted that ‘reporting for duty’ was analogous with ‘attending for duty’. I accept the Applicant’s submission that an employee would ‘report for duty’ at a time prior to the ‘commencement of work’.
The Respondent contends that the process of reporting for duty occurs when the employee attends a pre-start meeting conducted by their Team Leader who marks their name off a roll.[5]
A review of the plain and ordinary meaning of Clause 5.7 in the factual circumstances reveals that the relevant employees are rostered to ‘present for duty’ at a time prior to the vessel movement. In the event that a roster change is made after the employee ‘reports for duty’, a minimum call out is required to be paid.
The critical element of the clause is the meaning of the term ‘reports for duty’. I have been advised there has not been any previous consideration of the meaning of that phrase. The term ‘report’ as a verb means “to present oneself formally as having arrived at a particular place or as ready to do something”. [6] This definition appears appropriate for the interpretation of the Agreement provision in the context of this dispute. Applying that definition, the intention of the Clause is capable of being understood on a plain reading of the text. In my view the time of reporting for duty is the time that the employee presents (either face to face or where specifically by other means) to their Team Leader as being ready to commence work.
The reporting process is not enlivened by the act of departing on a journey to work or the arrival at a car park as neither of those circumstances involves presenting oneself as having arrived.
I turn now to the second question.
Schedule 2, Clause 5.8 provides as follows (emphasis added):
Arrangements for Payment of Multiple Call Outs in One Day
Casual or shipping relief team employees engaged for shipping related duties (mooring, deckhand, launch masters or other services provided to vessels) will be engaged to work a call out at either a 3 or 4 hour minimum payment at the appropriate rate and penalty rate depending on the day and time of commencement of the work.
Where an employee is engaged in their first call out of the day and that call out includes servicing of multiple vessel calls, the employee is paid one call out for the minimum period and all vessels within that period are to be worked during that call out.
Where the employee works beyond the 3 or 4 hour minimum period to complete work on a vessel call, they will be paid continuous time at the end of the call out in order to finish the work at the appropriate penalty rate.
Once the first call out of the day is completed, a new call out will apply for any other vessels that the employee is engaged to work for the day and the process above is applied again.
The Applicant contends it is not open to the employer to notify employees of impending work and hold them in readiness in order to avoid the payment of a further call out payment.
The Respondent contends that employees are considered to be on duty for the entire duration of a minimum call-out payment period, unless they are dismissed. Where an affected employee works beyond 4 hours, they are entitled to payment for the time continuously worked following the conclusion of the minimum period.
Clause 5.8 of Schedule 2 applies to casual or shipping relief team employees engaged for shipping related duties.
Clauses 5.3, 5.4 and 5.5 of Schedule 2 of the Agreement detail the minimum payment for each call out. Depending on the time and day of the week, the minimum payment is either 3 or 4 hours. Importantly with respect to callouts under Clause 5.4 or 5.5, the Agreement expressly states that ‘Employees are considered to be on duty during the entire minimum call out payment period until dismissed’.
The second paragraph of Clause 5.8 permits multiple vessel calls may be worked in respect the first call out of the day. There is no express requirement that the employee be told in advance of the requirement to work on multiple vessels, in addition this position can be inferred by the use of the words ‘and that call out includes servicing multiple vessel calls’. In some cases, work may finish well within the minimum period and the employer may chose to require the employee to undertake other work. This approach appears to be endorsed by the inclusion of the term ‘Employees are considered to be on duty during the entire minimum call out payment period until dismissed’ in Clauses 5.4 and 5.5.
The third paragraph of Clause 5.7 provides that if an employee works beyond the relevant minimum period, they will be paid until work is finished at the appropriate penalty rate.
It follows that if an employee is directed to work on another vessel prior to the first call out ending, the first call out will continue. There does not appear to be any barrier to the Employer continuing to hold employees in anticipation of additional work being allocated. It is not until the completion of the first call out that work on any other vessels would automatically trigger a second call out.
In my view, the first call out is completed when the work on the first call out concludes and the minimum period has also expired. In such a case, the allocation of further work would trigger a new callout as result of the fourth paragraph of Clause 5.7 of Schedule 2 of the Agreement.
It is also necessary to determine at what point the employees is engaged to ‘work’ on the other vessel. It is apparent from the submissions that the Applicant views this narrower than the Respondent who submits that preparatory work is included and refers me to Clause 38.8 of Schedule 2 of the Agreement which provides for employees to carry out ‘other functions which may not be shipping related.’
The Agreement when read as a whole permits the employer to make use of its employees to carry out tasks in preparation of the scheduled work provided it is within their skill competence and training. In my view these preparatory tasks fall with the meaning of the term ‘work on the vessel’.
To answer question 2, provided the employee has not concluded their first call out (having regard to the matters discussed above which may include working on another vessel, being held over or undertaking preparatory tasks where told in advance or during the first call out) that employee will not be entitled to be paid for a new call out.
The two questions having been answered, this concludes the Commission’s consideration of the matter.
COMMISSIONER
Appearances:
Mr Edmonds, L for the Applicant
Mr Popple, B for the Respondent
Hearing details:
12 September 2023
[1] Exhibit A1.
[2] Original Statement Exhibit A3 and Reply Statement Exhibit A3.
[3] Exhibit R1.
[4] [2012] FCA 1472 at [16]–[17].
[5] PN522.
[6] Oxford Languages (online at 27 November 2023) ‘report’ (def 2).
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