Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd

[2022] FedCFamC2G 699

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)

Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd [2022] FedCFamC2G 699

File number(s):

SYG 2115 of 2020

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

26 August 2022

Catchwords:

INDUSTRIAL LAW – coverage of industrial instruments  – whether when employee was engaged first as a general purpose hand and then as a master on vessels operated by the employer the employee’s employment was governed by employee collective agreements made under the Workplace Relations Act 1996 (Cth) – if not covered by such employee collective agreements whether the employer and employee were covered by the Marine Tourism and Charter Vessels Award 2010 (MTC Award) – if not covered by the MTC Award whether the employer and employee were covered by the Ports, Harbours and Enclosed Water Vessels Award 2010 (PHE Award) – PHE Award applied in relation to work on vessels engaged on regularly scheduled ferry passenger services – whether employee was paid less than he would have been entitled to have been paid assuming PHE Award applied to work on vessels engaged on regularly scheduled ferry passenger services.

Legislation:

Fair Work Act 2009 (Cth) ss 12, 45, 172, 186

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 1, Sch 3, Items, 2, 3, 5, 9, 28, Sch 5, Items 2, 4

Workplace Relations Act 1996 (Cth) ss 4(1), 327, 333(b), 340(2), 344, 346D(2), 346E(1), 346E(2), 346M, 347(1)(b), 348, 349(1), 351, 576C, Sch 8, cl 31

Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Sch 4, Item 4

Industrial Relations Act 1996 (NSW) s 12(1)

Passenger Transport Act 1990 (NSW) Pt 3, Div 1, Div 1A

Passenger Transport Act 2014 (NSW)

Passenger Transport Regulation 2007 (NSW) s 237(1)

Marine Charter Vessels (State) Award 2002 cls 2(i), 3, 4

Marine Tourism and Charter Vessels Award 2010 cls 2.1, 3.1, 4.1, 20.2

Motor Ferries (State) Award 2001 cls 1, 26.1

Ports, Harbours and Enclosed Water Vessels Award 2010 cls 2.1, 4.1, 13, 14.17, 14.22, 14.23, 19

Cases cited:

Aubrey v The Queen [2017] HCA 18

Award Modernisation - Decision - Full Bench [2008] AIRCFB 1000

Award Modernisation - Decision - Full Bench [2009] AIRCFB 826

Award Modernisation - Statement - Full Bench [2008] AIRCFB 708

Award Modernisation - Statement - Full Bench [2009] AIRCFB 100

Award Modernisation - Statement - Full Bench [2009] AIRCFB 450

Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374

Construction, Forestry, Maritime, Mining and Energy Union v Fantasea Pty Limited; The Australian Maritime Officers’ Union [2020] FWCFB 4443

James Cook University v Ridd [2020] FCAFC 123

Kucks v CSR Ltd (1996) 66 IR 182

Noorton Pty Ltd t/a Manly Fast Ferry [2018] FWCA 4521

R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123

Request from the Minister for Employment and Workplace Relations - 28 March 2006 - Full Bench [2008] AIRCFB 550

Toyota Motor Corp Australia Ltd v Marmara [2014] FCAFC 84

Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148

Division:

Fair Work

Number of paragraphs:

163

Date of last submission/s:

11 May 2022

Date of hearing:

15 and 16 September 2021

Place:

Sydney

Counsel for the Applicants:

Mr T Slevin and Mr A Guy, by video

Solicitor for the Applicants:

Slater & Gordon Lawyers

Counsel for the Respondent:

Mr Y Shariff SC, by video

Solicitor for the Respondent:

Seyfarth Shaw

ORDERS

SYG 2115 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Applicant

BEAU THEODORE CHIPPINDALE

Second Applicant

AND:

NOORTON PTY LTD (ACN 070 125 478)

Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	26 AUGUST 2022

THE COURT ORDERS THAT:

1.The proceeding be listed for a directions hearing at 9:30 am on 23 September 2022 for the purpose of setting the matter down to hear submissions on:

(a)what if any relief should be granted on the basis of the findings that have been made in relation to the industrial instruments that applied to the second applicant’s employment with the respondent; and

(b)whether, on the findings that have been made, and the evidence that has been adduced, the respondent failed to pay to the second applicant during his employment with the respondent any amounts to which the second applicant became entitled under the Ports, Harbours and Enclosed Water Vessels Award 2010.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. From around 25 May 2015 to 10 October 2018 (Employment Period) the second applicant, Mr Chippindale, a member of the first applicant (CFMMEU), was employed by the respondent (Noorton), initially as a general purpose hand (GPH), and then as a master, on board or in relation to water-going vessels operated by Noorton. The applicants contend Mr Chippindale’s employment with Noorton was covered by the Ports, Harbours and Enclosed Water Vessels Award 2010 (PHE Award), and that Noorton did not pay amounts it was required to pay him under the PHE Award. For this reason the applicants claim Noorton engaged in multiple contraventions of s 45 of the Fair Work Act 2009 (Cth) (FW Act).

2. Noorton denies the PHE Award covered Mr Chippindale’s employment. Noorton contends Mr Chippindale’s employment as a GPH was covered by a workplace agreement known as the “Noorton Pty Ltd T/AS Bass and Flinders Cruises Commercial Vessel & Whale Watching - General Purpose Hands - Workplace Agreement 2009” (GPH agreement), which was made under the Workplace Relations Act 1996 (Cth) (WR Act), and which continued under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (FW Transition Act); and that Mr Chippindale’s employment as a master was covered by a workplace agreement, known as the “Noorton Pty Ltd T/AS Bass and Flinders Cruises Commercial Vessel & Whale Watching - Officers - Workplace Agreement 2009” (2009 Masters agreement), which was also made under the WR Act, and which was also continued under the FW Transition Act. Noorton alternatively contends that if the 2009 Masters and GPH agreements did not cover Mr Chippindale’s employment, his employment was covered by the Marine Tourism and Charter Vessels Award 2010 (MTC Award).

3. The structure of the parties’ submissions suggest that the questions that arise, and the order in which I should determine them, are as follows:

   (a)Did the GPH and 2009 Masters agreements apply to Mr Chippindale’s activities as a GPH and then as a master?

   (b)If (a) is answered in the negative, did the MTC Award wholly or substantially cover Mr Chippindale’s activities as a GPH and then as a master?

   (c)If (b) is answered in the negative, did the PHE Award apply to Mr Chippindale’s activities as a GPH and then as a master?

4. My consideration of the evidence, however, and the terms of the various awards that potentially applied to Mr Chippindale’s activities, have led me to conclude that the determination of the parties’ competing submissions are best approached by addressing the following questions:

   (a)Did the MTC Award wholly cover Mr Chippindale’s activities as a GPH and then as a master?

   (b)If (a) is answered in the negative, did the PHE Award apply to Mr Chippindale’s activities as a GPH and then as a master, assuming the GPH and 2009 Masters agreements did not apply to Mr Chippindale’s activities as a GPH or a master?

   (c)If (b) is answered in the affirmative, did the GPH and 2009 Masters agreements apply to Mr Chippindale’s activities as a GPH or a master?

5. Before I address these questions, it will be necessary to set out:

   (a)first, the activities of some classes of Noorton’s employees as at around May and June 2009, and the awards that potentially applied to these classes of employees at that time;

   (b)second, the services Noorton provided by use of its vessels, and the activities Mr Chippindale performed in connection with the provision of those services; and

   (c)third, the parties’ competing submissions.

   APPLICABLE OR POTENTIALLY APPLICABLE INDUSTRIAL INSTRUMENTS

   Noorton’s activities in June 2009

6. In June 2009 Noorton carried out activities relating to “charter cruises”.[1] According to two Employer Declaration Forms it lodged with the Workplace Authority (WA) on 30 June 2009, Noorton employed at least four classes of employees to conduct “charter cruises”: “masters”, whose main task was to be in charge of vessels; “engineers”, whose main task was to be in charge of engine operations; “coxswains”, whose main task was to be in charge of smaller vessels where no master is required; and “general purpose hands”, whose main task was to assist with the operation of the vessel.[2] The Employer Declaration Forms stated that “[a]rts and recreation services” best described the industry in which Noorton carried out its activities relating to “charter cruises”.

   [1] Affidavit R I Ford 02.07.2021, [43]-[48]; annexures “RF-6”, “RF-8”, “RF-9”, “RF-11”

   [2] Affidavit R I Ford 02.07.2021, [43]-[45]; annexures “RF-6”, “RF-9”

7. Mr Ford, the chief executive of Noorton, and a director of Manly Fast Ferry Pty Ltd (MFF), gave evidence that as at June 2009 Noorton was only operating charter services.[3] The Employer Declaration Forms Noorton submitted to the WA stated there were a total of 14 employees who were masters, engineers, coxswains, or GPHs; and Mr Ford accepted that in around June 2009 Noorton employed 14 persons, 10 of whom were employed as casuals.[4]

   [3] T65.30

   [4] T65.10

   MFF’s activities in May 2009

8. In around May 2009 MFF, a wholly owned subsidiary of Noorton,[5] carried out activities relating to “ferry operations”.[6] According to evidence given by Mr Ford, MFF began to carry out these operations after it entered into a contract with the Government of New South Wales (NSWG) to operate a fast ferry service between Manly and Circular Quay.[7]

   [5] Affidavit R I Ford 02.07.2021, [13]. In evidence given under cross-examination Mr Ford said he recalled MFF was a wholly owned subsidiary of Noorton (T62.15).

   [6] Affidavit R I Ford 02.07.2021, [49]-[51]; annexures “RF-12”, “RF-14”

   [7] T69.40; T71.5

9. According to an Employer Declaration Form MFF lodged with the WA on 5 May 2009, MFF engaged at least three classes of employees in relation to its ferry operations: “general purpose hand”, whose main tasks were associated with vessel operation and maintenance; “ticket seller/cashier”, whose main task was to sell tickets; and “host/hostess”, whose main task was to assist in boarding.[8] The Employer Declaration Form stated that “[t]ransport, postal and warehousing” best described the industry in which MFF carried out its activities relating to “ferry operations”. The Employer Declaration Form MFF lodged with the WA did not include masters. There was, however, an award that at the very least potentially applied to masters of the vessels MFF used in relation to its ferry operations, that award being the Motor Ferries (State) Award  2001 (MF State Award).

   [8] Affidavit R I Ford 02.07.2021, [49]; annexure “RF-12”

   Award coverage of those involved in “charter cruises” in 2009

10. The classification between “masters”, “engineers”, and “general purpose hands” Noorton identified in the Employer Declaration Forms appears to have been based, at least in substantial part, on the classification contained in the Marine Charter Vessels (State) Award 2002 (MCV State Award). That was a “pre-reform award” within the meaning of s 4(1) of the WR Act, being an “instrument that” had “effect after the reform commencement under item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005” (WR Amendment Act). Subitem 4(3) of Schedule 4 to the WR Amendment Act provided that an award that was in effect immediately before the WR Amendment Act came into effect “is taken to be replaced by an instrument (the pre reform-award) in the same terms as the original award that, on and from the reform commencement, has effect under the” WR Act.

11. The MCV State Award was made under the Industrial Relations Act 1996 (NSW) (IR Act). By the operation of s 12(1) of the IR Act the MCV State Award was “binding on all employees and employers to which it relates, whether or not they were a party to the making of the award”. The MCV State Award related to “Employers” and to three classes of employees, namely, “master”, “engineer”, and “general purpose hand”. Clause 2 defined “master” to mean “an appropriately qualified person having command of a charter vessel”; “engineer” to mean “an appropriately qualified marine engineer employed on a charter vessel”; and “general purpose hand” to mean “an appropriately qualified person, other than a master or engineer, employed on a charter vessel to perform duties associated with its operation or maintenance”. The expression “charter vessel” was defined in cl 2(i) of the MCV State Award to mean:

    a vessel engaged wholly or principally within the limits of bays, harbours and rivers as a tourist, sightseeing or cruise vessel and/or as a place of or for entertainment, functions or restaurant purposes, but does not include a vessel on which overnight accommodation for crew or passengers is available and used.

12. Clause 3 of the MCV State Award provided that “[m]asters, engineers and general purpose hands may be engaged indefinitely or for casual work only”. Clause 4 of the MCV State Award defined ordinary hours of work:

    The ordinary hours of work for employees other than casuals shall:

    (i)not exceed 40 hours per week;

    (ii)be worked between the hours of 7.00 a.m. on one day and 2.00 a.m. on the next day;

    (iii)be worked on Monday to Saturday in any week or during any other six-day period in any week mutually agreed upon between an employer and employee or of which period the employer has given at least 14 days' written notice to the employee; and

    (iv)be a minimum of four hours and a maximum of 12 hours on any one day within the spread of hours prescribed in subclause (ii) of this clause.

13. The MCV State Award was also a “notional agreement preserving State awards” (NAPSA) within the meaning of cl 31 of Schedule 8 to the WR Act.[9] One consequence of the MCV State Award being a NAPSA is that it was subject to the award modernisation process provided for by Part 10A of the WR Act. Section 576C of the WR Act required award modernisation to be conducted in accordance with an award modernisation request made by the Minister for Employment and Workplace Relations. The Minister made such a request on 28 March 2008,[10] by which he required the Australian Industrial Relations Commission (AIRC) to “formulate awards which apply to corporations throughout Australia in the industry or occupation concerned, replacing many hundreds of federal and state awards containing a wide diversity of terms and conditions”.[11] On 30 April 2008 a Full Bench of the AIRC (AIRCFB) was constituted to undertake the process.[12]

    [9] Which was included in the WR Act by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).

    [10] Award Modernisation - Decision - Full Bench [2008] AIRCFB 1000, at [1]

    [11] Award Modernisation - Decision - Full Bench [2009] AIRCFB 826, at [3]

    [12] Request from the Minister for Employment and Workplace Relations - 28 March 2006 - Full Bench [2008] AIRCFB 550, at [1]

14. By 3 September 2008 the AIRCFB identified “Tourism” as an industry that would be included in stage 3 of the award modernisation process.[13] On 22 May 2009 the AIRCFB published two draft awards in relation to the “port and harbour services” industry, one of which was a draft of the MTC Award.[14] The AIRCFB said:[15]

    The draft marine tourism and charter vessels award covers vessels engaged wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment, functions, restaurant/food and beverage purposes engaged in the provision of water orientated tourism, leisure and/or recreational activities. The draft applies to such activities conducted both in bays, rivers and estuaries as well as offshore sightseeing involving overnight stays. Coverage of the award does not extend to commercial freight and ferry services, and is not intended to disturb traditional coverage. The Full Bench invites any further submissions in relation to whether further refinement of the award’s coverage is warranted.

    [13] Award Modernisation - Statement - Full Bench [2008] AIRCFB 708

    [14] Award Modernisation - Statement - Full Bench [2009] AIRCFB 450, at [213]-[222]

    [15] Award Modernisation - Statement - Full Bench [2009] AIRCFB 450, at [214]

15. On 30 January 2009 the AIRCFB published a statement listing the MCV State Award as “NAPSAs (non-enterprise)”;[16] and on 4 September 2009 the AIRCFB published the “stage 3 awards” which included a draft of the MTC Award. The AIRCFB addressed that award under the heading “Tourism industry”, noting the following:[17]

    This modern award brings together a number of different types of award provisions applying to the marine tourism industry. That industry includes day charters for both onshore and offshore tourism and overnight charters for offshore tourism. In order to accommodate the two types of charter operations we have developed two sets of hours and wages provisions. New definitions have been included of overnight charter employee and non-overnight charter employee. The various wage arrangements and entitlements that apply to each type of employee can be readily differentiated.

    The award contains flexible working hours arrangements which are consistent with the NES and reflect the span of hours that has customarily applied in the various sections of the industry. Penalties apply in certain circumstances, depending upon the nature of the operation and the type of engagement.

    Daily wage rates for overnight charter employees have been adjusted to reflect the incorporation of penalties for work on weekends and public holidays. The payment schedule for charters of particular duration has also been amended.

    [16] Award Modernisation - Statement - Full Bench [2009] AIRCFB 100

    [17] Award Modernisation - Decision - Full Bench [2009] AIRCFB 826, at [266]-[267]

16. The MTC Award commenced on 1 January 2010.[18]

    [18] MTC Award, cl 2.1

17. Clause 4.1 of the MTC Award provides that the MTC Award “covers employers throughout Australia in the Marine Tourism and Charter Vessels Industry and their employees in the classifications listed in clause 13”. The expression “marine tourism and charter vessel industry” is defined in cl 3.1 of the MTC Award as follows:

    marine tourism and charter vessel industry means the operation of vessels engaged on a day charter or for an overnight charter wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment, functions, restaurant/food and beverage purposes engaged in the provision of water orientated tourism, leisure and/or recreational activities but does not include the operation of ferries engaged in regular scheduled passenger and/or commuter transport.

18. Clause 20.2 of the MTC Award identified ordinary hours of work for “non-overnight Charter Employees” as follows:

    For Non-overnight Charter Employees the ordinary hours:

    (a)       must not exceed 38 hours per week averaged over a period of 12 months;

    (b)must be a minimum of two hours and a maximum of 12 hours on any one day within the spread of hours prescribed in clause 20.2(c); and

    (c)may be worked on any day of the week Monday to Saturday between the hours of 6.00 am and 2.00 am the next day or during any other six day period in any week mutually agreed upon between an employer and an employee and of which period the employer has given at least 14 days’ written notice to the employee.

1. In the meantime, on 1 July 2009, Schedule 5 to the FW Transition Act came into effect. Subitems 2(1)-(3) to Schedule 5 of the FW Transition Act provided for the continuation by the AIRC of the award modernisation process that had been initiated under Part 10A of the WR Act as follows:

   (1)The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of the WR Act (the Part 10A award modernisation process).

   (2)For that purpose, Part 10A of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part.

   (3)Without limiting subitem (2), the request under section 576C of the WR Act continues to apply on and after the WR Act repeal day, and may be varied in accordance with that section.

2. Item 4(1) of Schedule 5 to the FW Transition Act provides:

   A modern award made in the Part 10A award modernisation process is, for the purposes of the FW Act (and any other law), taken to be a modern award within the meaning of that Act from the later of the following days:

   (a)  the day on which the award is made;

   (b)  the FW (safety net provisions) commencement day.

   Award coverage of those involved in MFF’s “ferry operations” in 2009

3. As I have already noted, in the Employer Declaration Form MFF lodged with the WA on 5 May 2009 MFF identified three classes of persons who were engaged in ferry operations, namely, “general purpose hand”, “ticket seller/cashier”, and “host/hostess”. The Employer Declaration Form also stated that the MF State Award applied to these classes of employees.

4. As with the MCV State Award, the MF State Award was a “pre-reform award” made under the IR Act; and it was “binding on all employees and employers to which it relates, whether or not they were a party to the making of the award”. The MF State Award identified three classes of employees: “master”, “engineer”, and “deckhand”. “Master” was defined to mean “an appropriately qualified person having command of a vessel”; and “deckhand” was defined to “include any person other than a Master or Engineer assisting on a vessel as defined in subclause (i) of” cl 1 of the MF State Award. “Engineer” was not defined. “Vessel” was defined to mean “a vessel propelled by steam or motor”. Clause 26.1 of the MF State Award provided:

   This award shall apply to all employees of the classes herein mentioned employed in and in connection with any motor ferry used in any regular ferry passenger work within the jurisdiction of the Ferries (State) Conciliation Committee; provided that any motor boat temporarily transferred to other than ferry work shall not itself exclude the employees so employed from the provisions of this award; provided further that any motor vessel generally operating under and covered by the Marine Motor Drivers, Coxswains, &c. (State) Award published 7 May 1993(274 I.G. 1215), as varied, shall not be covered by this award when such motor vessel is temporarily transferred to any of the services covered by this award.

5. The classes of employees cl 26.1 identifies are described at the end of the MF State Award:

   Ferries (State) Conciliation Committee

   Industries and Callings

   All persons employed on ferry boats, and masters, engineers, firemen and deck hands, both when employed on the boats and when employed on the wharf or in the yard, including engine drivers, firemen, crane and/or winch drivers on pontoons; labourers, both when employed on and when employed off the boats; turnstile hands, ticket and change hands, wharf cleaners, passage attendants, wharf attendants, ship keepers, coaling hands, lavatory and cloakroom attendants, night officers, tramway employees (other than engine drivers) and storekeepers, whether employed on the ferry boats or in connection with ferry services; all in the harbours of the State;

   excepting employees on the National Ferries; and excepting also employees of –

   The Maritime Services Board of New South Wales;

   The Council of the City of Newcastle;

   State Rail Authority of New South Wales and Urban Transit Authority of New South Wales.

6. By 3 September 2008 the AIRC identified “port and harbour services” as an industry that would be included in stage 3 of the award modernisation process,[19] and on 30 January 2009 the AIRC published a statement listing the MF State Award as “NAPSAs (non-enterprise)”.[20] On 22 May 2009 the AIRC published five draft awards in the “port and harbour services” industry, one of which was a draft of the PHE Award.[21] The PHE Award commenced on 1 January 2010.[22]

   [19] Award Modernisation - Statement - Full Bench [2008] AIRCFB 708

   [20] Award Modernisation - Statement - Full Bench [2009] AIRCFB 100

   [21] Award Modernisation - Statement - Full Bench [2009] AIRCFB 450, at [167]-[173]; [213]-[222]

   [22] PHE Award, cl 2.1

7. Thus, the PHE Award is a “modern award” for the purposes of the FW Act. Clause 4 of the PHE Award relevantly provides:

   4.1This award covers employers throughout Australia in the ports, harbours and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:

   (a) the Maritime Offshore Oil and Gas Award 2010;

   (b) the Seagoing Industry Award 2010;

   (c)       the Port Authorities Award 2010;

   (d)       the Dredging Industry Award 2010;

   (e)       the Stevedoring Industry Award 2010;

   (f)       the Marine Towage Award 2010;and

   (g)       the Marine Tourism and Charter Vessels Award 2010.

   For the purpose of clause 4.1, ports, harbours and enclosed water vessels industry means the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards.

   . . . .

   4.4The award does not cover an employee excluded from award coverage by the Act.

   . . . .

   4.8This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

   4.9Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

8. The classifications listed in cl 13 of the PHE Award include a master and GPH.

   2009 Masters agreement

9. On about 30 June 2009 Noorton lodged with the WA an “Employer Declaration Form”, together with a document titled “Noorton Pty Ltd T/AS Bass and Flinders Cruises Commercial Vessel & Whale Watching - Officers - Workplace Agreement 2009” (being the 2009 Masters agreement).[23] The 2009 Masters agreement purported to be, and the parties accept it was, an “employee collective agreement” within the meaning of s 327 of the WR Act, namely, an agreement an employer makes “in writing with persons employed at the time in a single business (or part of a single business) of the employer whose employment will . . . be subject to the agreement”, and therefore a “workplace agreement” as defined in s 4(1) of the WR Act. Under s 333(b) of the WR Act an “employee collective agreement” is made when the agreement is approved under s 340(2) of the WR Act, namely, when a majority of the employees to which the agreement applies approve the agreement.

   [23] Affidavit R I Ford 02.07.2021, [43], [45]; annexures “RF-6”, “RF-8”

10. Clause 2 of the 2009 Masters agreement provided that it is binding on Noorton and employees of Noorton “engaged either on board a Commercial vessel or in connection with the vessel as either a Master or an Engineer”. Clause 6 defined “Commercial vessel” as follows:

    6.1. “Commercial vessel” means a vessel engaged wholly or principally within the limits of bays, harbours and rivers as a tourist, sightseeing or cruise vessel and/or as a place of or for entertainment, functions or restaurant purposes. A Commercial vessel may also be taken to include those vessels engaged in the above activities which operate up to 15 nautical miles off shore.

    6.2. Further to 6.1, a Commercial vessel may include those vessels which provide overnight accommodation during the operation of their business.

11. Clause 6.1 repeats the definition of “charter vessel” given in cl 2(i) of the MCV State Award except that cl 6.1 of the 2009 Masters agreement describes the vessel it defines as a “commercial vessel”, not a “charter vessel”; it excludes “but does not include a vessel on which overnight accommodation for crew or passengers is available and used”; and it added the second sentence.

12. Clause 4.1 of the 2009 Masters agreement provided:

    The aim and objective of this Agreement is to implement one industrial instrument that regulates the employment conditions of the employees of Noorton Pty Ltd t/as Bass & Flinders Cruises who are employed on the Company's vessels while the vessels are engaged in commercial Vessel & whale watching operations

13. Clause 7.1 of the 2009 Masters agreement provided:

    The terms and conditions of this Agreement shall replace in its entirety the terms and conditions of the NAPSA known as the Marine Charter Vessels (State) Award and all variations thereof: and any Award or industrial instrument replacing such NAPSA which would otherwise govern the employment relationship between the Parties to this Agreement.

14. The 2009 Masters agreement also included the following terms:

    (a)Clause 15.1, which appears under the heading “Terms of Engagement”, provided that employees shall be employed as either “a Full-Time Weekly Employee, Part-Time Weekly Employee or a Casual Employee”.

    (b)Employees would be remunerated in accordance with Schedule 1 to the 2009 Masters agreement.[24] That schedule specified a weekly rate, a weekly employee hourly rate, and a casual employee hourly rate; and these differed according to the classification of the employee (master, engineer, and coxswain), and whether the vessel is a large vessel (being a vessel having a length of 25 metres and less than 35 meters) and a small vessel (being a vessel less than 25 metres) or, in the case of a coxswain, a small vessel that is less than 12 metres. A “master” was defined to mean “an appropriately qualified person having command of a Commercial vessel”.[25]

    (c)Full time weekly employees were required to work, as a minimum, on average, 38 ordinary hours per week averaged over any 12 month period of employment, plus any reasonable additional hours as required under cl 10.1.2.[26]

    (d)A full time weekly employee’s ordinary hours work was to be worked: (a) between the spread of hours of 7:00 am on one day and 2:00 am on the next day; (b) Monday to Sunday in any week or during any period in any week mutually agreed upon between Noorton and the employee; and (c) with a minimum of four hours and a maximum of 11 hours worked on any one day within the spread of hours of 7:00 am on one day and 2:00 am on the next day.[27]

    (e)Noorton was required, where practical, and where it suited the operational needs of its business, to implement rosters in the manner provided for in cl 10.3.

    (f)An employee had to be given at least nine consecutive hours between ceasing work on one day and commencing work on the following day.[28]

    (g)Clause 14.1 provided that where an employee is required to start or finish work outside the spread of hours referred to in (c) and (d), and the employee does not have his or her own means of transport, or public transport is not readily available, Noorton was required to provide transport or, if such transport is not provided, the employee would be allowed travelling time at ordinary rates to the extent of one hour each way.

    (h)Clause 18 provided for the payment of overtime for all time worked in excess of 11 hours on any shift.

    (i)Clause 26 provided for a number of amenities and allowances. These included a suitable meal break time of no more than 20 minutes, to be mutually agreed between the employee and Noorton; and Noorton was required to provide the employee with a meal where the shift to be worked exceeds five hours or $9.85 in lieu.

    [24] 2009 Masters agreement, cl 9.1

    [25] 2009 Masters agreement, cl 16.1

    [26] 2009 Masters agreement, cl 10.1.1

    [27] 2009 Masters agreement, cl 10.1.3

    [28] 2009 Masters agreement, cl 13.1

15. It is common ground that the 2009 Masters agreement was made before 1 July 2009 (WR Act repeal day), being the day on which Schedule 1 to the FW Transition Act repealed most of the provisions of the WR Act, including Part 8 of the WR Act, which dealt with workplace agreements. It is also common ground that the provisions of the WR Act that applied to workplace agreements made before the WR Act repeal day continued to apply to the 2009 Masters agreement from 1 July 2009. The basis of that common ground is the following:

    (a)paragraph (c) of item 2(2) of Schedule 3 to the FW Transition Act, which provides that a “workplace agreement” is a “WR Act instrument”;

    (b)paragraph (b) of item 2(3) of Schedule 3 to the FW Transition Act, which provides that, on the WR Act repeal day, each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day becomes a “transitional instrument”;

    (c)paragraph (b) of item 2(5) of Schedule 3 to the FW Transition Act, which provides that transitional instruments that are not “award-based transitional instruments” within the meaning of paragraph (a) of item 2(5) of Schedule 3 to the FW Transition Act are “agreement-based transitional instruments”;

    (d)item 2(1) of Schedule 3 to the FW Transition Act, which provides that each WR Act instrument that becomes a transitional instrument continues in existence in accordance with Schedule 3 from when it becomes a transitional instrument, despite the WR Act repeal; and

    (e)item 3(1) of Schedule 3 to the FW Transition Act, which provides that a transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.

16. Relevant to the issues in this proceeding are items 5(1) and 5(2) of Schedule 3 to the FW Transition Act, which provide:

    (1)The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

    (2)Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

    (a)one instrument has priority over, or excludes, another instrument:

    (i) either completely or to a particular extent; and

    (ii)either permanently or for a particular period; or

    (b) one instrument ceases to operate because of another instrument:

    (i) either completely or to a particular extent; and

    (ii) either permanently or for a particular period.

17. There are two “instrument interaction rules” in the WR Act that are or may be relevant. One is s 348 of the WR Act, which deals with overlapping workplace agreements. It relevantly provides as follows:

    (1)Only one workplace agreement can have effect at a particular time in relation to a particular employee.

    . . .

    (3)If:

    (a)a collective agreement (the first agreement) binding an employee is in operation; and

    (b)another collective agreement (the later agreement) binding the employee is lodged before the nominal expiry date of the first agreement;

    the later agreement has no effect in relation to the employee until the nominal expiry date of the first agreement.

18. The second “instrument interaction rule” is that contained in s 349(1) of the WR Act, which relevantly provides that an “award has no effect in relation to an employee while a workplace agreement operates in relation to the employee”. Here, “award” has the meaning given to it by s 4(1) of the WR Act, namely, a “pre-reform award”.

19. Also relevant is item 28(1) of Schedule 3 to the FW Transition Act, which provides:

    While an agreement‑based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:

    (a)       a workplace agreement;

    . . . .

    a modern award does not apply to the employee, or to the employer or other person in relation to the employee.

20. In light of these provisions, Noorton is to be taken to have lodged with the WA the “Employer Declaration Form” and the 2009 Masters agreement as if s 344 and all other provisions of Part 8 of the WR Act applied; and it did so for the purpose of a Workplace Authority Director (WA Director) determining whether the 2009 Masters agreement passed the “no-disadvantage test” within the meaning of s 346D(2) of the WR Act. That subsection provided that a “collective agreement” passes the “no-disadvantage test” if a WA Director “is satisfied that the agreement does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees whose employment is the subject to the agreement under any reference instrument relating to one or more of the employees”. Paragraph (b) of s 346E(1) of the WR Act defined “reference instrument”, when used in relation to employees whose employment is subject to a “collective agreement” (which includes an “employee collective agreement”), to mean, among other things, any “designated award”. Subsection 4(1) of the WR Act defined an “award” to mean a “pre-reform award” which s 4(1), in turn, defined as “an instrument that has effect after the reform commencement under item 4 of Schedule 4 to the” WR Amendment Act. As I have already noted, under subitem 4(3) of Schedule 4 to the WR Amendment Act, an award that was in effect immediately before the WR Amendment Act came into effect “is taken to be replaced by an instrument (the pre reform award) in the same terms as the original award that, on and from the reform commencement, has effect under the” WR Act.

21. The Employer Declaration Form Noorton lodged with the 2009 Masters Agreement stated that the primary activity of the business to which the form was directed was “charter cruises”; Noorton employed fewer than 20 persons; the 2009 Masters agreement covered masters, engineers, and coxswains; and Noorton identified the MCV State Award as the award that would cover the employees who were intended to be the subject of the 2009 Masters agreement.

22. By notice issued on 13 August 2009 under s 346M of the WR Act the WA informed Noorton that the 2009 Masters agreement had passed the no-disadvantage test, and that it would start operating on the seventh day after the date of issue of the notice.[29] Under (the continued operation of) s 347(1)(b) of the WR Act the 2009 Masters agreement came “into operation” on 20 August 2009, being “the seventh day after the date of issue specified in the notice under subsection 346M(1)”. When the 2009 Masters agreement came into operation, (the continued) s 351 of the WR Act applied:

    A workplace agreement that is in operation binds:

    (a)       the employer in relation to the agreement; and

    (b)all persons whose employment is, at any time when the agreement is in operation, subject to the agreement; and

    (c)if the agreement is a union collective agreement or a union greenfields agreement – the organisation or organisations of employees with which the employer made the agreement.

    [29] Affidavit R I Ford 02.07.2021, [44]; annexure “RF-7”

1. Having come into operation under s 347(1)(b) of the WR Act the 2009 Masters agreement became a “transitional instrument” under subitem 2(2) of Schedule 3 to the FW Transition Act, and it became subject to the “instrument interaction rules”, within the meaning of subitem 5(2) of Schedule 3 to the FW Transition Act. The relevant “instrument interaction rule” is that provided for by s 349(1) of the WR Act, which provides that an “award has no effect in relation to an employee while a workplace agreement operates in relation to the employee”. When the PHE Award came into effect paragraph (a) of subitem 28(1) of Schedule 3 to the FW Transition Act applied. Thus, neither the MCV State Award nor the PHE Award had any effect in relation to an employee of Noorton while the 2009 Masters agreement operated in relation to the employee.

2. There is one final matter to note about the 2009 Masters agreement; and that is cl 3, which provides:[30]

   This Agreement shall operate on and from the 7th day after the date of issue of the Workplace Authority's Notice under the Workplace Relations Act 1996 and shall remain in force until the [sic] for a period of 4 years.

   [30] This was the subject of submissions the parties provided in response to a request I made after the hearing.

3. That clause must be read with a number of other provisions. These include paragraph (a) of subitem 9(2) of Schedule 3 to the FW Transition Act, which provides that a “transitional instrument cannot be terminated (or otherwise brought to an end) except under . . . a provision of this Part”, being Part 3 of Schedule 3; and items 15 and 16(1)(a) of the FW Transition Act, which provide:

   15.Collective agreement‑based transitional instruments: termination by agreement

   Subdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.

   16 Collective agreement‑based transitional instruments: termination by the FWC

   (1)Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.

   (2)For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.

4. “Nominal expiry date” is defined in s 12 of the FW Act in relation to an enterprise agreement approved under s 186 of the FW Act (very broadly, the successor to s 346M of the WR Act) to mean “the date specified in the agreement as its nominal expiry date”.

5. The consequence of these provisions is that, although the 2009 Masters agreement had a nominal expiry date that was four years after the date of issue of the notice dated 13 August 2009 the WA issued under s 346M of the WR Act, the agreement could only terminate according to either Subdivision C or D of Part 2-4 of the FW Act. The 2009 Masters agreement was not terminated by agreement; it was, however, in effect superseded by an enterprise agreement the Fair Work Commission (FWC) approved on 19 November 2019, after Mr Chippindale ceased his employment with Noorton.[31] The enterprise agreement is identified as “Noorton Pty Ltd T/A MFF - Sydney Harbour Services - Masters, Coxswains, Deck Hands and Hosts Enterprise Agreement 2019” (2019 Noorton Enterprise Agreement).

   [31] Affidavit R I Ford 02.07.2021, [53]

   GPH agreement comes into effect

6. Also on about 30 June 2009 Noorton lodged with the WA an “Employer Declaration Form”, together with a document titled “Noorton Pty Ltd T/AS Bass and Flinders Cruises Commercial Vessel & Whale Watching - General Purpose Hands - Workplace Agreement 2009” (this being the GPH agreement).[32] In the Employer Declaration Form, Noorton stated that “charter cruises” was the primary activity of its business; it identified “general purpose hand” as the job classification name, noting that the main task of this job consisted of assisting with the operation of the vessel, and identified the MCV State Award as the award that would cover the employees who were intended to be the subject of the GPH agreement.

   [32] Affidavit R I Ford 02.07.2021, [46], [47]; annexures “RF-9” and “RF-11”

7. Clause 2 of the GPH agreement provided that it was binding on Noorton and “Employees of Noorton Pty Ltd t/as Bass & Flinders Cruises engaged either on board a Commercial vessel or in connection with the vessel as a” GPH. “Commercial Vessel” is defined in the same terms as “Commercial Vessel” in cl 6 of the 2009 Masters agreement, and cl 4, and cl 7 of the GPH agreement are substantially the same as cl 4 and cl 7 of the 2009 Masters agreement. The GPH agreement otherwise contained terms substantially identical with those contained in the 2009 Masters agreement, except the employees were classified as GPH and junior GPH.

8. By notice issued on 14 August 2009 under s 346M of the WR Act the WA informed Noorton that the GPH agreement had passed the no-disadvantage test, and that it would start operating on the seventh day after the date of issue of the notice.[33] As with the 2009 Masters agreement, the GPH agreement came into operation as a “transitional instrument” under item 2(2) of Schedule 3 to the FW Transition Act, and it became subject to s 349(1) of the WR Act and, after the PHE Award came into effect, it became subject to paragraph (a) of item 28(1) of Schedule 3 to the FW Transition Act. Thus, neither the MCV State Award nor the PHE Award had any effect in relation to an employee of Noorton while the GPH agreement operated in relation to the employee. The GPH agreement was on foot until it was superseded by the 2019 Noorton Enterprise Agreement.

   [33] Affidavit R I Ford 02.07.2021, [47]; annexure “RF-10”

   MFF/MUA agreement comes into effect

9. On 5 May 2009 MFF lodged with the WA an “Employer Declaration Form”, together with a document titled “Manly Fast Ferry Pty Ltd & MUA - Sydney Harbour Ferry - Workplace Agreement 2009” (MFF/MUA agreement), being a collective agreement made between MFF and the Maritime Union of Australia.[34] Mr Ford gave evidence in cross-examination that the MFF/MUA agreement “was put in place for the contract to access with the New South Wales Government for the purpose of providing this fast ferry service between Wharf 2 Manly and Wharf 2 Circular Quay”.[35]

   [34] Affidavit R I Ford 02.07.2021, [49]; annexures “RF-12” and “RF-14”

   [35] T73.15

10. In the Employer Declaration Form, MFF stated that the primary activity of its business was “ferry operations”; the MFF/MUA agreement covered the job classifications of “general purpose hand”, “ticket seller/cashier”, and “host/hostess”; and identified the MF State Award as the award that would cover the employees who were intended to be the subject of the MFF/MUA agreement.

11. Clause 3 of the MFF/MUA agreement bound MFF, the MUA, and:

    The employees of [MFF] in relation to their employment in the performance of work on board a vessel or in connection with a vessel operating as a passenger ferry on Sydney Harbour on runs between Circular Quay and Manly Jetty, in the position of either a:

    a)General Purpose Hand;

    b)A Ticket Seller/Cashier; or

    c)A Host/Hostess.

12. Clause 5.1 of the MFF/MUA agreement was as follows:

    The aim and objective of this Agreement is to implement an industrial instrument that regulates the employment conditions of the employees of [MFF] who are employed on [MFF’s] vessels in relation to its new venture of operating a Passenger Ferry service on Sydney Harbour to replace the NSW State Government’s cancelled Manly Jetcat Service.

13. By notice issued on 22 June 2009 under s 346M of the WR Act the WA informed MFF that the MFF/MUA agreement had passed the no-disadvantage test, and that it would start operating on the seventh day after the date of issue of the notice.[36] The MFF/MUA agreement came into operation on 29 June 2009 as a “transitional instrument” under item 2(2) of Schedule 3 to the FW Transition Act, and it became subject to s 349(1) of the WR Act, and to paragraph (a) of item 28(1) of Schedule 3 to the FW Transition Act. Thus, neither the MF State Award nor the PHE Award had any effect in relation to an employee of Noorton while the MFF/MUA agreement operated in relation to the employee. The MFF/MUA agreement continued into effect until it was superseded by the 2019 Noorton Enterprise Agreement.

    [36] Affidavit R I Ford 02.07.2021, [50]; annexure “RF-13”

    SERVICES PROVIDED BY NOORTON AND MFF BEFORE EMPLOYMENT PERIOD

14. As I noted earlier in these reasons, Mr Ford gave evidence that MFF commenced ferry operations after it entered into a contract with the NSWG to operate a fast ferry route between Manly and Circular Quay.[37] The evidence is not entirely clear about who provided the service after June 2010. Although in his affidavit Mr Ford refers to and annexes the Employer Declaration Form MFF lodged and the MFF/MUA agreement, he says nothing about the services MFF then performed. Mr Ford first referred to the services MFF performed in paragraph 13 of his affidavit, where he deposes to MFF in December 2014 having been awarded a seven year ferry services contract by the NSWG to operate the high speed Manly fast ferry commuter service in under 20 minutes between Circular Quay and Manly.

    [37] T69.40; T71.5

15. Mr Ford further said that MFF “wasn’t running any services prior to 2015”,[38] and that was because Noorton had taken over the running of the services.[39] That, however, occurred in 2010, when Noorton “commenced the services”,[40] after licenses MFF held to use Wharf 2 Manly and Wharf 2 Circular Quay had expired.[41] On this evidence, therefore, MFF was providing a service before 2015, namely, a fast ferry service between Manly and Circular Quay, but it ceased doing so in 2010. Mr Ford also said that MFF ceased that service after the licenses in relation to Wharf 2 Manly and Wharf 2 Circular Quay lapsed. After Mr Ford answered “no” to the question whether another service was taken up by MFF at that time,[42] Mr Ford answered “[y]es, there was” to the same question.[43] Mr Ford then said that Noorton operated a service between Eastern Pontoon, Circular Quay, and Wharf 3 Manly.[44] The effect of his evidence is that MFF provided the fast ferry service until sometime in 2010 when the licenses it held in relation to Wharf 2 Manly and Wharf 2 Circular Quay lapsed, after which Noorton provided the service between Eastern Pontoon, Circular Quay, and Wharf 3 Manly.

    [38] T71.20

    [39] T71.25

    [40] T71.45

    [41] T71.45

    [42] T72.15

    [43] T72.15

    [44] T72.20

16. On 8 December 2011 the Director General of the Department of Transport, on behalf of Transport for NSW, granted to MFF an exemption under s 237(1) of the Passenger Transport Regulation 2007 (NSW) from the provisions of Division 1 and Division 1A of Part 3 of the Passenger Transport Act 1990 (NSW) “in respect of regular passenger services comprising the regular ferry services operating between Manly Wharf and Aquarium Wharf (Darling Harbour) via Milsons Point Wharf”.[45] MFF commenced that service in 2012,[46] and it apparently continued to do so until around 1 April 2015 when MFF “commenced a contract . . . between Transport for New South Wales and Manly Fast Ferry to operate a fast ferry service between Circular Quay and Manly”.[47] The contract was made pursuant to the Passenger Transport Act 2014 (NSW) (2014 PT Act).

    [45] Exhibit C

    [46] T74.35

    [47] T76.10

17. In his affidavit Mr Ford deposes that “Noorton provided the vessels and crew for the conduct of this service” that was the subject of the contract MFF made with the NSWG in December 2014.

18. Noorton provided a number of other services before 1 April 2015, which Mr Ford identified as follows:[48]

    Prior to 1 April 2015, we were operating a hop on, hop off service that provided both one-hour sightseeing loops, two-hour loops, all day tickets. We were operating whale watching services that operated daily, morning and afternoon on four vessels per day, up – up to four vessels per day. We were operating charters booked by groups to go from destination to destination and then picked up from those destinations and returned. We were operating events such as Vivid, New Year’s Eve, Boxing Day, sailing – watching sailing on Sydney Harbour.

    [48] T78.10

19. The “hop on, hop off service” consisted of vessels moving between different destinations at which passengers could board and disembark the vessel.[49] The purpose of the whale watching service was for all passengers to go to the same destination, being outside Sydney Heads.[50] Charters were booked in groups, but passengers could board and disembark at different destinations.[51] In relation to event charters, such as Vivid, or Boxing Day, passengers could board the vessel at different destinations, be taken on a predetermined route, and then return.[52]

    SERVICES PROVIDED BY NOORTON DURING EMPLOYMENT PERIOD

    [49] T78.20

    [50] T78.40

    [51] T78.45

    [52] T79.10-T79.40

    MFF service

20. One service was known as the “Manly Fast Ferry Service” (MFF service); and this was operated by MFF under a seven year contract with the NSWG to operate the high speed Manly Fast Ferry commuter service in under 20 minutes between Circular Quay and Manly from 6:15 am to 9:30 pm Monday to Friday, and from 10:00 am to 8:30 pm on weekends and public holidays.[53] The service commenced on 1 April 2015. Noorton employed the crew - masters and GPH - for the MFF service, and on-hired the crew to MFF.[54] Noorton also hired to MFF the vessels used to provide the MFF service.[55]

    [53] Affidavit R I Ford 02.07.2021, [13]

    [54] T80.10

    [55] T80.15

21. According to Mr Chippindale:

    (a)The MFF service ran from Manly to Circular Quay Wharf 2 and return from 6:20 am to 8:40 pm Monday to Friday, and 9:40 am to 8:40 pm on weekends. A trip from one wharf to another took approximately 18 minutes.[56]

    (b)The MFF service accepted the NSWG’s Opal Card as payment for a trip; and the service schedule was listed on the NSWG’s website, and associated apps.[57]

    (c)The MFF service was operated by Noorton on the vessels named “Eye Spy”, “Fantasea Freedom”, “Fantasea Dreaming”, “Ocean Flyer”, “Ocean Adventurer”, “Ocean Surfer”, “Ocean Wave”, “Ocean Tracker”, “Ocean Dreaming 2”, and “Ocean Rider”.[58] These vessels were commercially surveyed catamarans, and were of two sizes. The smaller vessels were 24 metres in length, and carried a maximum of 260 passengers. The larger vessels were 33 metres in length, and could carry a maximum of 396 passengers.[59]

    [56] Affidavit of B T Chippindale 27.04.2021, [7], [8]

    [57] Affidavit of B T Chippindale 27.04.2021, [8]

    [58] Affidavit of B T Chippindale 27.04.2021, [9]

    [59] Affidavit of B T Chippindale 27.04.2021, [10]

    MFFF service

22. According to Mr Chippindale, there was a second ferry service Noorton provided, which was known as the “Manly Fast Ferry Flyer Service” (MFFF service). Mr Chippindale says that the MFFF service was exactly the same as the MFF service, except that it was known by all employees that Mr Ford had instructed the master to do the services in 20, rather than 18, minutes.[60]

    [60] Affidavit of B T Chippindale 27.04.2021, [11]

    Hopper service

23. A third service was known as the “Sydney Harbour Eco Hopper” (Hopper service).[61] According to Mr Chippindale:

    (a)The service ran from the Sydney Aquarium to Circular Quay, then to Taronga Zoo (via Fort Denison), to Watsons Bay, and then to Manly via the Quarantine Station; and the run would be reversed from Manly. A trip on the Hopper service would take approximately 120 minutes.

    (b)To this there was added a run from Rose Bay to Watsons Bay to Manly, and this was known as the “Beaches Run”.[62] A trip on the Beaches Run would take approximately 45 minutes.

    (c)The Hopper service operated outside of peak commuting hours, and ran seven days a week, and the Beaches Run operated on Saturdays, Sundays, and public holidays.

    (d)The Hopper service ran to a timetable that was available on the MFF website.

    (e)Payment for the Hopper service was by pre-booking tickets, or by purchasing them on board, or by Opal Card.

    (f)Noorton provided the Hopper service and the Beaches Run using “Seacat 1” and “Seacat 2”, both of which are commercially surveyed catamarans of approximately 18 metres in length with a seating capacity of approximately 148 people.[63]

    [61] Affidavit R I Ford 02.07.2021, [16(a)]

    [62] Affidavit of B T Chippindale 27.04.2021, [12]-[14]

    [63] Affidavit of B T Chippindale 27.04.2021, [14]-[16]

24. According to Mr Ford:

    (a)The Hopper service was a “hop on/hop off harbour sightseeing service from Darling Harbour to Manly calling at various locations around Sydney Harbour, including Taronga Zoo, Sydney Aquarium, Luna Park, Watsons Bay Q Station and Fort Denison”; and that, on the weekends, “there was an additional Harbour Beaches hop on/hop off sightseeing service doing a loop between Manly, Rose Bay, and Watsons Bay”.[64]

    (b)There were four Hopper services.

    (i)Hopper 1 and Hopper 2 were both hop on and hop off sightseeing services travelling between nine stops around the harbour on a two hour loop.[65]

    (ii)Hopper 3 was a hop on and hop off sightseeing service travelling 3 stops on a city loop between Darling Harbour, Circular Quay, and Taronga Zoo on a one hour loop.[66]

    (iii)Hopper 4 operated on Saturdays and Sundays. The vessel operated one city loop, and then a harbour beaches loop from Manly, Rose Bay, and Watsons Bay.[67]

    (c)For each of the Hopper services, information was provided to passengers on board about points of interest, history, and key sights on Sydney Harbour. That was done either by the master or by a GPH reading a script over the public address system, or by playing pre-recorded messages at designated points in the sightseeing loop.[68] Mr Chippindale disputes this. He says no script was prepared; and no employees had been provided with any training on providing information to passengers. A pre-recorded message was, however, prepared by an employee on his own initiative.[69]

    (d)There were a number of different packages involving the use of the Hopper service. These were a one hour sightseeing harbour loop, a two hour sightseeing loop, a 24 hour and 48 hour access to a hop on and hop off vessel, a Circular Quay to Taronga Zoo return trip, and a Taronga Zoo entry and hop on and hop off sightseeing trip.[70]

    [64] Affidavit R I Ford 02.07.2021, [16(a)]

    [65] Affidavit R I Ford 02.07.2021, [22]

    [66] Affidavit R I Ford 02.07.2021, [23]

    [67] Affidavit R I Ford 02.07.2021, [24]

    [68] Affidavit R I Ford 02.07.2021, [27]

    [69] Affidavit of B T Chippindale 05.08.2021, [6]

    [70] Affidavit R I Ford 02.07.2021, [28]

25. Mr Ford provided evidence about the volume of sales of the different classes of tickets Noorton sold in relation to the Hopper service. Mr Ford said that during the “relevant period” (namely, the “Employment Period”) Noorton operated an electronic point of sale ticketing system which recorded the number and type of tickets purchased on the Hopper service. In around March 2019 Mr Ford reviewed the ticket information recorded in its ticketing system for the period 1 July 2016 to 1 July 2017. On the basis of that analysis Mr Ford found that 162,377 tickets had been purchased for the Hopper service, and that over 90% of the tickets sold fell within the following categories:[71]

    (a)4,114 were for the one hour sightseeing harbour loop/city loop;

    (b)10,842 were for the two hour boat sightseeing loop, starting from any of the departure points;

    (c)55,219 were for 48 hour access to hop on/hop off a sightseeing vessel;

    (d)12,217 were for Circular Quay to Taronga Zoo return;

    (e)60,306 were for Taringa Zoo - entry and hop on/hop off; and

    (f)4,859 combined one of the above with entry to a tourist attraction located at or near the nine stops around the harbour.

    [71] Affidavit R I Ford 02.07.2021, [30], [31]

1. The balance of the tickets in relation to the Hopper service were single journeys (point to point) or return journeys between two points but having to travel via the designated loops not necessarily directly between the two points. The ticket prices were $9 one way and $15 return. Only 3,501 or 2% of tickets purchased for the Hopper service in this 12 month period were point to point (or “single” journey) tickets.

   MDH service

2. There is a fourth ferry service (MDH service) which Mr Chippindale describes as the “Darling Harbour Service”,[72] and which Mr Ford describes as the “Manly to Sydney Aquarium/Darling Harbour AM and PM peak hour commuter service”. According to Mr Chippindale:

   (a)The MDH service consisted of passage from Manly to North Sydney, to Pyrmont Bay, to Sydney Aquarium, and then return directly to Manly.

   (b)The MDH service operated Monday to Friday during peak commuting hours only. A trip on the MDH service took approximately 45 minutes. Noorton provided the MDH service by use of “Seacat 1” and “Seacat 2”, and occasionally by “Arafura Pearl”, “Ocean Wave” or “Ocean Tracker”.[73]

   [72] Affidavit of B T Chippindale 27.04.2021, [17]

   [73] Affidavit of B T Chippindale 27.04.2021, [17]-[20]

   Whale watching cruises

3. According to Mr Ford, Noorton conducted whale watching cruises. Subject to appropriate weather conditions, Noorton operated whale watching cruises every day between May and November. During that period, Noorton generally operated two services every day, one in the morning, and one in the afternoon for approximately four hours each.[74]

   [74] Affidavit R I Ford 02.07.2021, [16(c)]

   Charter services and special event cruises

4. In addition to these ferry services Noorton operated charter services.[75] According to Mr Ford, Noorton conducted charters for weddings, family, business, and other functions, and transfer charter services.[76] Mr Ford also says that Noorton conducted special event cruises for events such as New Year’s Eve, the Sydney to Hobart yacht race, Australia Day, and Vivid.[77]

   [75] Affidavit of B T Chippindale 27.04.2021, [21]-[25]

   [76] Affidavit R I Ford 02.07.2021, [16(d)]

   [77] Affidavit R I Ford 02.07.2021, [16(e)]

   VESSELS BY WHICH NOORTON PROVIDED SERVICES

5. From March 2016 until the end of the Employment Period, Noorton had ten vessels, nine of which were regularly in service, and one was a spare. The spare was used on the weekends for the Beaches Run, and was otherwise used when a vessel was out of service because of a breakdown or required maintenance.[78] Noorton's vessels were generally engaged throughout this period as follows:

   [78] Affidavit R I Ford 02.07.2021, [17]

   (a)three vessels were engaged exclusively on the MFF service seven days per week;

   (b)an additional two vessels were engaged on the MFF service for approximately five and a half hours per vessel per day spread across the morning and afternoon peak periods as follows:

   (i)6:45 am to 9:30 am Monday to Friday; and

   (ii)4:45 pm to 7:30 pm Monday to Friday;

   (c)during off peak periods these two vessels were generally used as follows:

   (i)one was predominantly used as a back-up for the MFF service to cover for vessel maintenance or breakdowns across the fleet; or for charters; or for the Hopper service in between the peak periods;

   (ii)one was used for whale watching cruises for the balance of the day in between the peak hours for approximately eight hours a day from May to November each year; and during the whale watching season, this vessel would operate more hours on whale watching than on the MFF service during the peak periods;

   (d)three vessels operated the MDH service in the morning and afternoon peak hour periods on Monday to Friday, and were vessels otherwise engaged in the Hopper service;

   (e)one vessel was dedicated to whale watching and charters; and

   (f)all vessels were available to undertake charters and special events.

6. According to Mr Ford, from May 2015 to March 2016 Noorton operated only eight vessels in total, all of which were regularly in service subject to any breakdown, or maintenance requirements. For this period, Noorton ran with these eight vessels the same services as it did after March 2016 with ten vessels, but in April 2015 to March 2016 it devoted only two vessels to the MFF service.[79] Mr Ford further says:[80]

   We could use vessels interchangeably on all services depending on the season or the operational needs of the business. However, some vessels were more suited to certain types of work. For example, as described above Totally Wild was generally only used for whale watching. In December 2015 and March 2016 we received four new vessels, two of which were specifically designed for and best suited to the MFF service. The other two new vessels were tourism vessels and included viewing decks on the top levels that tourists could access and were predominantly used for whale watching and the Hopper services.

   [79] Affidavit R I Ford 02.07.2021, [18]

   [80] Affidavit R I Ford 02.07.2021, [19]

7. In evidence given under cross-examination Mr Chippindale agreed that any given vessel Noorton operated was being deployed for different services.[81]

   WORK PERFORMED BY MR CHIPPINDALE

   [81] T40.10

   Commencement of employment

8. In around April or early May 2015 Mr Chippindale became aware that Noorton had been awarded the contract to provide the MFF service, and was seeking to employ deckhands on that service.[82] Mr Chippindale telephoned Noorton and spoke with Mr McKesser, who confirmed to Mr Chippindale that Noorton was looking for deckhands, and he said he would send an email to Mr Chippindale. Mr McKesser sent to Mr Chippindale an email containing login details to a system known as “easyemployer”. Mr Chippindale logged into the system and accessed the shifts he was to work, commencing on 25 May 2015.[83]

   [82] Affidavit of B T Chippindale 27.04.2021, [29]

   [83] Affidavit of B T Chippindale 27.04.2021, [31]

   Work as a GPH

9. On commencing his employment with Noorton Mr Chippindale received training as a GPH on various vessels for one week.[84] According to Mr Chippindale, his duties as a GPH consisted of maintaining safe passage and boarding and disembarking of passengers; securing the vessel on arrival to a jetty, and untying the vessel on departure; assisting the master by maintaining navigational watch whilst underway; performing security and safety “walkarounds”; providing first aid assistance when required; cleaning; and counting passengers.[85] According to Mr Ford, the duties of a GPH consisted of: (a) the service, hospitality, and entertainment of passengers; (b) preparing the vessel for departure; (c) selling food and beverages to passengers; (d) the stocking and responsible service of alcohol on board to passengers; (e) the preparation of meals on charters; (f) completing stock lists for the ordering of stores; (g) performing duties as required by the master; (h) securing vessels to wharves or berths using lines; (i) boarding and disembarking passengers; (j) ticket and money handling; and (k) general housekeeping of vessel.[86]

   [84] T39.10

   [85] Affidavit of B T Chippindale 27.04.2021, [44]

   [86] Affidavit R I Ford 02.07.2021, [41]

10. Within the first two weeks of his employment Mr Chippindale understood that he was being employed by Noorton to work as a GPH on such vessels, and on such services, as Noorton would direct him from time to time;[87] that was the way it worked out during Mr Chippindale’s employment with Noorton;[88] and that, from the outset of his employment, officers of Noorton told him that Mr Chippindale would be required to work on a vessel as directed by them, and on such services as they determined.[89] Noorton communicated this information to Mr Chippindale by regularly publishing rosters.[90]

    [87] T42.20

    [88] T42.25

    [89] T43.15

    [90] T43.35

    Work as a master

11. By early 2017 Mr Chippindale had acquired the qualifications of “Master 24” and “Marine Engine Driver Grade 2”. Mr Chippindale then worked both as a master and as a deckhand, and by the end of 2017 he was solely performing work as a master.[91] According to Mr Chippindale, his duties as a master consisted of safely navigating vessels, being in charge of the vessel and crew; checking the engine room; monitoring all safety equipment, and ensuring the vessel met survey requirements.[92]

    [91] Affidavit of B T Chippindale 27.04.2021, [46]

    [92] Affidavit of B T Chippindale 27.04.2021, [47]

12. According to Mr Ford, the duties of a master consisted of: (a) ensuring the safe operation of vessels in and around Sydney Harbour and outside Sydney Harbour; (b) entertaining passengers, including providing commentary during tours; (c) performing routine and preventative maintenance as required; (d) safe management, supervision, and direction of crew and overseeing delivery of customer service; (e) ensuring seaworthiness and compliance of vessel; (f) adhering to schedule of relevant service; (g) reporting incidents and hazards and managing operational risks; (h) monitoring machinery performance and performing appropriate start-up and shut down checks; and (i) overseeing appropriate housekeeping of vessel.[93]

    [93] Affidavit R I Ford 02.07.2021, [42]

    Course of work

13. According to Mr Chippindale, ordinarily Noorton allocated Mr Chippindale to work on a single vessel in a day.[94] In the course of the day, however, Mr Chippindale could have been allocated to work on another vessel. For example, he would be allocated to begin work on the MFF service, and then be directed on the same day into a whale watching service. Another typical working day involved Mr Chippindale working approximately three and a half to four and a half hours on the MFF service or the MDH service, and then be allocated to work for between three and a half and four and a half hours on the “Flyer or Hopper services”. There were some days, however, that Mr Chippindale worked on the MFF service for the entire day.[95] Mr Chippindale did not have control over the allocation of his shifts, or the vessels on which he worked; the allocations “were entirely at the direction of Noorton”.[96]

    [94] Affidavit of B T Chippindale 27.04.2021, [26]

    [95] Affidavit of B T Chippindale 27.04.2021, [26], [28]

    [96] Affidavit of B T Chippindale 27.04.2021, [27]

14. From time to time Mr Chippindale performed work on Noorton’s whale watching cruises, ordinarily on the vessel “Ocean Dreaming 2”. He would usually perform such work after working on the MFF service from 5:30 am to 9:15 am, and then work on the “whale watching cruise between 9:15 am and 12:45 pm”. Otherwise, Mr Chippindale performed work on whale watching cruises from 12:30 pm to 5:15 pm after which he would work on the MFF service from 5:15 pm to 9:30 pm.[97] Mr Chippindale also worked two shifts on charters on 6 June 2015 and 14 June 2018 for 6.5 hours and 5.5 hours respectively.[98]

    [97] Affidavit of B T Chippindale 27.04.2021, [21]-[24]

    [98] Affidavit of B T Chippindale 27.04.2021, [25]

15. Mr Ford exhibited to his affidavit a spreadsheet repeating information Mr Chippindale had recorded in timesheets Mr Chippindale submitted in 2015, 2016, 2017, and 2018.[99] The spreadsheet was prepared in around November 2018 by Noorton’s operations manager exporting data relating to Mr Chippindale that had been recorded and preserved in Noorton’s rostering and time and attendance software system. That software system was called “Easy Employer”. It required employees to record their start and finish times, and the services to be performed by each employee on each shift. The spreadsheet shows that on 24 February 2017 Mr Chippindale commenced working shifts as a master, in addition to shifts he worked as a GPH; and Mr Chippindale worked solely as a master from 16 August 2017.

    WHICH INSTRUMENT(S) APPLIED TO MR CHIPPINDALE’S WORK?

    [99] Exhibit 1. Pursuant to leave I granted at the hearing, on 29 September 2021 Noorton’s lawyers sent to my associate a document titled “Respondent’s Analysis of Exhibit 1”. I have marked that document in chambers as “MFI1”.

    Parties’ submissions

16. The applicants, in their written submissions, submit that, although Mr Chippindale from time to time worked on “commercial vessels”, that is, on vessels that were used “as a tourist, sightseeing or cruise vessel and/or as a place of or for entertainment, functions or restaurant purposes”, he was engaged ostensibly on vessels that did not have a tourist, sightseeing purpose, and which were not places of entertainment, functions or restaurants.[100] The applicants further submit that Mr Chippindale “worked on vessels which fell within the broader definition in the [PHE] Award of vessels of any type wholly or substantially within a port, harbour or other body of water”.[101]

    [100] Applicants’ Outline of Submissions in Reply, [5]

    [101] Applicants’ Outline of Submissions in Reply, [6]

17. More particularly, the applicants submit:

    (a)The services Noorton operated were for the purpose of providing ferry services in and around Sydney Harbour.[102]

    (b)The MFF service was a ferry service because it operated pursuant to a contract with the NSWG, and was defined as a public passenger service pursuant to the 2014 PT Act.[103]

    (c)The MDH service was a ferry service because: Mr Ford described it as a “commuter service” in his affidavit; it operated Monday to Friday; and it ran at a reduced capacity over the Christmas and New Year period.[104]

    (d)The Hopper service was a ferry service because it ran as an alternative to the MDH service in off peak periods on weekdays, Saturdays, and Sundays; and tickets were purchased by a number of methods, including the NSWG’s Opal Card system, being the electronic ticketing system used for public transport in New South Wales.[105]

    [102] Applicants’ Outline of Submissions in Reply, [7]

    [103] Applicants’ Outline of Submissions in Reply, [8]

    [104] Applicants’ Outline of Submissions in Reply, [10]

    [105] Applicants’ Outline of Submissions in Reply, [15], [16]

18. Noorton, in its written submissions, submits as follows:

    (a)The issue of construction is whether Mr Chippindale, as an employee of Noorton was “engaged either on board a Commercial vessel or in connection” with such a vessel as a GPH or as a master.[106] More particularly, it turns, at least to a significant extent, on the construction of “engaged” when read with the expressions “on board”, and “in connection with”.[107]

    [106] Respondent’s Outline of Submissions, [7]

    [107] Respondent’s Outline of Submissions, [12], [13], [17]

    (b)In its ordinary usage, “engaged”, when used in relation to a person, is capable of carrying two relevant meanings. One is the person’s undertaking or performing a task or tasks.[108] Another is a person’s having bound himself or herself under a contract to undertake or perform a task or tasks.[109]

    [108] Respondent’s Outline of Submissions, [14]

    [109] Respondent’s Outline of Submissions, [15]

    (c)Given the two meanings of “engaged”, there are two possible approaches to construction:[110]

    [110] Respondent’s Outline of Submissions, [19]

    (i)Mr Chippindale would be covered by the GPH and 2009 Masters agreements if he performed work from time to time on board of at least one of Noorton’s commercial vessels, or in connection with at least one of them; or

    (ii)Noorton employed Mr Chippindale to perform work, at least in part, on at least one of Noorton’s commercial vessels or in connection with at least one of them.

    (d)It is “not in dispute that the relevant employee could be covered by more than one instrument or have it apply to him or her. Once the Workplace Agreements [that is, the GPH and 2009 Masters agreements] applied to Mr Chippindale, no other instrument could apply”.[111]

    [111] Respondent’s Outline of Submissions, [21]

    (e)On either construction Mr Chippindale is covered by the GPH and 2009 Masters agreements. On the first construction, the evidence shows that the majority of Noorton’s vessels are commercial vessels engaged as tourist, sightseeing, or cruise vessels;[112] and the applicants concede that some of the vessels were engaged as “commercial vessels” within the meaning of each of the agreements:[113]

    [112] Respondent’s Outline of Submissions, [25]

    [113] Respondent’s Outline of Submissions, [27]

    This concession is sufficient to dispose of their contentions that the [GPH and 2009 Masters agreements] did not apply. That is because by these concessions, as is evident from the evidence, Mr Chippindale did work on board commercial vessels. It follows that the [GPH and 2009 Masters agreements] applied to him. The statutory context and regime does not permit of Mr Chippindale dipping in and out of the coverage of the [GPH and 2009 Masters agreements]; once they applied, they applied for all purposes.

    (f)On the second construction, the evidence shows that Mr Chippindale was employed to perform work from time to time on commercial vessels, or in connection with them. Once it is accepted that part of Mr Chippindale’s employment was to work on board commercial vessels or in connection with them, he was caught by the GPH and 2009 Masters agreements.[114]

    [114] Respondent’s Outline of Submissions, [31]

    (g)Further, the majority of Noorton’s vessels were operated as “commercial vessels”.[115] Noorton relies on the following matters:

    [115] Respondent’s Outline of Submissions, [41]

    (i)In the relevant period Noorton provided “non-commuter tourism services”, these being the Hopper service (including the Beaches Run), the whale watching cruises, and charters for particular or special events or transfer services.[116]

    [116] Respondent’s Outline of Submissions, [35]

    (ii)Of the ten vessels Noorton operated, only three vessels were engaged exclusively on the MFF service, with more than 20% of passengers being carried during the off peak, non-commuter hours of 10 am to 4 pm Monday to Friday and weekends.[117]

    [117] Respondent’s Outline of Submissions, [37]

    (iii)Of the remaining vessels:

    (A)three were engaged to operate the “AM and PM peak hour periods Monday to Friday but were otherwise engaged in the Hopper services for the majority of their hours”; and those vessels carried far more passengers on the Hopper service and Beaches Run than on the MDH service on a daily average basis in the relevant period;[118]

    (B)two vessels were used for the MFF service but were used either to cover maintenance or breakdowns across the fleet, or for other tourist and sightseeing services in the off peak periods, including charters;[119]

    (C)one vessel was used exclusively for whale watching and charters;[120] and

    (D)all vessels from time to time would do charters and special events.[121]

    (iv)That the MFF service, the MDH service, and the Hopper service were run on dedicated timetables does not mean that the vessel is not engaged as a tourist, sightseeing or cruise vessel,[122] a generalised proposition which the Full Bench of the Fair Work Commission (FWCFB) has rejected.[123]

    (h)Finally, if the GPH or the 2009 Masters agreements do not apply, Noorton is bound by the MTC Award because, on the basis of the matters set out in (g), Noorton is “in the Marine Tourism and Charter Vessels Industry” within the meaning of cl 4.1 of the MTC Award and, for that reason, cl 4.1(g) of the PHE Award excludes that award from applying to Noorton.[124] Noorton particularly relies on the decision of the FWCFB in Construction, Forestry, Maritime, Mining and Energy Union v Fantasea Pty Limited; The Australian Maritime Officers’ Union.[125]

    [118] Respondent’s Outline of Submissions, [38(a)]

    [119] Respondent’s Outline of Submissions, [38(b)]

    [120] Respondent’s Outline of Submissions, [38(c)]

    [121] Respondent’s Outline of Submissions, [38(d)]

    [122] Respondent’s Outline of Submissions, [40]

    [123] Construction, Forestry, Maritime, Mining and Energy Union v Fantasea Pty Limited; The Australian Maritime Officers’ Union [2020] FWCFB 4443, at [28]

    [124] Respondent’s Outline of Submissions, [42]-[50]

    [125] Construction, Forestry, Maritime, Mining and Energy Union v Fantasea Pty Limited; The Australian Maritime Officers’ Union [2020] FWCFB 4443

    ISSUES

1. “Engaged”, therefore, when used in cl 2.1 of the GPH and 2009 Masters agreements in relation to a GPH or a master, means a master or a GPH having been directed by Noorton to perform work as a GPH or as a master on board or in relation to a commercial vessel; and, as a consequence of performing the work, becoming entitled to be paid for the work according to the rates provided for by the relevant agreement. That, in turn, means that the GPH and 2009 Masters agreements would have applied to Mr Chippindale during the Employment Period to the extent Noorton directed him to work on board or in relation to a “commercial vessel” as a GPH or as a master, and Mr Chippindale performed the work. It is therefore not the case, as Noorton submits, that Mr Chippindale became once and for all bound by the GPH agreement when he first was engaged as a GPH on board or in relation to a “commercial vessel”, and he was bound once and for all by the 2009 Masters agreement, when he was first engaged as a master on board or in relation to a “commercial vessel”; and he remained so bound in relation to any vessel, commercial or not, on which Noorton may have subsequently engaged Mr Chippindale to work.

2. Before I leave this section of my reasons, it would be convenient to refer to the submission counsel for Noorton made in oral address; that the purpose of each of the GPH and 2009 Masters agreements was that “only one instrument would be in place in respect of an employee”, and this was “consistent with the statutory purpose”.[153] I do not accept that submission. Noorton itself made two agreements, and its wholly owned subsidiary MFF made a separate agreement. Further, the GPH and 2009 Masters agreements excluded only one award - the MCV State Award - from applying whereas the MFF/MUA agreement excluded a different award from applying, and only in relation to three classes of employees that did not include a master. As I will later show in greater detail, the statutory and factual context in which these agreements were made reveal that the work performed by a GPH and a master were governed by different conditions depending on whether the GPH or master was engaged on board or in connection with a “commercial vessel”, as defined in cl 6 of each of the GPH and 2009 Masters agreements, or whether the GPH or master was engaged on a passenger ferry.

   [153] T154.10

   Meaning of “commercial vessel”

3. Next, it is necessary to construe the definition of “commercial vessel” given by cl 6 of each of the GPH and 2009 Masters agreements. I have already reproduced the text of cl 6, but it would be convenient to again reproduce it here:

   6.1. “Commercial vessel” means a vessel engaged wholly or principally within the limits of bays, harbours and rivers as a tourist, sightseeing or cruise vessel and/or as a place of or for entertainment, functions or restaurant purposes. A Commercial vessel may also be taken to include those vessels engaged in the above activities which operate up to 15 nautical miles off shore.

   6.2. Further to 6.1, a Commercial vessel may include those vessels which provide overnight accommodation during the operation of their business.

4. There are a number of matters of context that are relevant to construing cl 6 of each of the GPH and 2009 Masters agreements.

   (a)First, although the parties have treated Noorton as having provided the services Noorton and MFF separately provided during the Employment Period, it is the case that Noorton and MFF submitted separate agreements to the WA. Noorton submitted two - the GPH and 2009 Masters agreements; and MFF submitted one - the MFF/MUA agreement.

   (b)Second, in each of the Employer Declaration Forms Noorton submitted to the WA with the GPH and 2009 Masters agreements, Noorton described its activities as “charter cruises”, and stated that it carried out those activities in the “[a]rts and recreation services” industry. In the Employer Declaration Form MFF submitted to the WA in relation to the MFF/MUA agreement, on the other hand, MFF described its activities as “ferry operations”, and stated that it carried out those activities in the “[t]ransport, postal and warehousing” industry.

   (c)Third, each agreement Noorton and MFF submitted to the WA purported to cover different classes of employee, or the same class of employee but at different rates and different hours.

   (i)The GPH agreement covered only one class of employee, the GPH; and it provided for an hourly rate of $15.05 for weekly employees, and an hourly rate of $18.06 for casual employees. Further, cl 10.2 provided that full time weekly employees’ ordinary hours would be worked “between the spread of hours of 7.00 a.m. on one day and 2.00 a.m. on the next day”.

   (ii)The MFF/MUA agreement covered GPHs as well; but it provided for different rates of payment - $21.50 for a weekly employee (as compared with the $15.05 under the GPH agreement), and $26.80 for a casual employee (as compared with $18.06 payable under the GPH agreement). It also provided different required hours. Clause 14.4 provided that a working day would consist of not less than six consecutive hours and not more than 11 consecutive hours, except by arrangement of the parties; the MFF/MUA agreement did not require that ordinary hours would be worked “between the spread of hours of 7.00 a.m. on one day and 2.00 a.m. on the next day”.

   (iii)The 2009 Masters agreement applied to employees engaged as masters, engineers, and coxswains. The MFF/MUA agreement, however, did not include masters, engineers, or coxswains who worked in relation to “a passenger ferry on Sydney Harbour on runs between Circular Quay and Manly Jetty”.

   (d)Fourth, the GPH and 2009 Masters agreements were prepared on the basis that, but for the coming into effect of those agreements, Noorton and the employees who were to be engaged as masters and engineers would be covered by the MCV State Award; and the MFF/MUA agreement was prepared on the basis that, but for the coming into effect of the MFF/MUA agreement, MFF and the employees who were covered by that agreement would be covered by the MF State Award. Further, given that the MFF/MUA agreement did not include masters, it is reasonable to infer that persons in the position of MFF and Noorton and the employees who approved the agreement, would have known at the time MFF submitted the MFF/MUA agreement to the WA that the MF State Award would apply to masters whom MFF were to employ in connection with the work specified in cl 3 of the MFF/MUA agreement, namely, “work on board a vessel or in connection with a vessel operating as a passenger ferry on Sydney Harbour on runs between Circular Quay and Manly Jetty”.

5. These matters show that the conditions that governed the work masters and GPHs would be engaged to perform on board or in relation to the vessels to which the GPH and 2009 Masters agreements applied would be different from the conditions that governed the work masters and GPHs would be engaged to perform on board or in relation to vessels to which the MFF/MUA agreement applied. The factor that would have determined which set of conditions applied is the nature and use of the vessel on board of which or in relation to which a master or a GPH would be engaged to perform work.

   (a)If the vessel were to be a “commercial vessel”, as defined in cl 6 of each of the GPH and 2009 Masters agreements:

   (i)the work a GPH would perform when engaged on board or in relation to such vessel would be governed by the terms of the GPH agreement; and

   (ii)the work a master would perform when engaged on board or in relation to such vessel would be governed by the terms of the 2009 Masters agreement.

   (b)If the vessel were to be “a passenger ferry on Sydney Harbour on runs between Circular Quay and Manly Jetty”:

   (i)the work a GPH would perform when engaged in or in relation to such vessel would be governed by the terms of the MFF/MUA agreement; and

   (ii)the work a master would perform when engaged in or in relation to such vessel would be governed by the terms of the MF State Award.

6. The MF State Award would have governed the conditions of the work a master would perform on “a passenger ferry on Sydney Harbour on runs between Circular Quay and Manly Jetty” because the MFF/MUA agreement did not cover masters; and the MF State Award then covered employees, including masters, employed in and in connection with any motor ferry used in any regular ferry passenger work.

7. That, then, leads me to the construction of the meaning of “commercial vessel” itself given by cl 6 of each of the GPH and 2009 Masters agreements. Noorton did not make any submission about the meaning of “commercial vessel” on the basis of a construction of the text of cl 6; and Noorton did not refer, at least not in any systematic way, to matters that are or may be relevant to identifying the context by reference to which the text of the GPH and 2009 Masters agreements are to be construed. Instead, Noorton relied, first, on the FWCFB’s rejection in Fantasea of the proposition that the operation of a vessel on a timetable which transports passengers from one location to another engages what I have earlier referred to as the cl 3.1 exclusion; and, second, on matters (which I have set out in paragraph 83(g) of these reasons) that Noorton submitted tended to show the vessels on which Mr Chippendale worked as a GPH and then as a master were to a large extent used for the purpose of tourist activities and, for that reason, were “commercial vessels”. There are a number of difficulties with this approach.

   (a)First, I have respectfully concluded that the FWCFB is wrong in its construction of the cl 3.1 exclusion.

   (b)Second, Noorton’s approach is premised on the view that whether the GPH and 2009 Masters agreements applied to Mr Chippindale’s engagement as a GPH and a master is to be determined by viewing Noorton’s operations as a whole and determining whether, in substantial part, its activities consisted in the operation of tourist activities. Noorton’s approach, however, cannot be justified by the text of the agreements because they apply to an employee’s engagement as a GPH or a master on board or in relation to a commercial vessel. The terms of each agreement apply only to the extent there is any such engagement; they are not engaged by reference to the substantial character of Noorton’s business.

   (c)Third, I am not satisfied that Noorton has put forward all evidence that it is reasonable to suppose is available to it to establish that a substantial part of its activities relate to tourism. One particular omission is the revenues from an activity that cannot reasonably be characterised as tourism, namely, the MFF service, and the proportion these revenues bear to Noorton’s total revenues from the operation of all of its services.[154]

   [154] Compare the evidence and contentions that Noorton apparently advanced before the FWC in Noorton Pty Ltd t/a Manly Fast Ferry [2018] FWCA 4521. For example, [87] records a submission that Noorton’s “business has more than one character operating in more than one industry – ferry industry (65%) and marine tourism (35%)”.

8. I therefore do not accept Noorton’s submissions to the extent they have been advanced to elucidate the meaning of “commercial vessel” given by cl 6 of the GPH and 2009 Masters agreements. What, then, is the meaning of “commercial vessel”?

9. The most direct route to identifying the meaning of cl 6 of the GPH and 2009 Masters agreements are the matters of context I have already identified. These unambiguously identify what cl 6 cannot be taken to have included. At the very least cl 6 did not include “a passenger ferry on Sydney Harbour on runs between Circular Quay and Manly Jetty”; and, more broadly, cl 6 did not include the vessels to which the MF State Award applied, namely, “motor ferr[ies] used in any regular ferry passenger work”.[155] If Noorton and the employees who made the GPH and 2009 Masters agreements intended those agreements to apply to the engagement of masters and GPHs on board or in relation to “motor ferr[ies] used in any regular ferry passenger work”, they would have included words that identified such ferries as vessels to which the agreements were intended to apply. Instead, work done in relation to motor ferries was the subject of a separate agreement, the MFF/MUA agreement. Moreover, Noorton and the employees would have included in cl 7.1 of each agreement that the terms and conditions of the GPH and 2009 Masters agreements were intended to replace were the terms and conditions of not only the MCV State Award (which did not apply to “motor ferr[ies] used in any regular ferry passenger work”), but also the MF State Award (which did so apply).

   [155] MF State Award, cl 26.1

10. Identifying what cl 6 of each of the GPH and 2009 Masters agreements did not include does not identify what it did include. That is to be determined by reference to the text of cl 6. It required that the vessel be “engaged”; that it be “engaged wholly or principally within the limits of bays, harbours and rivers”; and that the vessel must be engaged “as” a “tourist, sightseeing or cruise vessel”; or “as” a “place of or for entertainment, functions or restaurant purposes”. In that context, “engaged”, in relation to a vessel, suggests the vessel’s having been hired or otherwise secured to be available “as” a “tourist, sightseeing or cruise vessel”; or “as” a “place of or for entertainment, functions or restaurant purposes”. This does not cover the act of a person buying a ticket to secure a place on a vessel that is used in regular ferry passenger work: a person who buys a ticket to secure a place on such a vessel cannot as a matter of ordinary language be said to have “engaged” the vessel.

11. That “engage” when used in relation to a vessel means “hiring or otherwise securing” the vessel is supported by cl 6 repeating (with the modifications I identified earlier in these reasons) the definition of “charter vessel” contained in cl 2(i) of the MCV State Award. I have already noted that “charter”, when used in connection with a vessel, ordinarily means the hiring out of a vessel by its owner or possessor to another person for a specified time or for a specified purpose or both.

    Determination

12. I now consider the extent to which the GPH agreement or the 2009 Masters agreement covered the work Mr Chippindale performed as a GPH and then as a master on vessels Noorton operated.

    Mr Chippindale’s work as a master in relation to the MFF service

13. The 2009 Masters agreement was incapable of applying to Mr Chippindale to the extent he was engaged to perform the work of a master in relation to the MFF service. That is because each of the vessels on which Mr Chippindale had been engaged as master in connection with the MFF service was “a passenger ferry on Sydney Harbour on runs between Circular Quay and Manly Jetty”; and the 2009 Masters agreement did not include in its definition of “commercial vessel” such passenger ferry or a “ferry used in any regular ferry passenger work”. That is plain from the MFF/MUA agreement itself. Further, the evidence does not suggest that any vessel used in the MFF service on which Mr Chippindale had been engaged as master had used, or had been hired or otherwise secured to be available, “as” a “tourist, sightseeing or cruise vessel” or “as” a “place of or for entertainment, functions or restaurant purposes”.

14. That means that Noorton and Mr Chippindale were covered by the PHE Award to the extent Mr Chippindale performed the work of a master on board or in relation to a vessel by which Noorton operated the MFF service.

    Mr Chippindale’s work as a GPH in relation to the MFF service

15. By the time Mr Chippendale commenced his employment with Noorton, MFF was responsible for providing the MFF service, but it did so using Noorton’s employees Noorton provided to MFF. Given, then, that Mr Chippendale was engaged as a GPH on vessels MFF used in relation to the MFF service as an employee of Noorton, and Noorton was not a party to the MFF/MUA agreement, that agreement, to the extent it applied to a GPH, did not apply to the work Mr Chippindale performed in relation to the MFF service as a GPH.

16. The GPH agreement also did not apply to the work Mr Chippindale performed as a GPH on board or in relation to a vessel used in the MFF service. Each of the vessels on which Mr Chippindale had been engaged as a GPH in connection with the MFF service was “a passenger ferry on Sydney Harbour on runs between Circular Quay and Manly Jetty”; and the GPH agreement did not include in its definition of “commercial vessel” such passenger ferry, or a “ferry used in any regular ferry passenger work”. Further, the evidence does not suggest that any vessel used in the MFF service on which Mr Chippindale had been engaged as a GPH had used, or had been hired or otherwise secured to be available, “as” a “tourist, sightseeing or cruise vessel” or “as” a “place of or for entertainment, functions or restaurant purposes”.

17. That means that Noorton and Mr Chippindale were covered by the PHE Award to the extent Mr Chippindale performed the work of a GPH on board or in relation to a vessel by which Noorton operated the MFF service.

    Mr Chippindale’s work as a GPH and master in relation to the MDH service

18. Whether Mr Chippindale’s work, first as a GPH, and then as master on board or in relation to vessels Noorton used in providing the MDH service turns, in the first instance, on whether the vessels by which the service was provided were ferries used in regular ferry passenger work. That question is capable of only being answered in the affirmative. The evidence shows the MDH service operated on a regular schedule to carry passengers. That the service was used for tourist purposes, or that Noorton promoted the service for tourist purposes is incapable of altering the character of the MDH service that consisted of being used in regular ferry passenger work.

19. Further, the evidence does not suggest that any of the vessels used in the MDH service had been engaged, that is, had been hired or otherwise secured to be available, “as” a “tourist, sightseeing or cruise vessel” or “as” a “place of or for entertainment, functions or restaurant purposes”.

20. That means that Noorton and Mr Chippindale were covered by the PHE Award to the extent Mr Chippindale performed the work of a GPH or a master on board or in relation to a vessel by which Noorton operated the MDH service.

    Mr Chippindale’s work as a GPH and master in relation to the Hopper service

21. The Hopper service consisted of the operation of vessels that carried passengers according to a regular schedule. The vessels used in the Hopper service, therefore, are ferries used in regular passenger work and, for that reason, do not fall within the definition of “commercial vessel” given by cl 6 of the GPH or 2009 Masters agreements. That the service was used for tourist purposes, or that Noorton promoted the service for tourist purposes is incapable of altering the character of the MDH service that consisted of vessels being used in regular ferry passenger work. Further, the evidence does not suggest that any of the vessels used in the Hopper service had been engaged, that is, had been hired or otherwise secured to be available, “as” a “tourist, sightseeing or cruise vessel” or “as” a “place of or for entertainment, functions or restaurant purposes”.

22. That means that Noorton and Mr Chippindale were covered by the PHE Award to the extent Mr Chippindale performed the work of a GPH or a master on board or in relation to a vessel by which Noorton operated the Hopper service.

    Mr Chippindale’s work as a GPH and master in relation to charter and special event services

23. The evidence about these services is somewhat sparse. I am nevertheless satisfied on what evidence there is that the vessels Noorton used in connection with those services had been engaged, that is, had been hired or otherwise secured to be available, “as” a “tourist, sightseeing or cruise vessel” or “as” a “place of or for entertainment, functions or restaurant purposes”. It follows, therefore, that the GPH and 2009 Masters agreements applied in relation to work Mr Chippindale performed as a GPH and master respectively on vessels Noorton used for its charter and special event services.

    Mr Chippindale’s work as a GPH and master in relation to whale watching services

1. The question whether the vessels Noorton used in connection with its whale watching services are commercial vessels is more difficult to determine. On the one hand, whale watching cannot be anything other than sightseeing because that is its only purpose. On the other hand, however, Noorton conducted the whale watching service on a regular schedule to carry passengers from May to November each year, weather permitting.

2. The word “purpose” does not appear in the definition of “commercial vessel” given by cl 6 of each of the GPH and 2009 Masters agreements. I have already concluded that cl 6 of each of the GPH and 2009 Masters agreements identifies a vessel as a commercial vessel by reference to its being “engaged” in the sense of being hired or otherwise secured to be available “as” a “tourist, sightseeing or cruise vessel” or “as” a “place of or for entertainment, functions or restaurant purposes”; and that, moreover, cl 6 does not include ferries being used in regular passenger work. Given that individual passengers secure the whale watching service individually by buying a ticket to the appropriate schedule time, it cannot be said that the vessels Noorton used for the whale watching services had been engaged by any one of the passengers “as” a “sightseeing . . . vessel”; and given that Noorton operated the vessels it used for whale watching according to a regular schedule, the vessels do not fall within the definition of “commercial vessel”.

3. It follows that the vessels Noorton used for whale watching were not “commercial vessels” within the meaning of cl 6 of the GPH and 2009 Masters agreements, and that Noorton and Mr Chippindale, therefore, were covered by the PHE Award to the extent Mr Chippindale performed the work of a GPH and a master on board or in relation to a vessel by which Noorton operated whale watching services.

   MR CHIPPINDALE’s UNDERPAYMENT CLAIMS

4. I now turn to the statement of claim. It first identifies each class of entitlement provided for under the PHE Award. These are minimum hourly rates of pay; Saturday and Sunday rates; shift allowances, meal allowances, and transport for a GPH engaged as a casual, and for a master engaged as a casual. Next, it specifies the amounts it alleges Mr Chippindale ought to have been paid on account of these entitlements. The statement of claim only states total amounts; but these amounts are based on calculations, as set out in a spreadsheet annexed to, and explained in, an affidavit made by Mr Garrett, a divisional deputy branch secretary of the CFMMEU. These amounts total $242,492.17.[156] Third, the statement of claim identifies the amounts it alleges Noorton paid to Mr Chippendale. Those total $204,435.69.[157] Thus, the applicants claim that Mr Chippindale was underpaid $38,056.48 in wages, being the difference between what Mr Garrett calculated were the amounts Noorton ought to have paid Mr Chippindale, and the amounts Noorton paid Mr Chippendale.[158] In evidence given under cross-examination, Mr Garrett accepted that he excluded from his analysis amounts Mr Chippindale was paid in connection with whale watching services.[159]

   [156] Affidavit of P Garrett 26.04.2021, [29]

   [157] Affidavit of P Garrett 26.04.2021, [28]

   [158] Affidavit of P Garrett 26.04.2021, [30]

   [159] T17.5

5. Noorton disputes these claims; Noorton submits Mr Chippindale was paid more than he was entitled to have been paid under the MTC Award and the PHE Award. That submission appears to be in large part based on the contention that Noorton provided Mr Chippindale with meal breaks for which he was paid, but Noorton did not pay to him a meal allowance.

   Noorton’s submissions of amounts paid as a whole

6. Mr Ford annexed to his affidavit a number of documents:

   (a)First, there is a spreadsheet containing the payslip data for Mr Chippendale for the pay period ending 7 June 2015 to the pay period ending 14 October 2018.[160]

   (b)Second, there is a spreadsheet which, using the data in the spreadsheet referred to in (a), contains the hourly rates Noorton paid to Mr Chippendale.[161] Mr Ford says the base rates were set having regard to the minimum base rates under the PHE Award, and under the GPH and 2009 Masters agreements; but that Noorton did not take into account the rates provided for by the PHE Award because of any legal position Noorton had taken about award coverage; Noorton did so because it considered this to be “an appropriate course at the time”.[162]

   (c)Third, Mr Ford annexes a summary of the total amounts Noorton paid to Mr Chippendale during the Employment Period. These amounts total $205,233.93.[163]

   (d)Fourth, Mr Ford annexes a spreadsheet prepared by a Mr Shaw that sets out the base rates for casual deckhands and masters under the MTC Award and the PHE Award from 2015 to 2018. These were prepared by reference to the historical pay guides for each award published by the Fair Work Ombudsman.[164]

   (e)Fifth, Mr Ford annexes a spreadsheet which replaces the base rates provided in the spreadsheet in (d) with the base rates payable under the MTC Award and the PHE Award.[165] Mr Ford says he removed from his analysis any payments for travel allowance, and for Saturday and Sunday penalties, and any other penalties. Mr Ford says he did so because he says he continued to apply the MFF/MUA agreement to employees who had been employed by MFF but who had been transferred to Noorton.[166] The schedule shows that Noorton had paid Mr Chippindale either $22,840.36 or $26,300.40 more than he would have been entitled to be paid had the MTC Award and the PHE Award applied to Mr Chippindale.

   [160] Affidavit R I Ford 02.07.2021, [58]; annexure “RF-15”

   [161] Affidavit R I Ford 02.07.2021, [59]; annexure “RF-16”

   [162] Affidavit R I Ford 02.07.2021, [61]

   [163] Affidavit R I Ford 02.07.2021, [62]

   [164] Affidavit R I Ford 02.07.2021, [63]; annexure “RF-18”

   [165] Affidavit R I Ford 02.07.2021, [64]; annexure “RF-19”

   [166] Affidavit R I Ford 02.07.2021, [64], [55]

   Meal allowances

7. Noorton took issue with two particular aspects of Mr Garrett’s calculations. The first related to Mr Chippindale’s claims for meal allowances, being an entitlement provided for by cl 14.17 of the PHE Award as follows:

   When an employee is required to work overtime in excess of one and a half hours after the usual ceasing time, without being notified the previous day, the employee will be provided with a suitable meal or be paid $16.62 instead. Should overtime work continue for a further four hours, the employee will be provided with a second meal or be paid $16.62.

8. In his first affidavit Mr Chippindale said he was never paid a meal allowance.[167]

   [167] Affidavit of B T Chippindale 27.04.2021, [48]

9. In his affidavit Mr Ford says as follows:

   (a)Clause 26.5 of each of the GPH and 2009 Masters agreements provided that employees would be provided with a meal within five hours of commencing work on any day where the shift to be worked is for a period longer than five hours or, where a meal is not provided, Noorton would pay to the employee $9.85 in lieu.[168]

   (b)All employees would be paid for a meal break of 20 minutes when working shifts of greater than five hours.[169]

   (c)When “the Union raised this issue” Mr Ford conducted an analysis of Mr Chippindale’s shifts to identify the shifts on which Mr Chippindale had worked longer than five hours. On the basis of that analysis Mr Ford concluded that: in the 2018 calendar year Mr Chippindale had taken a “paid crib break” on all shifts in which he worked over five hours; in the 2017 calendar year there were two shifts over five hours where no crib break was provided; in the 2016 calendar year there were three shifts over five hours where no crib break was provided; and in the 2015 calendar year there were three shifts over five hours where no crib break was provided.[170]

   (d)Noorton paid Mr Chippindale throughout each meal break he had taken, but Noorton did not pay an amount for meal allowances.[171]

   [168] Affidavit R I Ford 02.07.2021, [68]

   [169] Affidavit R I Ford 02.07.2021, [69]

   [170] Affidavit R I Ford 02.07.2021, [70]

   [171] Affidavit R I Ford 02.07.2021, [70]

10. In his affidavit in reply, Mr Chippindale did not disagree with anything Mr Ford said in his affidavit in relation to the allowance of meal breaks. Mr Chippindale said that the “food on board the vessel consisted of a small packet of chips and a can of soft drink at best”; and “[t]his was in the context of no meal allowance being paid”.[172]

    [172] Affidavit of B T Chippindale 05.08..2021, [7]

11. Under cross-examination, Mr Garrett accepted that in his calculations he assumed that Mr Chippindale had become entitled to a meal allowance whenever Mr Chippindale had worked in excess of five hours where he did not receive a break;[173] and Mr Garrett did not determine whether for each of the days Mr Garrett calculated a meal allowance Mr Chippindale had worked overtime in excess of 1.5 hours.[174] Mr Garrett, however, said that he included a meal allowance pursuant to cl 19 of the PHE Award,[175] which provides:

    [173] T20.20; T20.25

    [174] T21.5; T21.20

    [175] T21.40

    19.1 An employee will not be required to work for more than five hours without a break for a meal.

    (a)       Breakfast

    Breakfast is the hour preceding the usual starting time. The breakfast break will not be taken when employees are required to commence at 7.00 am or after, and preceding the usual starting time.

    (i) By mutual agreement between the employer and employees concerned, a 20 minutes rest period may be taken without deduction of pay instead of the prescribed hour for breakfast. This rest period will commence 20 minutes before the usual starting time unless otherwise mutually agreed.

    (ii) Employees ordered in to dock or shift a vessel at 7.00 am will not be entitled to a meal break before noon, but if ordered in at any time before 7.00 am they will have an hour for breakfast not later than 8.00 am or a rest period of 20 minutes as provided above.

    (b)       Lunch

    Lunch is from noon to 12.45 pm or such period as is the usual custom of the establishment at which the employees are employed.

    (c)       Tea

    (i)Tea is from 5.00 pm to 6.00 pm or according to the usual custom of the establishment at which the employees are employed. Provided that by mutual agreement between the employer and employee concerned a rest period may be taken.

    (ii)The times prescribed above may be altered by mutual agreement between the employer and employee concerned.

    19.2Double time will be paid for all work done during the breakfast, lunch and tea breaks specified above, such double time to continue until the employees are granted a meal break or are released from duty. This provision has no application to establishments or jobs where, in accordance with this clause, it is customary for paid rest periods to be taken instead of the breakfast and or tea breaks, and such rest periods are allowed and taken.

12. Noorton submits that the calculations have been made on the basis of assumptions that do not reflect the terms on cl 14.17 of the PHE Award and, moreover, without reference to the evidence that has been filed. I agree. That does not, however, necessarily mean this part of the applicants’ claim must fail; it is possible that the evidence may support findings that Mr Chippindale was not paid meal allowances to which he had become entitled. I will therefore invite submissions on whether, on the evidence that has been admitted, and on the findings I have made, Noorton did fail to pay to Mr Chippindale amounts on account of meal allowances.

    Travel allowances

13. Mr Chippindale’s claim for travel allowance is based on cl 14.22 of the PHE Award, and cl 14.23. Clause 14.22 provides:

    (a)Where an employee commences or finishes work or is required for call-out between the hours of 11.00 pm and 6.00 am the employer will:

    (i)  supply them with a conveyance to or from their home whichever is appropriate;

    (ii)  pay them for time spent in reaching their home or travelling there from at the employee’s minimum weekly rate with a minimum of half an hour and a maximum of one hour; or

    (iii)  if by arrangement with their employer the employee uses their own motor vehicle they will receive an allowance of not less than $0.78 per kilometre.

    (b)An employee required to use their own vehicle to travel to or from a starting or finishing point other than their regular starting or finishing point will be paid for the distance and time in excess of the distance or time involved in getting to their normal starting or finishing point, $0.78 per kilometre for the excess distance travelled and will be paid at their minimum weekly rate for the excess time occupied in travelling with a minimum of half an hour and a maximum of one hour.

    (c)An employee not required to use their own motor vehicle and should in the ordinary course of employment begin their work for the day at a particular place, is required to finish work at a place other than that particular place will be paid any reasonable travelling expenses and will also be paid at overtime rates of pay for any travelling time occasioned beyond their ordinary travelling time.

14. Clause 14.23 provides:

    (a)When an employee is required to travel from their home port to another port, time spent outside of their ordinary hours will be paid for as travelling time.

    (b)The rate of pay for travelling time will be ordinary rates, except on Sundays and public holidays when it will be time and a half.

    (c)The maximum travelling time to be paid for will be eight hours on any one day.

15. In evidence given under cross-examination, Mr Garrett accepted that his calculations of the travel allowance under cl 14.22 of the PHE Award were based on the assumption that Mr Chippendale travelled more than half an hour between 11:00 pm and 6:00 am, thus falling within cl 14.22(a)(ii);[176] that in calculating the allowances under cl 14.23 Mr Garrett applied a flat hourly rate for anytime Mr Chippendale travelled from port to port without taking into account whether that occurred outside ordinary hours;[177] that Mr Garrett assumed Mr Chippindale did not own a motor vehicle;[178] and, although Mr Garrett was aware that Noorton allowed its employees to claim $6 when they started and finished at different ports, he did not include in his calculations any payments of $6.[179]

    [176] T30.25

    [177] T34.15

    [178] T35.5

    [179] T36.1

16. In evidence given under cross-examination, Mr Chippindale said there were three different ports from which he could start or finish work - the Fish Markets, Circular Quay, and Darling Harbour; during the course of his employment with Noorton Mr Chippindale lived in Surry Hills; around 50% of the time Mr Chippindale drove to work and parked at the Fish Markets and paid a flat fee to park there, although he did not know whether that was made available under any arrangement; Mr Chippendale would use an electric scooter to and from any other port from which he was required to begin or end a shift; and Mr Chippindale claimed an allowance of $6 on each occasion he travelled by his scooter from port to port. Mr Chippindale also gave the following evidence:[180]

    . . . You were paid an allowance of, I think you said, a $6 rate; correct? - - - Yes. Yes.

    And if you had to travel . . . between ports during your shift, you were paid for that, weren’t you? - - - Well, I never did it during a shift - - -

    I’m see? --- - - - unless it was in service. So no.

    [180] T47.5

17. Noorton submits that the evidence does not support Mr Chippindale’s claim that he had become entitled to any travel allowance under cl 14.22 of the PHE Award. I accept that Mr Garrett’s calculations have been based on assumptions that do not reflect the terms of cl 14.22. I am not prepared to find, however, that the evidence before me is incapable of supporting such claims. I will therefore invite submissions on whether, on the evidence that has been admitted, and on the findings I have made, Noorton did fail to pay to Mr Chippindale travel allowances.

    CONCLUSION AND DISPOSITION

18. The principal questions I considered in these reasons for judgment concern the industrial instruments that applied to Noorton and to Mr Chippindale during the Employment Period. I have concluded that the PHE Award applied to the extent Mr Chippindale had been engaged as a GPH and a master on board or in relation to vessels Noorton used to operate the MFF service (including the MFFF service), the MDH service, the Hopper service, and the whale watching service, and that the GPH and 2009 Masters agreements applied to the extent Mr Chippindale had been engaged on board or in relation to vessels Noorton had used to provide charter services and special event services. I have also concluded, however, that the calculations on which the applicants rely for quantifying the extent of underpayments have been made on the basis of assumptions that do not reflect the terms of the PHE Award on which the applicants rely. I am not satisfied, however, that the evidence before me is incapable of supporting such claims.

19. I propose, therefore, to set down the proceeding for a directions hearing four weeks after I publish these reasons for the purpose of then setting the matter down to hear submissions on:

    (a)what if any relief should be granted on the basis of the findings I have made in relation to the industrial instruments that applied to Mr Chippindale; and

    (b)whether, on the findings I have made, and the evidence that has been adduced, Noorton failed to pay to Mr Chippindale amounts to which he became entitled under the PHE Award and, if so, what those amounts are.

I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       26 August 2022