Construction, Forestry, Maritime, Mining and Energy Union v Teekay Marine Resources Pty Ltd
[2022] FWC 2819
•31 OCTOBER 2022
| [2022] FWC 2819 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
v
Teekay Marine Resources Pty Ltd
(C2022/2545)
| COMMISSIONER MCKINNON | SYDNEY, 31 OCTOBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
The Ocean Protector is a support vessel involved in Australia’s offshore naval operations crewed by employees of the Australian Border Force (ABF) and Teekay Marine Resources Pty Ltd (Teekay). Between 2020 and early 2022, pandemic-related domestic travel restrictions, including border closures and mandatory quarantine periods, disrupted vessel operations and increased costs. They also saw the crew of the Ocean Protector spending more time away from home than had previously been required.
In a bid to mitigate the effect of travel restrictions, Teekay and the ABF decided to work towards combined charter flights for the transport of crew to and from the vessel. Separately, in a bid to improve work/life balance and allow employees more quality time at home, Teekay and the Construction, Forestry, Maritime, Mining and Energy Union negotiated an arrangement for mid‑week crew changes. The arrangement was formalised as a term of the Teekay Marine Resources Pty Ltd CFMMEU Ocean Protector Enterprise Agreement 2021 (the Agreement) which was approved by the Commission on 25 August 2021.
On 23 November 2021, Teekay notified the Union that combined charter flights had been agreed with the ABF and that they needed to discuss a related change in roster, or ‘swing cycle’. Consultation ensued but no agreement was reached. The Union applied to the Commission to deal with the dispute under clause 22 of the Agreement. The dispute resolution process has been followed and the parties now consent to arbitration. I find jurisdiction to deal with the dispute.
The question is whether Teekay can introduce a swing cycle of 29 days on, 29 days off, in place of its current swing cycle of 28 days on, 28 days off, under the Agreement.
The answer to this question is a qualified “Yes”, and these are my reasons.
The Agreement
The Agreement is a single enterprise agreement covering Teekay, the Union and employees of Teekay who are employed to work on the Ocean Protector under the Agreement. The Agreement incorporates terms of the Seagoing Industry Award 2010 (the Award), by providing for conditions or clauses in the Award that are not covered by the Agreement to automatically apply to employees. The Agreement is read and interpreted in conjunction with the National Employment Standards ("NES"). Where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision applies to the extent of the inconsistency.
The Agreement has four objectives, described in clause 2 of the Agreement. These are to:
“(a) maintain a safe and healthy workplace where all parties are encouraged to take responsibility for their safety and the safety of their colleagues; and
(b) avoid industrial action by following at all times the agreed dispute resolution procedures so as to develop a dispute free workplace culture;
(c) build strong lasting professional relationships with all Defence personnel and employees while producing high quality services for any operations conducted as part of a combined Merchant; and
(d) demonstrate to the Commonwealth Government the cost benefits and skills professionalism advantages in employment of Merchant Navy crews to assist in Defence operations and training exercises for the benefit of future seafarer employment opportunities.”
Clause 16.1 of the Agreement is the term at issue in this proceeding. It says this:
“16.1 Swing cycle
(a) The initial swing cycle for working on the Vessel will be a minimum swing cycle of 4 weeks on 4 weeks off.
(b) Providing the next port is a "swing port", the day of the swing and port may be extended for up to two days to ensure that transport costs are minimised and or equalisation of leave between ratings is maintained. A days leave accrual for each day of duty on board. Leave will accrue at the rate of one day’s paid leave for each day of duty on a ship. For the purposes of this clause, a day of duty on the Vessel includes the day the Employee joins the Vessel, but it does not include the discharge day (no leave accrued or taken) being the day the Employee leaves the Vessel.
(c) Teekay agree to change the normal crew change day to a mid-week day instead of a weekend day to enable employees to have more weekend days at home with their families during their leave. Teekay use a mutually agreed airline/charter provider for the duration of this Enterprise Agreement subject to satisfactory performance of the airline/charter provider. Any change to this arrangement would be subject to consultation with the employees and MUA.”
‘Swing cycle’ is defined in clause 2 of the Award as “a cycle made up of working and non-working days”. The definition applies as a term of the Agreement. Clause 12.6 of the Award, which is also a term of the Agreement, permits employees who go to sea to be engaged to work on a swing cycle.
Clause 16.2 of the Agreement deals with hours of work and rest periods. It requires employees to work cooperatively to ensure the safe and efficient operation of the vessel. It sets ordinary hours of work of 8 hours per day, 7 days per week, and limits the type of work that can be performed in excess of these hours. It requires the Shipboard Operations Committee to ensure that hours are fair for the crew and ensure adequate rest, and the Master to monitor the effectiveness of this requirement. It provides for record keeping by individuals under relevant Marine Orders.
Clause 16.3 of the Agreement deals with “Overcycle”:
“When an employee exceeds their swing length by three days (counting from and including the nominated swing day) the overcycle payment shall apply for each day in excess of the swing period.
The over cycle penalty calculated on 30% of the employee’s current rate of pay.
The over cycle penalty does not apply to any additional leave accrued during the over cycle period.
The over cycle penalty does not apply to any over cycle period due to an employee paying off on compassionate leave. No seafarer on leave or off duty shall be disadvantaged by an opposite swing employee receiving overcycle payments. For clarity, an off-swing employee denied the opportunity to return to their usual swing shall continue to accrue leave during that period they would otherwise have worked.”
Clause 20.2 of the Agreement deals with consultation about changes to regular swing cycles or ordinary hours of work and provides as follows:
“(a) Where the Employer proposes to change an Employee’s regular swing cycle or ordinary hours of work, the Employer must consult with the Employee or Employees affected and their representatives, if any, about the proposed change.
(b) The Employer must:
(i) provide to the Employee or Employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the Employee’s regular swing cycle or ordinary hours of work and when that change is proposed to commence);
(ii) invite the Employee or Employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and
(iii) give consideration to any views about the impact of the proposed change that are given by the Employee or Employees concerned and/or their representatives.
(c) The requirement to consult under this clause does not apply where an Employee has irregular, sporadic or unpredictable working hours.
(d) These provisions are to be read in conjunction with other Agreement provisions concerning the scheduling of work and notice requirements.”
Finally, and for contextual reasons, clause 13.6(c)(i) and the final paragraph of clause 27 of the Agreement are said to be relevant to the dispute. Respectively, these say:
Clause 13.6(c)(i):
“Employees may only vary their homeport status with the agreement of the Employer.”
Clause 27:
“Teekay agree to change the internet service to a mutually agreed service provider to enable employees to have regular voice calls with their families while the vessel is at sea or at anchor in remote areas. Any change to the internet service provider would be subject to consultation with the employees and MUA.”
Consideration
The principles to be applied in the interpretation of enterprise agreements are well settled.[1] The first step is to determine whether the disputed terms of the agreement have a plain meaning or are instead ambiguous or susceptible to more than one meaning. The language of disputed terms is to be construed objectively, having regard to both context and purpose, and a narrow or pedantic approach to interpretation is to be avoided. Where there is ambiguity, evidence of surrounding circumstances can be admitted, but only to establish objective background facts relevant to the meaning of disputed terms.
In my view, clause 16 of the Agreement is not ambiguous. Its purpose is to supplement clause 12.6 of the Award, which permits seafarers to be engaged on swing cycles, by providing detail about how the swing cycle for the Ocean Protector will work. As clause 16.1 makes clear, the initial swing cycle for working on the vessel will be a minimum swing cycle of 4 weeks on and 4 weeks off. This swing cycle is not fixed by clause 16.1, either for the life of the Agreement or for some other definite period. It may change. This is clear from the use of the words “initial” and “minimum” in clause 16.1(a) of the Agreement, read together with clause 20.2 of the Agreement which expressly contemplates changes to an employee’s regular swing cycle.
Further evidence that swing cycles may be changed under the Agreement is found in clause 16.1(b) of the Agreement, which allows Teekay to extend the swing cycle on approach to a swing port by up to two days, for reasons that include to ensure that transport costs are minimised. For this reason alone, clause 16.1(b) might permit the practical implementation of 29-day swings where necessary to ensure that employees could join combined charter flights, separate to whatever the rostered swing cycle might be.
Clause 16.1(c) of the Agreement commits Teekay to make a change so that the “normal crew change day” is a midweek day, instead of a weekend day. That a change is required suggests that before the Agreement commenced, there was a practice of scheduling crew change days on weekends. The parties have agreed that this practice will change upon commencement of the Agreement so that crew change days will no longer normally be on the weekends.
The commitment to change the crew change day in clause 16.1(c) of the Agreement must be understood in the context of the Agreement as a whole. By clause 16.1(a), the parties have agreed that the initial swing cycle will be an ‘even’ one, where each swing is at least 28 days. On an even swing cycle, the crew change day will be scheduled for the same day each four weeks at the end of the 28‑day swing. In part, this explains the reference to “the normal” crew change day in clause 16.1(c). But the parties have also agreed that this is subject to change, for example under clause 16.1(b), or after consultation under clauses 16.1(c) and 20.2 of the Agreement, and that the normal crew change day will be on a midweek day.
While it may be “cast in the language of obligation, not aspiration”, clause 16.1(a) of the Agreement sets only the minimum parameters of the first swing cycle that will apply under the Agreement. Clause 16.1(c) then commits Teekay to change the normal crew day from what it was before, and to use a mutually agreed airline/charter provider subject to change after consultation. The structure of clause 16.1(c), with three sentences bundled together under one subclause, indicates that these two separate commitments are what forms “this arrangement” for the purposes of the consultation required under clause 16.1(c).
A comparison of clauses 16.1(c) and 27 of the Agreement, which deals with employee amenities, is also instructive. Each has the purpose of supporting the connection between seafarers and their families – in the case of clause 16.1(c), by creating the opportunity for more quality time at home, and in clause 27, by ensuring that employees can have regular voice calls with their families.
The language used in clause 16.1(c) and clause 27 of the Agreement is similar. Both clauses commit Teekay to make a change: in clause 16.1(c) of the Agreement, to the crew change day and in clause 27, to the internet service provider. Clause 16.1(c) commits Teekay to a mutually agreed airline/charter provider, although the commitment is qualified because it is subject to the “satisfactory performance” of the provider. Clause 27 similarly commits Teekay to the use of a mutually agreed internet service provider. Significantly, the commitment in relation to the crew change day is not attached to any requirement for mutual agreement.
Like clause 16, clause 27 provides for consultation in contemplation of change. The obligation to consult under clause 27 is limited to the single issue of the chosen internet service provider and accordingly specifies the object of consultation as any change to “the internet service provider”. The object of consultation in clause 16.1(c) is more broadly described as any change to “this arrangement”, because it applies to the two distinct matters to which clause 16.1(c) applies – the airline/charter provider and the crew change day.
The requirement for consultation in clauses 16.1(c) and 27 operates as a fetter on the ability of Teekay to introduce changes of the type contemplated. But it does not go so far as to impede that ability entirely. In clause 16.1(c) of the Agreement, Teekay can change the mutually agreed airline/charter provider, including without agreement, if the provider’s performance is not satisfactory. It can change its approach to the rostering of crew change days in a way that continues to schedule the crew change day as normally on a midweek day. In each case, there must first have been meaningful consultation with the employees and the Union about the change.
In other words, there is no right of veto conferred on either the employees or the Union in relation to changes to the internet service provider, or the airline/charter provider, or the crew change day. To find that this was what the parties intended would be to read the word “consultation” as if it were “agreement”. These are terms of common usage in the industrial context that carry quite different meanings. It is unlikely that this is what the parties intended. In any event, I would not read clause 16.1(c) of the Agreement in this way because of the contrary intention expressed in the language of clause 20.2 of the Agreement, which mandates a process of consultation about any “proposed change” to an employee’s “regular swing cycle”, including about when any such change is “proposed to commence”.
The commitment at issue in clause 16.1(c) of the Agreement is to ensure that crew change days will normally be scheduled on a day that is not a weekend day. While this does not prohibit crew changes on a weekend, it does require that weekend crew changes will be the exception rather than the rule. This is so that employees will have more, but not necessarily all, weekend days at home with their families during their leave.
Reading clause 16 of the Agreement as permitting changes to the swing cycle in the circumstances described above also promotes the objective in clause 2(d) of the Agreement to “demonstrate to the Commonwealth Government the cost benefits and skills professionalism advantages in employment of Merchant Navy crews to assist in Defence operations and training exercises for the benefit of future seafarer employment opportunities.”
Turning now to some of the Union’s specific contentions, I do not accept that the introduction of a permanent 29-day swing cycle will mean that normally, crew change days will fall on weekends, or even that employees will normally be required to travel on weekends. The starting point is instead that the frequency of weekend crew changes on a ‘29 days on, 29 days off’ swing will be 2 out of every 7 (the two weekend days of each week). Even under this formulation, weekend crew change days will be the exception, rather than the rule. This is not accounting for any adjustment due to factors beyond the control of the parties, or under clause 16 of the Agreement, or any practical resetting of the swing cycle in connection with maintenance of the vessel or other non-operational periods.
The word “normal” in clause 16.1(c) of the Agreement does not connote that the crew change day is to be the same day each swing, or even that normal means both “regular and systematic”. In clause 16, “normal” means the common, or the usual, crew change day. This can be the same day, on an even swing, or it can be different days that are known to form part of the normal roster. In a practical sense, the crew change day will always be regular and systematic whether it falls on the same day of each swing or not, because it will occur frequently as part of the repeating pattern of the swing cycle.
I reject the submission that if Teekay can sometimes schedule weekend crew changes under clause 16.1(c) of the Agreement, it can also cease providing internet to employees while at sea or in remote areas as long as it has consulted first. Clause 27 does not contemplate the cessation of internet access to the crew. It deals only with the identity of the internet service provider. Implicit in the requirement to change to an agreed provider, and to consult over any new one, is that internet access will be provided to the crew both at sea and in remote places where mobile telephone reception is likely to be limited.
I accept that under clause 13.6(c) of the Agreement, Teekay has the discretion to decide whether to approve a request for an employee to change their home port and that formal consultation is not required. However, the fact that the clause is expressed in this way does not mean that in each case where the parties have intended to give Teekay the sole discretion to determine a matter under the Agreement, they have used clear and unambiguous language to that effect.
It is well settled that the framers of the Agreement were likely of a practical bent of mind and may not have been overly concerned with legal niceties or jargon. The language of the Agreement is expressed in a variety of ways, including in matters where Teekay retains managerial prerogative. Even terms expressed plainly can have more than one meaning when properly construed. For this reason, established principles guide the interpretation of enterprise agreements. Approaching the matter on such a narrow basis would be inconsistent with these principles. In any event, as I have already observed, the obligation to consult under clause 16.1(c) of the Agreement operates to limit Teekay’s discretion over the implementation of change.
I have dealt above with the obligation on Teekay to consult with the employees and the Union in relation to any change to the crew change day. The parties agree that consultation under clause 22 of the Agreement has occurred, and I agree. Consultation commenced on 23 November 2021 when Teekay informed the Union of its proposal to move to a 29-day swing cycle. On 1 February 2022, Teekay notified employees in writing of the proposal and foreshadowed consultation meetings with the Union and employees. A further consultation meeting was held between Teekay and the Union, including officials and members, on 4 February 2022. Alongside separate consultation meetings with other relevant unions and employees on 4 March 2022 and 9 March 2022, consultation between Teekay and the Union continued both by discussion and by email.
Conclusion
I find that the Agreement does not prevent the introduction of a 29-day swing cycle. However, such a roster cannot have the result that crew change days will normally fall on weekends. The obligation to consult about the change does not stand in the way of introduction of the new roster, on the basis that consultation has now occurred.
To meet its obligations under clause 16.1(c) in the context of a 29-day swing cycle, Teekay will need to continually monitor and take steps to ensure that crew change days are normally scheduled for midweek days, consistent with both the language and the purpose of clause 16.1(c) of the Agreement. I also recommend that crew change days be scheduled sufficiently in advance so that Teekay can be confident of its compliance with this obligation and so that employees can plan their leave accordingly.
The dispute is determined on this basis.
COMMISSIONER
Appearances:
P Mohseni for the Construction, Forestry, Maritime, Mining and Energy Union.
P Willoughby of Counsel for the respondent.
Hearing details:
2022.
Sydney (by video):
September 29.
[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005; The Australasian Meat Industry Employees Union v Golden CockerelPty Limited [2014] FWCFB 7447; see also Workpac v Skene [2018] FCAFC 131.
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