Construction, Forestry, Maritime, Mining and Energy Union v Svitzer Australia Pty Limited T/A Svitzer Australia

[2023] FWCFB 259

[2023] FWCFB 259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v

Svitzer Australia Pty Limited T/A Svitzer Australia

(C2023/435)

The Australian Institute of Marine and Power Engineers, The Australian Maritime Officers’ Union
v

Svitzer Australia Pty Limited

(C2023/437)

Svitzer Australia Pty Limited
v

Construction, Forestry, Maritime, Mining and Energy Union, The Australian Institute of Marine and Power Engineers, The Australian Maritime Officers’ Union

(C2023/438)

VICE PRESIDENT ASBURY

DEPUTY PRESIDENT HAMPTON

COMMISSIONER MCKINNON

BRISBANE, 18 DECEMBER 2023

Appeal against decision of [[2023] FWC 55] Deputy President Easton at Sydney on 9 January 2023 in matter numbers C2022/2296 and C2022/2865

Introduction and background

1. This decision concerns three applications to appeal against a Decision of Deputy President Easton (Decision)[1], issued on 9 January 2023, determining disputes arising under the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (the Agreement). The applications to appeal are made by the Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Division (MUA)[2], jointly by the Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers’ Union (AMOU)[3] (collectively the Unions) and Svitzer Australia Pty Limited (Svitzer).[4] The appeals, for which permission to appeal is required, are brought under s. 604 of the Fair Work Act 2009 (the Act).

1. The background can be briefly stated. The Agreement applies to Svitzer, employees and trainees employed by Svitzer in relation to work performed on tugboats in or about 17 Ports throughout Australia,[5] and covers the Unions. Clause 15.1 of the Agreement provides that employees may be engaged in one of four categories of employment: permanent full-time; permanent part-time; for a specified period of time / task (referred to by the parties as fixed term employment); and casual. Clauses 15.2 and 15.3 respectively define permanent full-time and permanent part-time employment. Clause 15.4 defines employment for a specified period of time or task and provides that “an employee engaged for a specified period of time or a specified task is an employee who works on either a permanent full-time or permanent part-time basis, but is engaged for a specified period of time or a specified task”. We will also refer to this category of employees as fixed term employees.

1. The Agreement at clause 41.1 provides that there will be a set of Port Operating Procedures (POPs) in each Port. POPs must be signed by the Port Manager and Union delegates and are required to be reviewed annually. POPs detail subject matter set out in clause 41.2 of the Agreement. Other provisions in clause 41 deal with the process for making and changing POPs by agreement or with notice and for the resolution of disputes for changes that are not agreed. By virtue of clause 5.3.1, POPs are incorporated as a term of the Agreement for the port concerned and the Agreement prevails over applicable POPs, which have no effect to the extent of any inconsistency with the Agreement.

1. The dispute before the Deputy President concerned POPs at the ports of Sydney, Newcastle, Western Port, Brisbane and Melbourne. Among other matters, the relevant POPs variously specify numbers of “permanent” or “full-time” crews or employees required to work the rosters at the ports. Some, but not all the POPs, refer to fixed term employees or crews. Other POPs are silent in relation to the engagement of fixed term employees. The Unions contend that references in POPs to “permanent” or “full-time” employees or crews mean permanent full-time or part-time employees as defined in clauses 15.2 and 15.3 of the Agreement and do not refer to fixed term employees defined in clause 15.4. The Unions also contend that Svitzer is required to maintain the numbers of employees or crews designated as permanent in the POPs by replacing employees in those positions who leave employment, with permanent employees. The Unions assert that instead Svitzer has filled these vacant positions with fixed term employees and that this is not permitted by the disputed POPs because fixed term employees are not permanent employees.

1. Svitzer contended in the first instance proceedings that it has unfettered discretion under the Agreement to engage fixed term employees in any position at any Port and that provisions in POPs purporting to fetter that discretion engage clause 5.3.1 of the Agreement and are rendered of no effect on the basis of inconsistency with the Agreement.[6] Svitzer also contended at first instance that clause 15.4 allows fixed-term employees to form part of a broader category of permanent full-time or permanent part-time workers save that the fixed term employees are engaged for a limited period.[7]

1. The Deputy President determined that although clause 15.1 is permissive and allows Svitzer to engage employees in any of the employment categories, the clause does not give the Company an unfettered right to choose the basis on which each employee is engaged and allows for the possibility that other provisions in the Agreement could impose fetters on Svitzer’s choice. The Deputy President also found that POPs made under clause 41 of the Agreement can fetter Svitzer’s discretion to engage employees from any category in clause 15.1 without being inconsistent with the Agreement and that it is permissible for POPs to specify that places or positions in a roster must be occupied or filled by certain types of employees. The Deputy President accepted Svitzer’s argument that employment for a specified period of time / task as defined in clause 15.4 is a type of permanent employment for the purposes of the Agreement and determined that there are two kinds of full-time permanent employees described in clause 15: those who are engaged for a specified time and those who are not. Having made this finding, the Deputy President concluded that if the POPs at a particular Port do not specify which kind of permanent or full-time employee can be used to fill a particular roster, then Svitzer can engage a fixed term employee for this purpose. Applying this approach, the Deputy President found that the Sydney, Newcastle and Western Port POPs do not fetter Svitzer’s discretion to engage full-time or part-time employees on fixed term contracts. In contrast, the Deputy President found that the Brisbane and Melbourne POPs, by specifically referring to categories of employment in clause 15, place a fetter on the number and types of employees that Svitzer can engage to fill rosters at those ports.

1. The Unions’ appeals assert errors on the part of the Deputy President in concluding that employees engaged for a specified period of time / task are permanent employees and that such employees can fill positions designated in POPs as “permanent”. Svitzer’s appeal maintains that the Deputy President’s conclusion that some POPs fetter its discretion to fill vacancies or to otherwise employ fixed term employees at any Port, is erroneous and that any provision of a POPs purporting to fetter its discretion in this regard is of no effect based on inconsistency between the POPs and the Agreement.

1. It is not in dispute, and we accept, that the appeals are authorised by the dispute resolution term in the Agreement and by s. 604 of the Act, but require permission. Following the lodgement of the appeals, Directions were issued requiring the Unions and Svitzer to file written outlines of submissions in relation to permission to appeal, merits of the appeals and permission to be legally represented pursuant to s. 596 of the Act and to file written submissions in response. A hearing was conducted at which the MUA was represented by Mr A Neal of counsel, the AIMPE and AMOU by Mr O Fagir of counsel and Svitzer by Mr I Neil SC instructed by Australian Business Lawyers & Advisors. We granted permission for the parties to be legally represented on the basis that we were satisfied that the matter involved complexity arising from the proper construction of the Agreement and its interactions with the POPs. We were also satisfied that the involvement of counsel would enable the matter to be dealt with more efficiently.

The Decision

1. The Deputy President noted that the parties were unable to agree on the question for arbitration, and that the Commission was not confined by the specific formulation of the questions posed by the parties. The Deputy President ultimately answered all questions as posed. Key provisions of the Agreement were reproduced by the Deputy President in Appendix A to the Decision and are also appended to this decision.

1. The Deputy President concluded that none of the evidence called by the parties at the hearing displaced or disproved the Unions’ case that prior to 2022 fixed-term employees had only been used by Svitzer to cover temporary absences or temporary circumstances[8] and that there was no evidence from Svitzer of any specific reason, other than general references to operating in a competitive environment and the need to mitigate unspecified risks, for engaging new employees on a fixed-term basis from 2022[9].

1. After summarising the contentions of the parties, the Deputy President identified five matters for consideration as follows:

“(a)whether clause 15.1 of the Agreement gives Svitzer an unfettered right to decide the basis upon which each employee is engaged;

(b)whether POPs can contain terms that fetter Svitzer’s capacity to decide the basis upon which each employee is engaged;

(c)whether employees on fixed-term contracts are permanent full-time employees or not;

(d)whether any of the POPs in fact do limit Svitzer’s capacity to decide the basis upon which fixed-term employees can be engaged; and

(e)whether any such terms are rendered unlawful and of no effect because of s.253”[10]

1. In relation to the first of these matters – whether clause 15 gave Svitzer unfettered rights regarding engagement of employees – the Deputy President agreed with Svitzer that clause 15.1 is permissive in the sense that Svitzer is permitted to engage employees in any of the four categories of employment in clause 15.1 on a discretionary basis and that the clause makes each option available to Svitzer. However, he rejected the proposition that the terms of clause 15.1 conferred unlimited discretion on Svitzer to employ workers on any basis or resulted in Svitzer’s choice being unfettered. In this respect, the Deputy President reasoned that clause 15.1 does not indicate that it applies to the exclusion of all other provisions and leaves open the possibility that clause 15.1 may be fettered by the operation of other provisions in the Agreement.[11]

1. In relation to the second matter – whether POPs can contain terms fettering Svitzer’s capacity to decide the basis for engaging employees – the Deputy President considered that clause 15.1 must be read in conjunction with clauses 5.3 and 41.2 and made the following observations about these clauses and the interpretation advanced by Svitzer in that regard:

“[77]       Clause 41.2 requires that certain matters be included in each POPs, including “details in respect of” port rosters.

[78]       Because of clause 5.3, any term of a POPs that is inconsistent with a term of the Agreement has “no effect” to the extent of the inconsistency.

[79]       By its very nature a ‘roster’ sets out the pattern of work over a period of time. Clause 41 contemplates POPs and rosters being reviewed annually, which necessarily implies a roster arrangement that can apply over the course of a year without updates or alterations (in contrast to casual work), and also a roster arrangement that will continue in perpetuity for more than one year if it is not altered (in contrast to fixed-term employment).

[80]       Clause 41.2.1(ii) also requires that the details of ‘the number of crews on duty and on leave required to man the roster’ be included in the POPs as far as practicable.”

[81]       On Svitzer’s interpretation, any term of a POPs that impinges upon Svitzer’s unfettered right under clause 15.1 is inconsistent with clause 15.1 and of no effect. Extending this logic one step further in light of clause 41.2.1(ii), if Svitzer is correct each POPs must set the details of the roster but must not do so in a way that would restrict the basis upon which employees might be engaged to fill that roster.”

1. The Deputy President did not accept the interpretation advanced by Svitzer on this point, finding that the specific requirements in clause 41 gave rise to distinct possibility that the rosters detailed in the POPs specifying “the number of crews…required to man the roster” as provided in clause 41.2 could impinge upon Svitzer’s discretion to engage a particular category of employees, notwithstanding the absence of an express limitation in clause 15.1.[12] The Deputy President further found that when clauses 15.1 and 41.2.1(ii) are read together, there is no inconsistency between the terms of the POPs and clause 15.1, and it is possible and permissible for POPs to specify that certain places or positions in a roster must be occupied or filled by certain types of employees.[13]

1. In relation to the third question, the Deputy President rejected the contention of the MUA that fixed-term employees cannot be deployed to permanent crews to satisfy the requirements of the various POPs because fixed-term employees are not permanent employees under the Agreement, and that clause 15.4 acts merely as a deeming provision requiring Svitzer to treat those employees as permanent employees. In rejecting this submission, the Deputy President considered clause 24.3 (salaries), clause 42 (leave) and clause 21.1 (redundancy) and expressed the view that clauses 24.3 and clause 42 “transposes certain entitlements for employees engaged for a specific period or task”[14] so that those employees receive the same entitlements as full-time or part-time employees. Only clause 21.1 was found to differentiate employees engaged for a specific period / task from other categories of employees. The Deputy President then concluded that fixed-term employees are permanent employees under the Agreement reasoning that:

“[93]       The balance of the Agreement distinguishes between ‘permanent’ employees and ‘casual’ employees for certain entitlements – which is consistent with fixed-term employees being permanent employees rather than casual employees.

[94]       The ordinary meaning of the words in clause 15.4 are straightforward: fixed-term employees are to receive all the same entitlements as permanent employees (necessarily modified by clauses 24.3, 42 and 21.1) because they are permanent employees.

[95]       Calling fixed-term employees ‘permanent’ is not an oxymoron in the context of the Agreement. The Agreement confers certain entitlements on “permanent” employees that take their character from the fact that the employment is ongoing beyond a single day. Annual leave and personal/carer’s leave are the obvious examples – the entitlements are dependent upon the employment being ongoing.

[96]       Even though there is an end date to the fixed-term employment, the employment is ongoing (for the purposes of entitlements such as annual leave and carers leave) during the term of the employment.”

1. In relation the fifth question as to whether any of the POPs in fact do limit Svitzer’s capacity to decide the basis upon which fixed-term employees can be engaged, the Deputy President observed that it was reasonably clear the intention of the parties who drafted the POPs was to indicate that places in the port roster were set for permanent or full-time crews and that in the ordinary course of staffing the roster, those places would be filled by permanent full-time employees, unless the POPs provided to the contrary. The Deputy President also observed that as the Agreement provided, permanent full-time employees had been the “main source” of crewing and the likely expectation was that this would continue unless particular circumstances arose that required a different approach.[15] The Deputy President went on to find that clause 15 of the Agreement allows Svitzer to engage some employees on fixed term contracts and count those employees as full-time or part-time permanent employees for the purposes of the POPs.

1. As to the approach to the construction of the POPs, the Deputy President considered that each POPs “operates in conjunction with the Agreement and must be read in that context”[16]. However, in circumstances where the absences of permanent employees are “not already built into the rosters”, it was said that Svitzer would not be in breach of the POPs by “using fixed-term employees for longer absences and even casual employees for shorter absences”. In relation to whether there is any limitation in the POPs with respect to Svitzer’s engagement of fixed-term employees, the Deputy President summarised the arguments raised by the parties, as follows:

“[103]     Svitzer’s core argument on this point is that when a POPs sets places in a roster for permanent or full-time crews without further specification, the POPs leaves open the possibility that those places can be filled by employees engaged on a fixed-term basis as long as those employees are employed as “permanent” employees or “full-time” employees.

…

[106]     It is implicit in the Unions’ argument that there is some limitation within the Agreement that employees can only be engaged on a fixed-term basis when there is an identifiable legitimate basis for doing so. Clause 15.4 of the Agreement refers to “an employee engaged for a specified period of time or a specified task”. Implicit in the notion of engaging an employee for a specified period of time or task is that there be some connection between the basis of the engagement and the period of time or the specified task.

[107]     Another way of understanding the present dispute is to see that the Unions’ objection to Svitzer using fixed-term employees to fill permanent ongoing vacancies arises because they consider the basis or reason for engaging fixed-term employees (or connection between the basis of the engagement and the period of time or the specified task) is not legitimate.”

1. In response to Svitzer’s argument, the Deputy President stated that employees engaged for a specific period of time or task are permanent employees by virtue of clause 15.4, “there are at least two kinds of full-time permanent employee described in clause 15: those who are engaged for a specified time and those who are not.”[17] The Unions’ argument was rejected by the Deputy President on the basis that reading into clause 15 their contended limitation was not warranted because matters such as “the appropriateness or legitimacy of using fixed-term employees” should be addressed through negotiation and review mechanism as provided for in clause 41 of the Agreement and if such a limitation had been intended by the parties, it would have been included in the Agreement or the POPs. In relation to whether the disputed POPs impinge on Svitzer’s discretion to engage employees under clause 15, the Deputy President considered each of the disputed POPs and concluded, that the Sydney, Newcastle and Western Port POPs do not fetter Svitzer’s discretion to engage employees in any category of employment, and so long as Svitzer engage the specified numbers of crews or employees at those ports, it open to Svitzer to engage employees on fixed term contracts.

1. In relation to the Brisbane POPs, the Deputy President found that specific reference to permanent and fixed term employees meant that the framers were referring to two different types of employees and that the references to permanent employees were to employees who had ongoing employment and were not engaged for a specified time or task. On this basis, the Deputy President concluded that the most cohesive interpretation was that clauses specifying numbers of permanent employees did not include fixed term employees, while clauses referring to fixed term and casual employees referred to how such employees could be deployed. It was also relevant that the Brisbane POPs referred to “employees” rather than “crews”. The effect was that fixed term employees could only be used to “supplement” permanent employees by providing “relief as necessary” or to meet operational requirements (including trials) as specified in the clause and that the Brisbane POPs placed a fetter on Svitzer by limiting the circumstances in which fixed term employees could be deployed. In relation to the Melbourne POPs, the Deputy President found that a definition of permanent full-time and permanent part-time crews as being employed under clauses 15.2 and 15.3 of the Agreement respectively, was a clear indication that those crews could not be staffed by employees engaged for a fixed term under clause 15.4 of the Agreement and that had this been intended, the Melbourne POPs would have referred to clause 15.4.

1. Having considered each of the disputed POPs, the Deputy President summarised his findings as follows:

“(a)clause 15.1 does not give Svitzer an unfettered right to decide the basis upon which each employee is engaged;

(b)particular POPs are able to contain terms that fetter Svitzer’s capacity to decide the basis upon which each employee is engaged without such terms being inconsistent with clause 15;

(c)where particular POPs set rosters for ‘permanent crews’ or ‘full-time crews’ without further specification, then Svitzer is at liberty to fill those places with employees who are permanent employees but who are engaged for a specified period of time. The current POPs for Newcastle, Sydney and Western Port fall into this category;

(d)if a particular POPs sets limitations on the use of fixed-term employees, such as Brisbane and Melbourne, then Svitzer’s discretion is otherwise fettered by those limitations; and

(e)Svitzer has not established any basis upon which any of the dispute POPs could or must be read down under s.253 of the FW Act.”

1. Based on his findings, the Deputy President answered the questions for arbitration proposed by each of the parties, as follows:

“[142]       Finally, having reached the above conclusions on the terms of the Agreement and the disputed POPS, I will answer the specific questions posed by the parties. For the question posed by the MUA:

Q: Is the Respondent required to fill a permanent vacancy in a role performed by a permanent full-time or permanent part-time employee in its operations at the Ports of Brisbane, Newcastle and Melbourne with a permanent full-time and permanent part-time employee respectively in accordance with the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 and the Port Operating Procedures applying in each of those Ports?

A: In Brisbane Svitzer is required to replace a “permanent employee” referred to in clause 1(b) of the Brisbane POPs with another “permanent employee” and cannot replace them with a fixed-term employee.
In Melbourne Svitzer is required to fill a vacancy in a role performed by a permanent full-time employee engaged under clause 15.2 (but not clause 15.4) or a permanent part-time employee employed under clause 15.3 (but not clause 15.4) with an employee employed under clause 15.2 or 15.3 as the case may be, but cannot use an employee engaged under clause 15.4.
Yes in the other disputed ports (Newcastle, Sydney and Western Port) and Svitzer can use fixed term employees engaged as permanent employees under clause 15.4.

[143]       For the question posed by The AIMPE and the AMOU:

Q: Can Svitzer engage employees for a specified period of time/task (fixed-term employees) and/or on a casual basis for the purpose of filling a vacancy in a role performed by a permanent full-time employee in its operations at the Ports of Westernport and Sydney in accordance with the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 and the respective Port Operating Procedures applying in the Port?

A: Yes, in relation to the use of fixed-term employees, and no in relation to the use of casual employees.

[144]       For the question posed by Svitzer:

Q: Can Svitzer engage employees for a specified period of time/task (fixed-term employees) for the purpose of filling a vacancy in a full time or part time role at the Ports of Westernport, Sydney, Brisbane, Newcastle and Melbourne in accordance with the Svitzer Australia Pty Ltd National Towage Enterprise Agreement 2016?

A: Yes in Newcastle, Sydney and Westernport. No in Melbourne and no in Brisbane (assuming the vacancy is for a “permanent employee” referred to in clause 1(b) of the POPs).”

The grounds of the appeals

MUA

1. The MUA’s appeal is brought on 14 grounds as follows:

“1. The Deputy President erred in finding that employees engaged for a specified period of time or “fixed – term employees” are permanent employees in accordance with the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (Agreement) and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clause 15 of the Agreement, including having regard to their context and purpose.

2. The Deputy President erred in finding that fixed term employees are to receive all the same entitlements as permanent employees (necessarily modified by clauses 24.3, 42 and 21.1) because they are permanent employees and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clauses 15, 21.1, 24.3 and 42 of the Agreement, including having regard to their context and purpose.

3. The Deputy President erred in finding that clause 15 of the Agreement allows Svitzer to engage some employees “on fixed – term contracts” and count those employees as full – time or part – time permanent employees and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clause 15 of the Agreement, including having regard to their context and purpose.

4. The Deputy President erred in finding that employees engaged for a specified period of time are, “by necessity under clause 15.4” of the Agreement, engaged on a permanent basis and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clause 15 of the Agreement, including having regard to their context and purpose.

5. The Deputy President erred in finding that if a Port Operating Procedure does not specify which kind of permanent employee or which kind of full – time employee can be used to fill a particular roster, then Svitzer can choose for itself and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clauses 15 and 41 of the Agreement, including having regard to their context and purpose.

6. The Deputy President erred in finding that where particular Port Operating Procedures set rosters for “permanent crews” or “full – time crews” without further specification, then Svitzer is at liberty to fill those places with employees who are permanent employees but who are engaged for a specified period of time and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clauses 15 and 41 of the Agreement, including having regard to their context and purpose.

7. The Deputy President erred in finding that the Sydney Port Operating Procedures, the Newcastle Port Operating Procedures and the Western Port Port Operating Procedures set rosters for “permanent crews” or “full – time crews” without further specification and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in the Sydney Port Operating Procedures, the Newcastle Port Operating Procedures and the Western Port Port Operating Procedures, including having regard to their context and purpose.

8. The Deputy President erred in finding that the Sydney Port Operating Procedures does not contain a fetter on how Svitzer can staff its fifteen full – time crews (or part – time job – share equivalents) and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clauses 15 and 41 of the Agreement and the Sydney Port Operating Procedures, including having regard to their context and purpose.

9. The Deputy President erred in finding that so long as Svitzer engages full – time employees, or part – time employees to staff the fifteen full – time crews in Sydney, it is open for Svitzer to engage those full – time or part – time employees on fixed – term contracts and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clauses 15 and 41 of the Agreement and the Sydney Port Operating Procedures, including having regard to their context and purpose.

10. The Deputy President erred in finding that the Newcastle Port Operating Procedures does not contain a fetter on how Svitzer can staff its thirty – two full – time crew and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clauses 15 and 41 of the Agreement and the Newcastle Port Operating Procedures, including having regard to their context and purpose.

11. The Deputy President erred in finding that so long as Svitzer engages full – time employees, or part – time employees to meet the requirements of the Newcastle “32 Full – Time Crew / 12 hour / 9 tug Roster”, it is open for Svitzer to engage those full – time or part – time employees on fixed – term contracts and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clauses 15 and 41 of the Agreement and the Newcastle Port Operating Procedures, including having regard to their context and purpose.

12. The Deputy President erred in finding that so long as Svitzer engages permanent full – time employees to staff the two full – time crews in , it is open for Svitzer to engage those full – time employees on fixed – term contracts and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words in clauses 15 and 41 of the Agreement and the Western Port Port Operating Procedures, including having regard to their context and purpose.

13. The Deputy President failed to properly consider, or give sufficient weight to, the evidence before the Commission, including the context in which the Agreement and its predecessors and the Sydney Port Operating Procedures, the Newcastle Port Operating Procedures, and the Western Port Port Operating Procedures were made.

14. For such other grounds and reasons as to the Commission seem fit.”

AIMPE and AMOU

1. The joint appeal brought by AIMPE and AMOU is on the grounds that the Deputy President misconstrued the Agreement including certain POPs incorporated as terms of the Agreement, and erred in finding that:

“1. for the purposes of the Svitzer EA and Port Operating Procedures, a reference to “permanent employees” or “permanent crews” comprehends fixed term employees;

2. where Port Operating Procedures prescribe certain numbers of “permanent employees” or “permanent crews”, fixed terms employees are to be treated as permanent employees or members of permanent crews for those purposes; and

3. as a result, the respondent was in certain ports entitled to replace permanent employees with employees engaged on fixed term contracts.”

Svitzer

1. Svitzer’s cross appeal is brought on three grounds, with the third ground being an alternative to ground 2, as follows:

“1. The Deputy President erred in finding (at [75]-[89] and [141]) that particular Port Operating Procedures (POPs) are able to contain terms that fetter Svitzer’s capacity to decide the basis upon which each employee is engaged without such terms being inconsistent with clause 15 of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (EA).

2. The Deputy President failed to consider Svitzer’s argument that a POP cannot include a provision which specifies the types of employment employees can be engaged in (and accordingly, such terms of a POP are invalid and unenforceable).

3. Alternatively to ground 2, the Deputy President erred in finding that a POP can include a provision which specifies the types of employment employees can be engaged in (and accordingly that such terms of a POP are valid and enforceable).”

1. Svitzer’s appeal grounds centre on its arguments in relation to inconsistency. Svitzer did not advance appeal grounds in the further alternative that went to the correctness of the Deputy President conclusions with respect to each of the disputed POPs.

Permission to appeal

1. Section 604 of the Act provides that a person aggrieved by a decision of the Commission may appeal the decision with the permission of the Commission. This provision operates subject to the terms of an instrument otherwise providing the basis for the Commission to determine a matter by arbitration under s.739 of the Act. As we have noted, this is not in dispute in the present case. The dispute settlement term in the Agreement does not establish an independent right of appeal and an appeal lies under s. 604(1) only with permission.

1. The Decision against which the appeals have been brought concerns the proper construction of the Agreement. The substantive part of the Decision did not involve the exercise of discretion. The answer given by the Member at first instance to the proper construction of the Agreement is either correct or incorrect. In this regard the appeals concerning the proper construction of the Agreement are to be determined by the “correctness standard”. As the High Court explained in Minister for Immigration and Border Protection v SZVFW[18], the legal criterion applied to reach the conclusion demands a unique outcome,[19] and there is only one right answer[20].

1. By virtue of s. 604(2), without limiting when permission to appeal may be granted, the FWC must grant permission if satisfied that it is in the public interest to do so. Permission to appeal may also be granted where there is an arguable case of appealable error, and the decision is attended with sufficient doubt to warrant its reconsideration.[21]

1. We are satisfied that permission to appeal should be granted on the basis that the grounds of appeal advanced by the Unions raise an arguable case of appealable error. We also accept Svitzer’s contention that the appeal raises issues of construction of an important enterprise agreement applying in a sector that has considerable significance for the Australian economy. In this regard, the fact that POPs may be varied during the term of the Agreement, that disputes in relation to variations may be raised under the dispute settling provision and that POPs may continue to operate in replacement iterations of the Agreement, can give rise to ongoing disputation.

Submissions in the appeal

MUA

Appeal Grounds 1 to 4: “permanent employees”, “full-time employees” and the Agreement

1. The MUA submitted that a fixed-term employee could not be considered “permanent” because their employment comes to an end upon the effluxion of the period of time specified under a contract,[22] and that the Deputy President’s conclusions that employees employed for a specified period of time are permanent employees and engaged as such under clause 15.4 of the Agreement, are erroneous. In this respect, the text of clause 15 is clear. There are four categories of employment under the Agreement – permanent full-time, permanent part-time, specified period of time / task and casual. Clause 15.4.1 makes clear that whilst a fixed-term employee may “work on a permanent full-time or permanent part-time basis”, the fixed-term employee is “engaged for a specified period of time or specified task”. That the engagement of the employee was for a specified period of time and not on a permanent basis, was said to be reflected in Svitzer’s fixed-term employment contracts tendered into evidence at first instance.[23] If the Deputy President’s characterisation of fixed-term employment as a sub-category of permanent employment under the Agreement is correct, clause 15.4 would have no work to do.

1. Further support for the interpretation advanced by the MUA, was said to be found in key clauses in the Agreement which distinguish between permanent employees and employees employed for a specified period of time. In this regard, reference was made to clauses 21 (Redundancy), 42 (Leave) and 24 (Salaries) and these clauses were said to distinguish between the four categories of employees.

1. That other terms and conditions of the Agreement did not distinguish between permanent and fixed-term employees was, in the MUA’s view, wholly unsurprising. Fixed-term employees necessarily work on either a full-time or part-time basis and are “paid as” such. Employees engaged for a specified period of time enjoy the same benefits as permanent full-time or permanent part-time employees because, as was Svitzer’s evidence below, fixed-term employees are typically engaged by Svitzer to fill temporary vacancies in rostered positions held by incumbent permanent full-time or permanent part-time employees.[24]

2. The MUA further submitted that in finding that fixed-term employment was a “variant” of permanent employment under the Agreement, the Deputy President failed to distinguish between the basis of engagement of an employee for a specified period of time and the terms and conditions of employment provided to fixed-term employees by the Agreement and thereby incorrectly construed clause 15. The MUA stated that just as the Deputy President “assumed” the framers of the POPs were of a “practical bent of mind”,[25] so too were the drafters of clause 15 of the Agreement. In this respect, the MUA referred to the observations of French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union[26], as follows:

   “There is a long tradition of generous construction over a strictly literal approach … It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in drafting… nor be astute to discern absurdity or illogicality or apparent inconsistency.”

3. Reference was also made to the observations of Wheelahan J in King v Melbourne Vicentre Swimming Club Inc[27] as follows:

   “Part of the context in construing an industrial instrument may, in an appropriate case, be a recognition that the instrument may have been drafted by lay persons with a practical bent of mind, with the consequence that the construction of ambiguous terms should favour a sensible and practical industrial result, shorn of narrow legalism and pedantry.” (emphasis added in submission).

1. The MUA submitted that a sensible and practical industrial construction is that clause 15 provides for four separate categories of employment, each specified in a separate sub-clause of clause 15 and the Deputy President erred in finding otherwise.

Appeal Grounds 5 and 6: “permanent” and “full-time” employees and crews and the POPs

1. In relation to grounds 5 and 6, the MUA submitted that further support for the primacy of permanent employment under the Agreement, not including fixed-term employees, is found in clause 41.2.1(iv) which makes clear that “permanent full-time employees are the main source of crewing the port roster and permanent part-time employees supplement the roster”. So much appears to have been recognised by the Deputy President at paragraphs [99] and [100] of the decision, where the Deputy President’s reasoning makes good the MUA’s contended construction of the disputed POPs. When the POPs use the terms “permanent” or “full-time” [28] those terms do not mean employees or crew employed for a specified period of time / task. The Deputy President, having recognised that the POPs can place a fetter on the engagement of employees or crew for a specified period of time,[29] and acknowledging the intention of the POPs to impose such a fetter by using the terms “permanent” and/or “full-time”, erred by going on to find that because the Agreement classified fixed-term employees as permanent employees, fixed-term employees could be engaged to fill vacancies in “permanent” or “full-time” rostered positions covered by the POPs.[30]

1. Even if the Deputy President was correct in his conclusions that clause 15 allowed for the engagement of employees on fixed-term contracts as a “variant” of permanent employment and that Svitzer could count those employees as full-time or part-time permanent employees, it was the intention of the drafters of the contested POPs to restrict or prohibit such engagement, and this was accepted by the Deputy President at paragraph [100]. Consistent with the Deputy President’s reasoning at paragraphs [99] and [100] of the Decision, the MUA contends that the Deputy President’s construction of the term “permanent employees” in the Brisbane POPs is equally applicable to the terms “permanent” and/or “full-time” in all the contested POPs.[31]

1. Further, the MUA argued that contrary to the Decision, there is no need for the POPSs to specify “which kind of permanent employee or which kind of full-time employee can be used to fill a particular roster” because it was “reasonably clear” to the Deputy President that the POPs (and on the MUA’s case, clause 15 of the Agreement) do not include fixed-term employees in the “permanent full-time” category of employment.

Appeal Grounds 7, 8 and 9: Sydney Port Operating Procedures

1. It is apparent from [114] of the Decision that the Sydney POPs make a distinction between “15 x full-time crew” as being “maintained” or engaged and an “additional 2 x LIR (leave in running or non–fixed roster) crews engaged on a fixed-term basis”. Such a distinction is substantively the same distinction, which the Deputy President correctly found, as that in the Brisbane POPs between the use of fixed-term and permanent “employees”.[32] Additionally, clause 1 of the Sydney POPs further distinguishes between fixed-term employment and full-time employment giving Svitzer “the discretion to appoint any fixed term employees from time to time similar to casual employment”.[33] While this was the subject of oral submissions and exchanges with the Deputy President,[34] the Decision fails to deal with the effect of that part of clause 1 of the Sydney POPs and also fails to deal with clause 5 (Relief) of the Sydney POPs which distinguishes between the LIR crew (engaged on fixed-term contracts) and “permanent full-time employees” and “permanent part-time employees” for the purposes of the order of pick for relief.[35]

1. The MUA submitted that for these reasons, and the reasons in relation to appeal grounds 1 to 4 and/or appeal grounds 5 and 6, the Deputy President erroneously concluded that the Sydney POPs set rosters for “full-time crew” without further specification,[36] and do not fetter how Svitzer can staff its full-time crew (or part-time job share equivalents), and that so long as Svitzer engages full-time employees, or part-time employees to staff the 15 full-time crews it is open for Svitzer to engage those full-time or part-time employees on fixed-term contracts.

Appeal Grounds 7, 10 and 11: Newcastle Port Operating Procedures

1. For the reasons set out in relation to appeal grounds 1 to 4 and/or appeal grounds 5 and 6, the MUA submitted that the term “(t)he following permanents will be employed” is a reference to employees employed in permanent full-time employment, not for a specified period of time. Additionally, the Newcastle POPs set out a 32-crew roster which further identifies by the names of all permanent full-time (not fixed-term) employees engaged by Svitzer in accordance with the POPs. It was the evidence of Mr Glenn Williams, MUA Division Newcastle Branch Secretary, under cross-examination, that the replacement of a permanent full-time employee in the 32-crew roster was on a like for like basis.[37]

1. The MUA submitted that, for these reasons, the Deputy President erroneously concluded that the Newcastle POPs set rosters for “full-time crew” without further specification,[38] that the Newcastle POPs do not contain a fetter on how Svitzer can staff its 32 full-time crew, and that so long as Svitzer engages full-time employees, or part-time employees to meet the requirements of the 32-crew roster, it is open for Svitzer to engage those full-time or part-time employees on fixed-term contracts.

Appeal Grounds 7 and 12: Western Port Port Operating Procedures

1. For the reasons set out above in relation to appeal grounds 1 to 4 and/or appeal grounds 5 and 6, the MUA submitted that the terms “permanent full-time crew (100%)” and “2 full-time crews” are clearly a reference to crews engaged in permanent full-time employment, not for a specified period of time, and the Deputy President erroneously concluded that the Western Port POPs set rosters for “permanent” or “full-time” crew without further specification[39] and that it is open for Svitzer to engage those full-time employees on fixed-term contracts.

Appeal Ground 13: The Evidence

1. In relation to the conclusion of the Deputy President at paragraphs [99] to [100], the MUA submitted that the unchallenged evidence was that the terms “permanent” and “full-time” were used interchangeably in the negotiations for the 2016 Agreement and that those terms were never understood by the parties to include fixed-term contracts.[40] In this regard, the MUA submitted that evidence was a relevant context to which the Decision had insufficient regard, leading the Deputy President to err in his construction of clause 15 of the Agreement and the terms of the disputed POPs.

Submissions in response to Svitzer’s appeal

1. In relation to ground 1 of Svitzer’s appeal, the MUA submitted that the Agreement clearly contains an indication that the discretion in clause 15.1.1 is qualified. It was found by the Deputy President that there is an express fetter in clause 15 itself relating to part-time conversion. Clause 41.2.1(ii) which requires the rosters to include “the number of crews on duty and on leave required to man the roster” was also said to contemplate a fetter on the discretion in clause 15.1.1.

1. In addition, the MUA submitted that it would not be possible for Svitzer to specify the subject matters referenced in clause 41.2.1(ii) in a roster in a POPs without mentioning categories of employment. In this respect, the MUA referred to clause 15.2.1, clause 41.2.1(iii) which requires rosters in a POPs to set out details in respect of “Off-duty periods for permanent full-time employees” and clause 41.2.1(iv) which requires rosters in a POPs to set out details in respect of “Off-duty periods for permanent part-time employees” and clause 41.2.7 which requires the rosters in a POPs to set out details in respect of “Relief arrangements to be utilised in the Port and casual usage” including an order of pick for relief as between “permanent part-time employees”, “casual employees” and “permanent full-time employees on rostered leave”.

1. With respect to the Melbourne and Brisbane POPs, the MUA submitted that they do not remove the discretion in clause 15 entirely or disentitle Svitzer to its exercise. Rather, the Unions, Svitzer and its employees have agreed in those POPs the complement of rostered permanent full-time, permanent part-time, fixed term/ task and casual employees which may be engaged in accordance with the categories of employment in clause 15.1, as required by clause 41.2. In so doing, Svitzer has exercised its discretion, which can then be varied by agreement in accordance with clause 41.4. This outcome is available under the Agreement with respect to the POPs because the Agreement allows for the agreed POPs to fetter the discretion in clause 15.1.1. For these reasons, the limitations on fixed-term engagements in the Melbourne and Brisbane POPs are not inconsistent with clause 15.1.1 and as such, clause 5.3.1 is not engaged.

1. In relation to grounds 2 and 3 of Svitzer’s appeal, the MUA submitted that, far from being superfluous to the purpose of a roster under the Agreement, the employment category of a rostered employee is required by the terms of clause 41.2 to be included in a roster in a POPs, including clause 41.2.1(i) which requires towage operations to be carried out 24 hours per day on every day of the year. Consistent with that construction of clause 41.2, all the disputed POPs contain rosters specifying employment categories of rostered crews either without, or in addition to, employees names, crewing numbers and which crew are rostered to work and when.

1. In oral submissions, Mr Neal for the MUA emphasised that the notion that somehow fixed term employment fits within the category of permanent employment is an oxymoron. Reference was also made to the findings of the Deputy President at paragraphs [94] and [96] that fixed term employees receive all of the entitlements of permanent employees because they are permanent employees and that fixed term employment is ongoing during its term, notwithstanding that it has an end date. These findings were submitted to be incorrect and contrasted with the correct finding in paragraph [123] that the Brisbane POPs refer to permanent employees as employees who have ongoing employment and who are not engaged for a specified time or task. This was said to be exactly the distinction that is made in clause 15.1.1. Reference was also made to the use of the terms – permanent full-time and permanent part-time employees – in the Melbourne POPs which was said to be a distinction based on the use of the words “permanent” and “fixed term” in opposition to each other, which is the way they are used in clause 15.1.1.

Oral submissions in reply

1. In oral submissions in reply, reference was made to the Deputy President’s finding that none of Svitzer’s evidence displaced or disproved the assertion in the Unions’ case that Svitzer had only ever used employees on fixed term contracts to cover temporary absences or temporary circumstances. It was submitted that those absences being covered are absences in permanent full-time or permanent part-time positions and accordingly, it is not surprising that the terms and conditions listed at paragraph [56] of the Deputy President’s Decision do not differentiate between permanent and fixed term employees. In short, fixed term employees remain fixed term employees and fill substantive roles that are permanent full-time or part-time roles and receive the same terms and conditions as permanent employees, while temporarily filling those roles.

AIMPE and AMOU

1. The AIMPE and AMOU submitted that the Deputy President’s conclusion that fixed-term employees are permanent employees was wrong, for the following reasons. First, the word “permanent” means “lasting, intended to last or function indefinitely”.[41] As a matter of plain language, a fixed term employee is not permanent. The proposition that a fixed term of employment is “permanent” is an oxymoron. Permanent employment and fixed term employment are alternatives.

1. Second, to the extent that there is any doubt about that general proposition, it is dispelled by the language of the Agreement. Clause 15 of the Agreement deals with “Categories of Employment and Engagement” in language that is plain and intractable. It provides that an employee may be engaged in one of four categories listed and linked by “or”, a conjunction used to link alternatives. Clause 15.1 cannot sensibly be read as establishing anything other than four alternative modes of engagement and the words of that clause are, without more, a sufficient answer to Svitzer’s contention that fixed term employment is a sub-category of permanent full-time employment. However, the Deputy President did not address this issue at all. Incidentally, it may be noted that clause 15.2 uses the phrase “Full-time employment” as shorthand for “permanent full-time employment” suggesting that the phrases “full-time” and “permanent” and “permanent full-time” are, in the Svitzer idiom, interchangeable.

1. Third, clause 15.4 of the Agreement does not require any different result. The AIMPE and AMOU observed that the effect of this clause, in the Deputy President’s view (at paragraphs [94] – [96] of the Decision), was to provide that fixed-term employees are permanent employees. The AIMPE and AMOU expressed the view that the chain of reasoning of the passage is not entirely clear, and the proposition that fixed term employment is “ongoing… during the term of the employment” is perplexing.

1. Clause 15.4 of the Agreement does not qualify or alter clause 15.1. Rather, it deals with a different subject. Clause 15.1 is concerned with the mode of engagement of employees. Clause 15.4 is concerned with the employment conditions of fixed term employees. The effect of the prescription that a fixed term employee is one “who works on either a permanent full-time or permanent part-time basis” is that fixed term employees, during their engagement, “work” on the same terms and conditions as either permanent full-time or permanent part-time employees. It does not mean that the concept of fixed term employment is redefined for the purpose of the POPs. This view is said to be not only the natural reading of the language of the two provisions but has the additional advantage of allowing clauses 15.1 and 15.4 to be read harmoniously as part of a coherent whole, giving effect and context to each. Further, other terms of the Agreement confirm that this is the correct view. For example, clause 24.3 provides that fixed term employees “will be paid as a permanent full-time employee or as a permanent part-time employee, depending on their engagement”. This clause reiterates that fixed term employees are not permanent employees but are treated as such, for the purposes of most conditions of employment.

1. Fourth, the Agreement specifies in cl 41.2.1(iv) that “permanent full-time employees are the main source of crewing the port roster and permanent part-time employees supplement the roster.” That clause is characterised by the AIMPE and AMOU as an important statement of principle which is consistent with a view that fixed-term employees are to be employed only as an exception and is incompatible with Svitzer’s view that it is free to use fixed term employees at will, for any reason or no reason at all.

1. Fifth, the Deputy President found at paragraphs [99] – [100], as a matter of fact, that the parties’ mutual intention and contemplation was that rosters would be staffed by permanent full-time employees unless the POPs specified to the contrary. Sixth, the terms of the POPs themselves reinforce the view that fixed term employment on the one hand, and permanent or full-time employment on the other, are alternatives. Reference was specifically made to clause 1 of the Sydney POPs which is said to plainly distinguishes between the 15 full-time crews (dealt with in the first paragraph) and the two fixed term crews (dealt with in the second paragraph). It is also plain that clause 1, which permits the use of two fixed term crews, was directed to a particular purpose[42] and subject to specific requirements and conditions.

1. On the view advanced by Svitzer and accepted by the Deputy President, the two paragraphs in clause 1 deal with the same thing, and the provisions dealing with specific requirements of fixed term contracts, are otiose. On that view, it would not be necessary to negotiate or include the specific requirements and conditions relating to fixed term contracts, because it would always be open to Svitzer to utilise fixed term rather than full-time crews. The Western Port and Newcastle POPs were said to be even clearer in referring to “permanent full-time” and “permanents” respectively. As the Deputy President accepted, the Brisbane and Melbourne POPs are perfectly clear on the topic. The terms of the POPs, therefore, underline the facts that the parties in drafting the POPs carefully distinguished between different modes of engagement.

1. The AIMPE and AMOU submitted that this Full Bench should rehear the matter and upon a rehearing, determine that:

i.      references to “permanent full-time”, “permanent part-time”, “full-time”, “part-time” or “permanent” crews or employees in the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 and associated Port Operating Procedures do not encompass employees engaged under clause 15.4 of the Agreement for a fixed term or fixed task; and

1. the current Port Operating Procedures for the ports of Sydney, Newcastle, Melbourne, Brisbane and Western Port require Svitzer to replace a departing permanent full-time or permanent part-time employee with another permanent full-time or permanent part-time employee.

Submissions in response to Svitzer’s appeal

1. In relation to ground 1 of Svitzer’s appeal, the AIMPE and AMOU submitted that there are three errors in relation to Svitzer’s analysis. The first error was said to be Svitzer’s assumption that clause 15.1.1 confers a discretion on Svitzer, because it does not. In this respect, it was submitted that Svitzer is, prima facie, entitled to engage employees on whatever basis it chooses, and without necessarily adopting any particular label to describe the mode of engagement. It is not necessary that an enterprise agreement grants Svitzer a “discretion” to hire workers in one mode of engagement or another. Svitzer’s authority to offer employment on such terms as it chooses, is anterior to the Agreement.

1. Rather than granting Svitzer some right, clause 15.1 in fact confines the scope of Svitzer’s prima facie right to offer such terms and conditions as it may choose, in the following manner:

a)permitting Svitzer to engage employees only in one of four modes;

b)permitting Svitzer to engage employees only “in accordance with clauses 15.2 to 15.6”;

c)requiring that Svitzer, at the point of engagement, issue written advice as to specified matters;

d)setting out explicit requirements in respect of each of mode of engagement in clauses 15.2–15.6 (for example, cl 15.3.4 requires that permanent part-time employees are converted to full-time under certain conditions); and

e)imposing further requirements which are implicit or inherent in the labels “permanent full-time”, “permanent part-time”, “casual” and “fixed term”.

1. Further restrictions on Svitzer’s prima facie freedom to offer employment on any terms as it might wish, also appear in a series of other provisions of the Agreement, for example, clauses 16 and 24. Clause 16 requires that employees are engaged on a particular basis and following a particular process and clause 24 requires payment of specified salaries. The terms of the POPs dealing with minimum numbers of employees in each category of employment in each port are no different. They are, like the terms of the Agreement proper, restrictions on what would otherwise be Svitzer’s discretion at large. It follows that there is no inconsistency between the relevant terms of POPs and clause 15.1.1.

1. The second error is Svitzer’s contention that there is potential inconsistency between clause 15.1.1 and the impugned provisions of the POPs. Even if clause 15.1.1 were viewed as a grant rather than limitation of discretion, no inconsistency would arise. Clause 15.1.1 on the one hand, and various POP provisions on the other, deal with different subject matters. Clause 15.1.1. deals with types of engagement. The POPs deal with the minimum number of employees of each type required to be employed. One does not qualify the other; they are separate.

1. The third error is Svitzer’s assumption that inconsistency is demonstrated by showing that the terms of the POPs qualify clause 15.1.1. Even if (which is not accepted) the terms of the POPs qualified clause 15.1.1, that would not demonstrate inconsistency.[43] Where there is potential inconsistency in the terms of a single instrument, the tribunal should seek to reconcile the inconsistency and, as far as reasonably possible, construe the terms so as to give effect to both. [44] In this regard, the AIMPE and AMOU submitted that clause 15.1.1 requires Svitzer to engage employees in one of four modes. The POPs may limit the maximum number of employees of a particular kind in a particular port. There is no inconsistency. In addition, it was submitted that it is commonplace that various clauses of industrial instruments deal with similar or overlapping subject matters or that one clause qualifies another. It is doubtful in this case whether clause 15.1.1 and the POPs deal with the same subject matter to qualify one another, but even if they did, no inconsistency would thereby arise.

1. In relation to grounds 2 and 3 of Svitzer’s appeal, given that each set of POPs currently in place deals with the very subject matter of prescribing the numbers and types of employees engaged in a particular port, Svitzer’s argument is in effect, that the POPs which it has negotiated and enforced for some years are invalid and ineffective. That this argument was put, manifests surprisingly frank industrial cynicism, but in any event, the argument is wrong for the following reasons.

1. First, clause 41.2 does not delimit the subject matter of the POPs. Clauses 41.2.1 – 41.2.8 stipulates a broad range of subject matters. On its ordinary reading, clause 41.2 requires that the POPs deal with the matters set out in 41.2.1 – 41.2.8, but does not limit them to those matters. The correct position was said to have been identified in AMOU v Svitzer Australia Pty Ltd[45] where the Commission explained that “[the] provisions of subclause 41.2.1 are intended to provide a foundation for guidance in the formation of the POPs…”.

1. That the parties understood them in this way is manifest in the fact that the POPs negotiated by the parties deal with various subject matter in addition to the matters in 41.2.1–41.2.8. Second, and even if clause 41.2 was an exhaustive statement of the matters able to be dealt with by the POPs, crew compositions is a subject falling within the enumerated matters, given that the POPs deal with “port rosters”, “casual usage”, “relief arrangements” and “other issues of an operational nature, specific to the Port”, which include the composition of the workforce in each port.

1. Further, the AIMPE and AMOU submitted that the intention of the parties that workforce composition falls within the aegis of port rosters is apparent from the text of the Agreement itself, for example, in clauses 41.2.1(iv), 41.2.1(ii) and 15.2.1. The POPs provisions dealing with rosters commonly identify the category of crew allocated to particular work. The employment category of a crew is also commonly addressed in provisions dealing with relief arrangements and elsewhere. The rosters also often identify individual crew members, necessarily thereby prescribing certain numbers of full-time, part-time, casual and fixed-term employees. The POPs demonstrate that the terms “Roster” and “Crewing Complement” are interchangeable in the Svitzer context and typically deal with both work allocation and the number and type of crews to whom the work is allocated. As such, it was submitted that staffing, including the complement of permanent full-time, permanent part-time, fixed term / fixed task and casual employees, is a matter that falls squarely within the contemplation of clause 41.2.

1. In oral submissions in the appeal, Mr Fagir for the AIMPE and AMOU, pointed to several contextual matters and implications of the position in which it is said that Svitzer has placed itself, as follows. First, it was submitted that the catalyst for the dispute is Svitzer’s unilateral decision to begin replacing permanent employees with fixed term employees and that this is the plain effect of the evidence.[46] Second, the development was said to have occurred in the context where each of the sets of POPs deals – albeit in different ways – with the question of minimum numbers of employees in particular categories.[47] Most or all POPs deal with other matters that do not, on the face of it, fall squarely within the parameters of enumerated items in clause 41.2.1. Examples of such matters are the provision of e-tags in the Newcastle POPs and the Brisbane POPs which requires Svitzer to supply tea and Milo. Third, the POPs – or most of them – do not prevent Svitzer from hiring fixed term employees and specify minimum numbers of employees in particular categories.[48] Fourth, the POPs are not set in stone, but may be altered by either party giving notice, subject to the right of the counterparty to apply to the Commission to prevent the change.[49] Fifth, the Agreement with which the current matter is concerned, was negotiated and made, in the context of existing POPs in very similar or identical terms, in the context of identical or very similar language in a previous enterprise agreement. On one view, Svitzer should have taken this step in the present case.

1. In relation to Svitzer’s argument about clause 41.2, it was submitted that properly read, the provision requires that the POPs deal with at least those matters, but without preventing the POPs from dealing with other matters. The matters are intended to provide a foundation for guidance, rather than stating that these are the matters to be dealt with[50]. That these matters are the starting point for the procedures that are to be developed makes sense in the context of the Agreement including no daily span of hours and no daily, weekly, or monthly maximum ordinary hours. There are maximum weekly hours of 91, but setting aside ordinary hours, there are no maximum working hours. There are no shift loadings, weekend penalties, public holiday penalties or penalties for long shifts, unless either 12 or 14 hours are worked. It was submitted that the Agreement provides a bare bones framework, with all these critically important matters to be dealt with in the POPs. In this regard, the function of clause 41.2 is to ensure that whatever procedure is developed deals with at least those matters, and any other matters the parties agree.

1. In the alternative, it was submitted that if the POPs can only deal with the matters in clause 41.2, rosters in the context of Svitzer’s operations are complex and set out the whole framework for hours of work and terms and conditions beyond salaries, including minimum numbers of crews and types of employment, which are components of a scheme that ensures people work in a way that meets Svitzer’s needs but also ensures that there is sufficient capacity for leave to be taken and emergency work to be covered. In relation to Svitzer’s argument concerning inconsistency, it was submitted that the Agreement does not authorise Svitzer to hire employees. Instead, clause 15.1.1 limits Svitzer’s otherwise general discretion to hire employees on any terms and conditions it chooses, by requiring that employees are engaged in one of the categories in clause 15.1.1 and other prescribed rules in the Agreement. That awards and agreements are a series of parameters hedging the employer’s rights to offer employment on whatever terms it wishes, was said to be utterly conventional. It was also submitted that even if clause 15.1.1 is a grant of a licence to hire, the POPs do not stop that from occurring.

1. A further relevant consideration is that an agreement is read as a whole and as far as possible, giving effect to all its provisions. In the present case, the position is particularly clear because the parties have incorporated the POPs as terms of the Agreement and puts beyond doubt that one instrument is being construed. It was emphasised that the authorities relating to inconsistency referred to by Svitzer deal with conflict between different instruments. The approach to internal inconsistency is that it is to be resolved as far as possible, by giving each of the potentially conflicting provisions work to do, and the conventional way to do this is by taking one provision as qualifying the other. Another way of looking at internal inconsistency is to adopt a working assumption that when parties negotiate an agreement, they do so for a reason, so that it all operates in a harmonious and sensible way. In any event the direct inconsistency mode of analysis sits awkwardly in the present case where there are not competing sources of obligations with one entitled to prevail.

1. In conclusion, it was submitted that it is intractable that the employment categories in clause 15.1.1 are alternatives and it is not possible as a matter of basic English language to say that which is for a fixed term, is permanent. Clause 15.4 does not deem fixed term employment to be permanent, but simply provides that while fixed term employees are working, they work on the same terms and conditions as permanent employees.

Oral submissions in reply

1. In oral submissions in reply, it was pointed out that the roster in the Newcastle POPs[51] states that it is a “28 Crew + PPT Roster” and contains a series of references to “PPT Crews” which – albeit perhaps as a matter of inference – refers to permanent part-time crews. This was said to indicate how the mode of engagement is a critical part of the construction of the rosters and to indicate that the 2013 Newcastle POPs has three types of rosters comprising different building blocks including 8 permanent part-time crews. It was also submitted that the inability to accommodate fixed term employees in the Melbourne POPs is not something that suggests a problem with the position that the AIMPE and AMOU advance, given that the Agreement expressly provides at clause 41.2.1(iv) that permanent full-time employees are the main source of crewing the rosters.

1. In response to Svitzer’s submissions about the usefulness of dictionary definitions, it was pointed out the word in issue in the case cited, was “unlikely” and that the Court of Appeal held that this word could have a range of meanings depending on context. In the present case, it does not matter how many dictionaries are examined, a meaning of the word “permanent” which accommodates the idea of something with a fixed end point, will not be found.

Svitzer

1. In relation to the POPs that applied to the ports of Melbourne and Brisbane, Svitzer stated that there were disputes about whether those particular POPs operated to preclude the employment of fixed-term employees to fill vacant permanent positions. The essential issue was whether the POPs “fettered” Svitzer’s discretion under clause 15.1.1 to employ fixed-term employees. The resolution of that issue relevantly turned on the operation and effect of clause 5.3.1. In these appeal proceedings, Svitzer stated that it does not challenge the finding that the POPs in question contained the limitations identified in the Decision but seeks leave to appeal against the Deputy President’s findings that:

1. those limitations were not inconsistent with clause 15.1.1,

2. such that they did not engage clause 5.3.1, and

3. operated relevantly to impermissibly “fetter” Svitzer’s discretion under clause 15.1.1 to employ fixed-term employees.

1. In oral submissions in the appeal, Svitzer said that central to the success of its appeal are two propositions. Firstly, the unqualified, unfettered operation of clause 15.1.1 and secondly, that because the fetter found by the Deputy President had its location in the POPs and not in clause 42 of the Agreement proper, clause 5.3.1 was engaged, with the result that the fetter had no effect.

Ground 1

1. The correct construction of clause 15.1.1 is that it confers an unqualified – that is, unfettered – discretion on Svitzer to engage employees in any one of the four identified employment categories. In this regard, Svitzer said that the contrary conclusion at paragraph [68] of the Decision and the first sentence of paragraph [74], is incorrect. The heart of the error was said to be the first sentence in [70] and the second sentence in [74], which invert the correct analysis. It was submitted that what is determinative of the correct construction of clause 15.1.1 is that (a) the word “may”, used without qualification, indicates an unfettered discretion[52], and (b) the text of clause 15.1.1 contains no indication that the discretion is qualified or fettered in any way. This construction of clause 15.1.1 is said to be reinforced by its context. Clauses 15.2 to 15.5 deal comprehensively with each of the available employment categories. That being so, clause 15.1.1 would have no meaningful independent work to do[53] unless it is construed in the manner advanced.

1. Svitzer submitted that given that the Melbourne and Brisbane POPs qualify, or fetter, the unqualified and unfettered discretion conferred by clause 15.1.1, it necessarily follows that the POPs are inconsistent with clause 15.1.1, and to that extent, the POPs fall within clause 5.3.1, and are rendered of no effect. The boundaries of the operation of clause 5.3.1 are delineated by the extent of the inconsistency, being the extent to which the POPs fetter the discretion.

1. The concept of inconsistency adopted by Svitzer was said to follow the ordinary and natural meaning of inconsistency: “Without agreement or harmony…not agreeing in substance, spirit, or form; not in keeping; not consonant or in accordance; at variance, discordant, incompatible, incongruous”[54], and “lacking agreement, as one thing with another, or two or more things in relation to each other; at variance”.[55] The concept was said to be similar to the concept of direct inconsistency as it is used in analogous legal contexts involving:

• Two laws making “contradictory provision on the same topic”;[56]

• One instrument or law imposing an obligation greater than that of another with respect to the same subject matter;[57]

• Commonwealth law conferring an express permission to engage a category of person and a State law prohibiting such engagement;[58]

• Where a Federal award sets a rate of pay, any subsequent State instrument that requires a different rate of pay to be paid is directly inconsistent because it would be an “interference” of the adjustment of industrial relations made by the Federal award.”[59]

1. With reference to paragraphs [80], [83] and [88] of the Decision, Svitzer submitted that the Deputy President erred in his construction of clauses 41 and 15.1 for the following reasons:

• First, clause 41.2.1(ii) does not require that the “number of crews on duty and on leave” be included in the POPs. It merely requires that “rosters” should include the number of crews on duty and on leave. Moreover, clause 41.2.1 does not provide that the rosters themselves should be included in the POPs.

• Second, even if (contrary to the foregoing) the POPs were required by clause 41.2.1(ii) to include details of work days, component of predictable leave days, number of crews on duty and leave required to man the roster there is no reference in clause 41.2.1(ii) to the POPs including types/categories of employment in the POPs/roster. There is no reference to categories of employment in clause 41.2.1(ii). It would be entirely possible for Svitzer to specify the subject matters referenced in clause 41.2.1(ii) in the POPs or a roster without mentioning categories of employment. Accordingly, there is no permission given, nor contemplation, in clause 41.2.1 that the POPs or rosters would override the discretion conferred in clause 15.1.

• Third, while it is acknowledged that provisions of an enterprise agreement might sometimes overlap and limit other provisions in the same agreement (see [69], [84] and [86] of the Decision), this type of outcome is not available under the Agreement with respect to the POPs because of the operation of clause 5.3.1.

• Fourth, the Deputy President’s characterisation of the POPs “fettering” the discretion conferred by clause 15.1 has underplayed the extent of the inconsistency between the POPs and clause 15.1. Clause 15.1.1 operates to expressly authorise Svitzer to choose the manner in which it engages employees. The POPs operate to relevantly remove the discretion entirely, or to disentitle Svitzer to its exercise.

1. For these reasons, Svitzer submitted that the correct conclusion is that on the proper construction of the Agreement, the Deputy President should have found that the limitations on the use of fixed-term engagements in the Melbourne and Brisbane POPs were inconsistent with clause 15.1.1, and thus, by the operation of clause 5.3.1, of no effect to that extent.

1. In oral submissions, Mr I Neil SC for Svitzer reiterated that the discretion that clause 15.1.1 confers is an unqualified, unfettered discretion, to employ employees in any one of the four identified employment categories, but only in accordance with clauses 15.2 to 15.6. It was also submitted that it is not permissible as a process of construction to imply or import a term into an enterprise agreement and the present case turns on the express language of the relevant provisions. In response to questions from the Full Bench, it was submitted that the term “may” in clause 15.1 means that the clause operates permissively and that within that permission or discretion, there is no fetter. If there is to be a fetter, it must come from a term of the Agreement other than clause 15.1.1 but cannot come from a POP. It was accepted that the result of Svitzer’s contention is that the parties to POPs may solemnly make agreements that have no effect, because of the operation of clause 5.3.1. It was also accepted that this may not be consonant with the will of those who made the POPs. However, it would be entirely consonant with the objectively manifested intention of the parties to the enterprise agreement, who expressly turned their minds to the problem of inconsistency and the problem that would be posed if after making the Agreement, POPs were made that were inconsistent with the terms of the Agreement. In this regard, it was submitted that the parties resolved the problem of potential inconsistency by giving primacy to the Agreement and saying that inconsistent POPs would have no effect. [60]

1. In response to the proposition that the POPs provide for a process of change, it was submitted that it was not a process allowing for unilateral change. However, Counsel accepted the proposition that Svitzer’s construction would allow the Company to employ casual employees (subject to any limitation in the Agreement) instead of permanent full-time employees and submitted that this would involve the exercise of a right, as a POP providing to the contrary would have no effect.[61]

Grounds 2 and 3

1. In relation to appeal grounds 2 and 3, Svitzer submitted that the Deputy President correctly identified the contextual matters in (d) and (e) at paragraph [64] that there is a boundary of matters that may be dealt with by the POPs, and other “core matters” that are “quarantined” to the EA: that is, clause 41.2 operates to define the outer limit of the subject matters that can be dealt with by the POPs. In the proceedings at first instance, Svitzer submitted that the Agreement did not permit POPs to include terms prescribing the engagement status of employees in a port.[62] The terms of POPs that cover this subject matter are accordingly inconsistent with the Agreement and should have no effect. While this contention was identified by the Deputy President at paragraph [53], it was not otherwise addressed or resolved.

1. Svitzer’s primary submission in relation to appeal grounds 2 and 3 is that this error had the consequence that the Deputy President erroneously relied on provisions in the POPs that have no effect. In the alternative, Svitzer submitted that it was erroneously held at paragraphs [83] and [84] that clause 41.2.1(ii) permits the POPs to include terms about types of employment or that the clause permits rosters which deal with types of employment to be included in the POPs. The correct position, in Svitzer’s view, is that 41.2(ii) does not provide that the types of employment or the numbers of crews are to be included in the POPs, nor that rosters are to be included in the POPs.

1. Moreover, it was submitted that even if the Agreement mandated that rosters were to be included in the POPs (which it does not), there is no reason why the roster would need to specify a person’s employment type. The Decision appears to assume that a roster must by necessity include someone’s employment type: see paragraph [83]. Such an assumption is incorrect. Rosters (including the rosters in evidence[63]) typically include employee names, crewing numbers and identify which crew are rostered to work and when. However, there would ordinarily be no reason why a roster (which specifies who is to present to work at what times) would need to address a person’s employment category. It is superfluous to the purpose of a roster and the Agreement does not contemplate crew numbers being matters to be included in the POPs.

1. Svitzer’s contention is therefore that the inclusion of references to employment categories in the POPs is not a matter permitted to be included in POPs, and to that extent the POPs have no effect or, alternatively, are not incorporated in the Agreement (and therefore are not capable of being subject of the Agreement’s dispute resolution provisions) because they do not constitute authorised terms of a POPs.

The Western Port POPs

1. As the Deputy President noted, the Western Port POPs are slightly different to the Sydney POPs, and refer to two “permanent full-time crew 100%” and that “the rosters will allocate 2 full time crews to Western Port”. The Western Port POPs deal with relief arrangements to cover unplanned absences through the “engagement of additional personnel”. The term “engagement” is apt to refer to fixed term employees and the provision that where there are relief arrangements and where possible, a single relieving crew member will be employed on the one tug for the duration of the arrangement, indicates that relief will be provided by an employee engaged for a fixed term. However, there is no indication that fixed term employees cannot be engaged in other circumstances. The requirement for Svitzer to provide 2 full-time crews does not preclude those crews being constituted by fixed term employees engaged on the same basis as permanent full-time employees. Accordingly, the Deputy President’s conclusion that so long as Svitzer engages permanent full-time employees to staff the 2 full-time Western Port crews, it is open for Svitzer to engage those full-time employees on fixed-term contracts, is also correct.

Intention of the parties

1. In arriving at our conclusions, we accept the evidence of the witnesses for the Unions that the Unions and their members negotiating the POPs genuinely believed that they were agreeing that the numbers of full-time positions and employees would be maintained as permanent positions in return for the guarantees they gave to maintain continuity of operations and to meet the needs of Svitzer’s customers. As Counsel for Svitzer accepted in the appeal, the consequences of the Company’s argument might not be consonant with the will of the people who agreed on the terms of a particular POPs.[103]

1. We also accept the Company’s evidence that the matter of restricting the use of fixed term employees was not raised by the Unions in the negotiations for the Agreement or the POPs. In our view, this is understandable in the circumstances whereby fixed term employees had been used to replace permanent employees who were absent for reasons including illness or long service leave. In this regard, we accept that had the parties negotiating each of the POPs turned their minds to the circumstances in which positions that they had designated as “permanent” or “full time” could be filled by employees engaged for a specified period of time / task, the POPs may well have been drafted with more precision and in a way that avoided the present situation.

1. However, we agree with the Deputy President that there is insufficient evidence objectively establishing that that there was a meeting of the minds or a consensus, much less that any of parties to the Newcastle or Western Port POPs thought about the issue of whether employees engaged for a specified period of time / task could fill positions designated in POPs in that manner so as to establish a common understanding sufficient to support the construction advanced by the Unions. We do not accept that the fact Svitzer had only engaged fixed term employees to replace permanent employees who were temporarily absent for various reasons indicates anything other than mutual inadvertence or that no one had thought about the possibility that vacancies caused by permanent employees leaving employment, could also be filled by fixed term employees.

1. As we have noted, while a construction of an agreement that avoids inconvenience or injustice may reasonably be strained for, we are not free to give effect to some anteriorly derived notion of fairness regardless of the terms of the Agreement and the POPs.[104] We also note that the POPs are not set in stone and if either party seeks to amend the POPs there is a process set out in clause 41.4 of the Agreement. Further, where consensus on the proposed change cannot be reached, notice may be given requiring the change to be implemented and an application may be made to the Commission in accordance with the Dispute Resolution Procedure. In those circumstances the fairness of a position taken by either party may be relevant to the resolution of the dispute. 

Conclusion

1. We agree with the Deputy President’s conclusion in relation to clause 15.1.1 of the Agreement. The clause is permissive and allows for other provisions of the Agreement or the POPs to limit Svitzer’s discretion to engage employees in each of the categories of employment. Clause 41 of the Agreement provides for POPs to contain detailed provisions in relation to particular ports which may include rosters, the categories and classifications of employees who will be employed or engaged to work the rosters (including the name of each employee), how employees will be allocated to rosters or to tugboats, arrangements for taking leave and for relief in circumstances of absences of any kind. None of the disputed POPs contain any provision in relation to rostering or other permissible matters that is inconsistent with the Agreement and the terms of clause 5.3.1 are not engaged in relation to the disputed provisions of the Agreement and the manner in which the matters subject of the dispute are dealt with in the POPs.

1. We do not agree with the Deputy President’s conclusion that employees engaged for a specified period of time / task are permanent full-time (and by extension may be permanent part-time) employees.[105] The Agreement provides for four different categories of employment that are separately defined. Fixed term employment defined in clause 14.4 is not permanent employment as defined in clauses 15.2 and 15.3.  An employees engaged for a specified period of time / task as defined in clause 15.4 of the Agreement is not a “kind of full-time permanent employee”[106]. Permanent employment is defined in clauses 15.2 and 15.3 of the Agreement in a manner that excludes employment for a specified period of time. However, we do accept that POPs may allow employees engaged for a specified period of time / task to fill positions designated as “permanent” in a roster at a particular port. We also accept that POPs may limit the discretion of Svitzer to engage employees for a specified period of time / task in particular positions at a port.

1. The primary issue in dispute is whether any of the POPs considered by the Deputy President preclude Svitzer from replacing an employee in a position designated as “permanent” with an employee engaged for a specified period of time / task. In relation to this question, and although for partially different reasons, we agree with the Deputy President’s conclusions in relation to the Brisbane and Melbourne POPs at paragraphs [115], [117], [119], [125] – [126] and [131] of the Decision respectively. We also agree with each of the Deputy President’s conclusion in relation to the Sydney, Newcastle, and Western Port POPs and that those POPs do not preclude that Svitzer from replacing any employee or filling any position with an employee engaged a specified period of time / task at paragraphs [115], [117] and [119] respectively.

Disposition of appeals

1. In relation to the MUA appeal, while we do not accept that the incorrect conclusion that fixed term employees are permanent employees ultimately affected the Deputy President’s Decision, we uphold grounds 1, 2 and 4. We otherwise dismiss the MUA appeal.

1. In relation to the appeals brought by the AIMPE and the AMOU, we uphold grounds 1 and 2 to the extent necessary to give effect to our decision. We reject each of the grounds of Svitzer’s appeal.

Order

1. We Order as follows:

1. We grant permission to appeal in each of the three appeals.

2. We uphold grounds 1, 2 and 4 of the MUA appeal and grounds 1 and 2 of the AIMPE and AMOU appeal to the extent necessary to give effect to our decision that the findings in the Deputy President’s Decision that employees engaged for a specified period of time / task as defined in clause 15.4 of the Agreement are permanent part-time or permanent full-time employees as defined in clauses 15.2 and 15.3.

3. We otherwise dismiss all appeals.

VICE PRESIDENT

Appearances:

Mr A Neal of Counsel, for the MUA
Mr O Fagir of Counsel, for the AIMPE and AMOU.
Mr I Neil SC of Counsel, instructed by Australian Business Lawyers & Advisors, for Svitzer.

Hearing details:

2023:
Sydney
22 March.

ANNEXURE A

Relevant Provisions of the Agreement

“5.3       Interaction with POPs

5.3.1    The POPs are incorporated as a term of this Agreement for the particular Port concerned. However, this Agreement prevails over applicable Port Operating Procedures, which have no effect to the extent of any inconsistency with any term of this Agreement.”

“15.       Categories of Employment and Engagement

15.1     Employment Categories

15.1.1      An employee under this Agreement may be engaged in one of the following employment categories:

·   permanent full-time,

·   permanent part-time,

·   employee engaged for a specified period of time / task, or

·   casual employment,

in accordance with clauses 15.2 to 15.6 respectively.

15.1.2      At the time of engagement an employee will be advised in writing of:

(i)     the category of employment in which the person is employed and

(ii)     as appropriate, the duration or expected duration of the engagement and the specified period of time or task;

(iii)    any requirement and likely duration of induction in relation to clause 23.

15.2     Full-time employment

15.2.1      A permanent full-time employee is an employee who is engaged to work on a full-time basis in accordance with this Agreement and the Port Operating Procedures in the port in which the employee is engaged.

15.3     Permanent Part-time employment

15.3.1      Subject to the terms of this Agreement, a part-time employee receives, on a pro­rata basis, equivalent salary and conditions as a full-time employee.

15.3.2      A permanent part-time employee is an employee who is engaged for a prescribed proportion (%) of full-time employment (less than 100%), and who is required to work at least the number of corresponding days per annum. (For example, an employee who is engaged in a 50% permanent part-time role will be required to work at least 91 days per annum.)

15.3.3      Review of permanent part-time employee's percentage (%)

(i)      The proportionality of the engagement of each permanent part-time employee will be reviewed each year on the employee's anniversary date.

(ii)    The review will include consideration of the proportion of days worked by the employee in the previous year, and the reasons for any major divergence between the employee's percentage and the proportion of work actually performed.

(iii)   If there is major divergence between the employee's percentage and the proportion of work actually performed by the employee, the employee's percentage will be either increased or decreased for the next 12 months to reflect the previous year's work activity, unless there are exceptional circumstances that explain the divergence; an adjustment to the percentage will not fall below the prescribed percentage (%) of full-time employment under which the employee was first engaged.

15.3.4      Conversion of permanent part-time employment to permanent full-time employment

(i)      This clause 15.3.4 commences operation on 1 January 2017.

(ii)    If a permanent part-time employee worked, on average, at least the number of days ordinarily worked by a full-time employee (100%) annually, the employee may make an election to convert their employment to full-time employment, if the employment is to continue beyond the conversion process, in accordance with this clause 15.3.4.

Note: Conversion to full-time employment under this clause 15.3.4 does not guarantee predictable rostered leave.

(iii)   Availability and Timing of election:

A. For permanent part-time employees who were in permanent part-time employment on the Commencement Date: on 1 January 2017 for 2017, and after 2017, annually on the employee's anniversary date; or

B. For permanent part-time employees not covered by paragraph A: on the employee's anniversary date.

(iv)    Process for election

A. A permanent part-time employee, who has met the requirements in paragraph (ii), may provide Svitzer with written notice electing to convert their contract of employment to full­time employment within four (4) weeks after the date specified in paragraph (iii).

B. Within four (4) weeks of receiving such notice the Company must consent to or refuse the election but must not unreasonably so refuse.

C. Once a permanent part-time employee has elected to become and been converted to a full-time employee, the employee may only revert to permanent part-time employment by written agreement between Svitzer and the employee.

D. An employee must not be engaged and re-engaged to avoid any obligation under this clause 15.3.4.

15.3.5      Job sharing

Job sharing arrangements between permanent full-time employees may be implemented where there has been mutual agreement between the employees concerned and the Company, and consultation has occurred with the Union.

15.4     Employment for a specified period of time or specified task

15.4.1      An employee engaged for a specified period of time or a specified task is an employee who works on either a permanent full-time or permanent part-time basis, but is engaged for a specified period of time or specified task.

15.5     Casual employment

15.5.1      A casual employee is an employee who is not regularly rostered to work, but is engaged daily for periods of one day or more.

15.5.2      Terms of casual engagement

(i)      Subject to clause 15.5.2(ii), daily start and finish times and the timing and duration of breaks for casual employees will align with those times that apply to permanent employees in the port.

(ii)    Where Svitzer requires the casual employee(s) to work at different times due to unusual operational requirements, the start time will commence at the start time notified.

(iii)   Where the start time notified is brought ahead and the casual employee is available for duty then the casual engagement will commence from the new start time.

15.6     Trainees

15.6.1      A person may be engaged as a Trainee. Remuneration and conditions of Trainees are set out in clause 24.5.

15.6.2 When Trainees satisfactorily complete their Traineeship, they will become eligible to apply to Svitzer for available employment as an Employee under one of the employment categories specified in clauses 15.2 to 15.5 above. However, there is no implied right for Trainees to be so engaged.”

“41.       Hours of Work, Rosters and Meals

41.1     There will be a set of Port Operating Procedures in each port. Port Operating Procedures must be reviewed at least annually. Svitzer will prepare and distribute to the Unions a report on the status of the Port Operating Procedures by 31 March. Subject to clause 41.4, the annual review must be completed by 30 April. Following the review Svitzer will prepare another status report by 14 May.

41.2     The Port Operating Procedures (when made or varied) will set out details in respect of the following subject matter, which provide a foundation for the guidance to the parties in developing Port Operating Procedures:

41.2.1      Port rosters

(i)      Towage operations are carried out over 24 hours per day on every day of the year;

(ii)    rosters will as far as practicable include the detail of work days, the component of predictable leave days, and the number of crews on duty and on leave required to man the roster;

(iii)   Off-duty periods for permanent full-time employees:

A. leave for permanent full-time employees should to the greatest practical extent be predictable;

B. leave in running arrangements may be implemented where it is impracticable to predict leave periods to their full extent or (notwithstanding clause 15.2.1) when an employee's employment is converted to full-time employment under clause 15.3.4.

(iv)    Off-duty periods for permanent part-time employees:

Permanent full-time employees are the main source of crewing the port roster and permanent part-time employees supplement the roster. Where a port cannot support a roster for permanent part-time employees, off-duty periods will be programmed as follows:

A. Permanent part-time employees may nominate to take seven (7) days free of duty each month (non-cumulative); or

B. Permanent part-time employees instead may make an annual election to take five (5) days free of duty each month (non cumulative) PLUS one off-duty period of 25 days, amounting to a “30 day block-out duty free period” per calendar year. Where agreement between Svitzer and the employee is not possible on the programming of the “30 day block-out duty free period”:

·the employee must give the Company 3 months’ notice of their requested nominated “30 day block-out duty free period”; and

·Svitzer must not unreasonably refuse the employee’s request.

Permanent part-time employees must otherwise be available for relief work duty in accordance with clause 41.2.7(i)A.

41.2.2      Work orders:

(i)      should include details of the procedures to be used for the giving, receipt and acknowledgement of work orders;

(ii)    SMS messages may be used to communicate orders for the purpose of minimising off-duty disruption to employees;

(iii)   Employees should not be contacted unnecessarily during breaks.

(iv)    Allocation of work.

41.2.3      Availability

The objective of any duty roster is to ensure that sufficient employees are available at any time to satisfy customers' requirements on no more than 2 hours notice, unless the Port Operating Procedures specify otherwise to meet those requirements.

41.2.4      Hours of work, regular duty requirements and off-duty periods

(i)      Scheduled hours of work should not exceed 12 hours. That is:

A. under the Port Operating Procedures, the last towage job in a period of continuous duty must not be scheduled more than 11 hours and 45 minutes after that period has commenced; and

B. jobs commenced prior to the 12th hour shall be completed.

The parameters for scheduling the last job in the period must be set out in the Port Operating Procedures.

(ii)    If an employee is required to be on continuous duty for 14 hours or more, the employee must be given a rest break of 10 hours at the cessation of that period of duty before the commencement of the next period of duty.

(iii)   A period of continuous duty must not exceed 16 hours.

(iv)    A nominated rest break of 6 hours or more breaks the continuity of a period of duty.

(v)     Employees will be entitled to a meal break on completion of 5 hours' duty. Meal breaks must be taken flexibly. For the avoidance of doubt meal breaks must not be taken in a manner or at a time that would interrupt port operations.

41.2.5      Employees must not work more than 14 days in excess of the number of days a full-time employee is required to work in a calendar year under the operating roster in the port (Maximum Days). For the purpose of this clause 41.2.5, the following days will be disregarded in calculating the Maximum Days:

·   Work days when the employee does not perform ship-assist operations on a tug boat in any port (harbour towage);

·   days when an employee attends shoreside meetings;

·   Outside Work days;

·   days attending emergencies, and

·   days undertaking docking work.

41.2.6      The parties will keep fatigue management and the operation of the roster under review in each port, through the local Work Health and Safety committee, so as to ensure the proper and efficient management of fatigue. Because of the unpredictability of vessel movements the strict application of the STCW Code as above may not always be possible, however, an employee must be provided with minimum aggregate rest of 77 hours in 7 days consistently with Marine Orders Part 28, section 4.

41.2.7      Relief arrangements to be utilised in the Port and casual usage.

(i)      Relief work requirements to supplement the roster will usually be covered:

A. first call- permanent part-time employees (other than during an off-duty period pursuant to clause 41.2.1 (iv), or when they are otherwise unavailable under this Agreement);

B. second call- casual employees;

C. third call - permanent full-time employees on rostered leave.

(ii)    Permanent full-time employees on rostered leave are not obliged to be available for relief work, however subject to clause 41.2.5, every employee and the Unions will ensure that, under normal circumstances as described in the Port Operating Procedures, the port operations are not compromised by unavailability of relief personnel to cover short term or unplanned absences.

(iii)   Casual usage:

The incidence of relief days, measured over a representative period (say 6 months), shall be reviewed in conjunction with the annual review of the Port Operating Procedures.

41.2.8      Other issues of an operational nature, specific to the Port.

Port Operating Procedures should not prevent or unreasonably restrict Svitzer's ability to meet customer and port requirements on Saturdays, Sundays or Public Holidays.

41.3     Port Operating Procedures must be signed by the Port Manager and authorised union representatives.

41.4     Changes to Port Operating Procedures may be made by agreement following consultation, or as follows:

(i)      Where Svitzer is proposing the change it will notify the Union in writing of the proposed changes and where the Union is proposing the change it will likewise notify Svitzer in writing;

(ii)    The parties will commence consultation at a local level about the matters set out above within seven days of such notification.

(iii)   Consultation at local level will continue with a view to reaching consensus about the changes, and then at national level if the matter cannot be resolved locally.

(iv)    In the event that the parties cannot achieve a consensus within a reasonable timeframe, the party proposing the change may give 28 days notice requiring that the change be implemented.

(v)     During the notice period, either party may make application in accordance with the Dispute Resolution Procedure and if such application is made, the status quo will remain until the matter is settled.

41.5     A copy of this Agreement and the Port Operating Procedures will be kept in a convenient location at the Port.

41.6     During the term of this Agreement, the Company and the Unions will meet to develop a Port Operating Procedures template.

“42.       Leave

42.1     This clause operates in conjunction with the NES. The provisions of this clause are intended to satisfy the provisions in the NES concerning maximum weekly hours of work, annual leave and public holidays.

42.2     The roster that prevails in the port under the applicable Port Operating Procedures will provide for the number of days free of duty set out in clause 42.3 averaged over the applicable roster cycle.

42.3     Entitlement to leave (“even-time leave”)

42.3.1      A permanent full-time Employee will be entitled to 182 days free of duty in each year (which may be averaged over the applicable roster cycle), or to proportionate leave for any continuous service of less than a year.

42.3.2      A permanent part-time Employee will be entitled to the leave granted to a full-time Employee on a pro-rata basis. (For example, an employee who is engaged in a 50% permanent part-time role will be entitled to 91 days free of duty in each year of continuous service.)

42.3.3      An Employee who is engaged for a specified period of time or a specified task, will be entitled pro-rata, to the leave granted to a full-time Employee based on the period of the respective engagement.

42.4     The leave prescribed in this clause 42 includes the following entitlements of full-time employees (who may otherwise have been engaged on a Monday to Friday basis in accordance with the terms of the Award):

(i)      104 days of leave, being in lieu of weekends;

(ii)    5 weeks of paid annual leave for shiftworkers;

(iii)   public holiday entitlements;

(iv)    an additional 28 days leave in recognition of the 35-hour week.

42.5     For each day of absence referred to in clause 38, an employee's leave entitlement under this clause 42 will be debited by one day.”

[1] [2023] FWC 55 (Decision).

[2] C2023/435.

[3] C2023/437: Joint Appeal by the AIMPE and AMOU.

[4] C2023/438.

[5] Agreement: clause 4.1.3.

[6] Decision at [50].

[7] Decision at [56].

[8] Decision at [28].

[9] Decision at [30].

[10] Decision at [61].

[11] Decision at [68]-[74].

[12] Decision at [83]-[86].

[13] Decision at [89].

[14] Decision at [92].

[15] Decision at [100].

[16] Decision at [104].

[17] Decision at [105].

[18] (2018) 264 CLR 541 at 563, 591-593, [2018] HCA 30 at [48]-[49] and [150]-[154].

[19] Ibid at [49].

[20] Ibid.

[21] Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30].

[22] AB1082 to AB1084, CFMMEU’s Reply Submissions at [12] to [15].

[23]AB490 and AB493, Witness Statement of Paul Garrett at PG10; AB598 & 607, Witness Statement of Dave Ball at DB4; AB745, Witness Statement of Glen Williams at GW7; AB750 and AB760, Witness Statement of Glen Williams at GW8; AB870 and AB880, Witness Statement of Jason Steen at JS6.

[24] AB34, Decision at [28]; AB892 to 893, Witness Statement of Divya Gomez at [11] to [12]; AB1008, Witness Statement of Sarah Lacey at [14]; AB1009 at [17]; AB1009 to AB1010 at [23]; AB129, Evidence of Sarah Lacey PN1071 to PN1078; AB117, Evidence of Divya Gomez at PN876.

[25] AB45 at [98] to [99] citing WorkPac Pty Ltd v Skene (2018) 264 FCR 536, [2018] FCAFC 131 at [197].

[26] [2006] FCA 813; (2006) 153 IR 426 at [57].

[27] [2020] FCA 1173 at [128].

[28] AB219, Witness Statement of Paul Garrett at [38] to [39]. It was Mr Garrett’s unchallenged evidence that the terms “permanent” and “full – time” were used interchangeably in the negotiations for the 2016 Agreement and were not understood by the parties to include fixed – term contracts.

[29] AB42 to 44, Decision at [75] to [89]

[30] AB46.

[31] AB49.

[32] AB48 to AB49, Decision at [120] to [126].

[33] AB1152, Sydney POPs at clause 1.

[34] AB168 to AB170 at PN491 to PN525; AB181 to AB182 at PN675 to PN690.

[35] AB1160, Sydney POPs at clause 5.

[36] AB51, Decision at [141].

[37] AB92 to AB93, Evidence of Glen Williams at PN451 to PN456.

[38] AB51, Decision at [141]

[39] AB51, Decision at [141].

[40] AB219, Witness Statement of Paul Garrett at [38].

[41] Pocket Oxford Dictionary, Clarendon Press Oxford, First Edition.

[42] Which the Deputy President identified as being to service a particular contract: paragraphs [103], [114].

[43] Pagnan SpA v Tradax Ocean Transportation SA [1987] 3 All ER 565; [1987] 2 Lloyd's Rep 342; in the context of enterprise agreements, see also ARTBIU v KDR Victoria Pty Ltd t/a Yarra Trams [2021] FCA 1377 at [57].

[44] Bradcorp Wilton Park Pty Limited v Country Garden Wilton West Pty Limited [2019] NSWSC 1407; 13 ARLR 333 at [228] citing Forbes v Git and Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter.

[45] [2018] FWC 1755 at [109].

[46] Transcript of Proceedings 22 March 2023 at PN219.

[47] Ibid at PN221.

[48] Ibid at PN224.

[49] Ibid at PN226.

[50] Ibid at PN249.

[51] AB720.

[52] Ex parte Gleeson [1907] VLR 368 per Cussen J at 373; R v The Workers’ Compensation Board of Queensland; Ex parte Heffernan [1979] Qd R 563 per Kelly J at 5-6, Commissioner for Superannuation v Hastings (1986) 70 ALR 625 per Woodward, Kelly and Wilcox JJ at [14], Four Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [37], [38].

[53] Cf. Berri at [44], Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union[2019] FWC 893 at [40], Ricegrowers Limited T/A SunRice, CopRice Feeds and Australian Grain Storage Pty Ltd v United Workers' Union[2022] FWCFB 205 at [51] and in the legislative context see: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71].

[54] Oxford English Dictionary.

[55] Macquarie Dictionary.

[56] Re Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 14 ALR 257 at 270.

[57] Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 per Barwick CJ at 258, per Menzies J at 272.

[58] Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 per Latham CJ at 160; see also Clyde Engineering Co v Cowburn (1926) 37 CLR 466 per Knox CJ and Gavan Duffy J at 477.

[59] Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 per Menzies J at 272, Clyde Engineering Co v Cowburn (1926) 37 CLR 466 per Isaacs J at 499.

[60] Transcript of Proceedings on 22 March 2023 at PN127.

[61] Ibid at PN109 – PN118; PN124, PN149 – PN152.

[62] See Svitzer First Instance Submissions at section 6, AB1054f.

[63] See Newcastle Rosters at AB1199, AB1200; See Brisbane Rosters at AB1213-AB216.

[64] Transcript of Proceedings on 22 March 2023 at PN195.

[65] Decision at [53].

[66] Transcript PN199 – PN201.

[67] Delpachitra v UTS [2023] FCA 18 at [64]-[67].

[68] See clauses 16.1 (AB1103), 16.5 (AB1106), 20 (AB1114), 22.1 (AB1118), 28 (AB1125), clause 29.1 (AB1126), 41.2.7 (AB1136), and 44 (AB1139). An analysis demonstrating the treatment of fixed-term employees without differentiation from other permanent employees in each of these clauses appears at AB1051-AB1053.

[69] Amcor Ltd v CFMEU (2005) 222 CLR 241 at [96].

[70] Decision at [105].

[71] Sheehan v Thiess Pty Ltd [2019] FCA 1762 at [22], [23]; ARTBIU v KDR Victoria Pty Ltd t/a Yarra Trams (2021) [2021] FCA 1377 at [61], [63]

[72] See table of objections filed in the proceedings below, attached to this Outline.

[73] The basis of this ruling arises from an earlier ruling regarding paragraph 37 of the Garrett Statement at PN129 AB72. The ruling regarding paragraph 37 is then applied to the balance of the objections at PN132-PN134 (AB72).

[74] TAL Life Ltd v Shuetrim 91 NSWLR at 439.

[75] (2005) 222 CLR 241.

[76] [2017] FWCFB 3005 at [114].

[77] [2022] FWCFB [7].

[78] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]

[79] Op. cit. at [29].

[80] AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital [2021] FWCFB 6044.

[81] [2004] HCA 52, 219 CLR 165.

[82] Ibid at [40].

[83] CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine[2017] FWCFB 4487; citing Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 at [71] – [85].

[84] [2006] FCA 11.

[85] Ibid at [44].

[86] (2006) 151 FCR 513.

[87] (1996) 66 IR 182.

[88] Ibid at 184 – 185.

[89] Op. cit. at [44].

[90] (1998) 194 CLR 355.

[91] Ibid at [70] – [71].

[92] (2002) 240 CLR 45 at 80. Cited in Berri at [44] and by a Full Bench of the Commission in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union[2017] FWCFB 1621 at [21].

[93] Get citation.

[94] Ward v Williams (1954 – 55) 92 CLR 496.

[95] Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 [2016] FWCA 794.

[96] Creighton & Stewart Labour Law, Fifth Edition, The Federation Press 2010, [18.09] page 585.

[97] Such as in the Melbourne POPs for certain terms.

[98] Appeal Book page 1201.

[99] AB1172.

[100] Appeal Book pages 1152 – 1164.

[101] AB1190 – 1200.

[102] AB1198.

[103] Transcript of Proceedings on 22 March 2023 at PN124, PN149 – PN152.

[104] Kucks v CSR Limited (1996) 66 IR 182 at 184.

[105] Decision at [90] – 96], [105].

[106] Ibid at [93], [105].

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