Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2)

The Fair Work Ombudsman (FWO) brought proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) concerning the eligibility of certain ship's crew members to participate in lawful industrial action. The matter was heard in the Federal Court of Australia, where the primary issue was whether the ship's crew were covered by an enterprise agreement, and thus disentitled to take such action. This case, referred to as the MV Portland Case (No 2), required the court to interpret the terms of the enterprise agreement and the concept of "application" as it pertains to the crew's employment.

The central legal issues before the court involved the interpretation of the "application" clause of the enterprise agreement, specifically whether the crew members were "covered by" the agreement. This hinged on the meaning of "operate in the trade" within the context of the agreement. The court had to determine whether the "trade" referred to the trade of the employer or the trade of the vessel on which the crew members were employed. Additionally, the court had to decide if the description of the job performed by the employees alone was sufficient for the agreement to cover them.

In resolving these issues, the court concluded that the ship's crew members were indeed covered by the enterprise agreement. The interpretation of "operate in the trade" favoured the trade of the vessel, rather than that of the employer. The court found that the job description provided in the agreement was sufficient to cover the crew members. Consequently, the court answered the separate questions in favour of the respondents, effectively dismissing the proceeding against the CFMEU. However, the court left open the possibility for the FWO to seek further orders, should the parties be unable to agree on the appropriate outcome. The court directed the parties to confer and propose orders by a specified date or face a re-listing of the matter for further submissions.