Maritime Union of Australia, Western Australian Branch v Offshore Marine Services Pty Ltd

[2014] FWC 1658

[2014] FWC 1658

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Maritime Union of Australia, Western Australian Branch
v
Offshore Marine Services Pty Ltd
(C2013/4060)

COMMISSIONER CLOGHAN PERTH, 17 APRIL 2014

Alleged dispute about any matters arising under the enterprise agreement.

[1] This is an application by the MUA which alleges that Offshore Marine Services Pty Ltd has been crewing the vessel, Britoil 72, with less than the normal complement of 4 Integrated Ratings (IRs) and consequently has an obligation to pay a “shorthand claim”.

[2] The Employer resists the claim by the MUA and asserts that the normal crewing complement is 3 IRs and either a Trainee Integrated Rating or a Provisional Integrated Rating.

PROCEDURAL BACKGROUND

[3] On 24 April 2013, the Maritime Union of Australia (MUA or Applicant) made application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure (DSP).

[4] The MUA is in dispute with Offshore Marine Services Pty Ltd (OMS or Employer)

[5] The application is made pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[6] The DSP is contained in the Offshore Marine Services Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (2010 Agreement).

[7] The application was the subject of a conciliation conference, communications between the parties and a vacated hearing on 2 September 2013. Procedural directions were issued on 11 June and 8 November 2013.

[8] At the rescheduled hearing on 10 March 2014, the MUA was represented by Mr L Edmonds, National Legal Officer and evidence given on behalf of the MUA by Mr A Evans, Deputy Secretary, Western Australia Branch.

[9] The Employer was represented by Mr T Caspersz of Counsel and evidence given on behalf of the Employer by Mr B Matthews, General Manager Employee Relations.

[10] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

RELEVANT STATUTORY FRAMEWORK

[11] There was no dispute between the parties that the MUA could properly file the application in accordance with Clause 45: Dispute Resolution Procedures and s.739 of the FW Act.

RELEVANT BACKGROUND

[12] On 28 April 2009, Offshore Marine Services Alliance Pty Ltd (OMSA) was awarded a contract to tow barges between the Gorgon Gas Project on Barrow Island and the Australian Maritime Complex, Henderson. Henderson is located 23 kilometres south of Perth, Western Australia.

[13] OMSA is an incorporated joint venture between OMS and PB Sea-Tow.

[14] OMSA engages OMS to provide crews for its vessels. The Britoil 72 is one of those vessels.

[15] The employees subject to the dispute are employed by OMS aboard the vessel, Britoil 72.

[16] The employees, subject to this dispute, are employed by OMS and have their terms and conditions of employment regulated, in part, by the 2010 Agreement. The MUA is covered by the 2010 Agreement.

[17] On or about 30 March 2010, OMSA and the MUA entered into a document entitled “Vessel Operations Memorandum of Understanding” (2010 OMSA MOU).

[18] The 2010 OMSA MOU is made with the MUA and covers work to be carried out by OMSA which had entered into a contract with the Kellog Joint Venture Gorgon (KJVG) to provide marine transport services for the Gorgon Project. It should be noted that the 2010 OMSA MOU was created prior to the 2010 Agreement.

[19] The purpose of the 2010 OMSA MOU is to “record the intention of the parties for crewing of vessels...” 1. The 2010 OMSA MOU is an “overview” document.

[20] On or about 27 June 2012, the Britoil 72 commenced operations on the Gorgon Project.

[21] Since on or about 27 June 2012, the Britoil 72 has been crewed by 11 employees including 3 IRs and an Indigenous or non-Indigenous TIR or PIR. For the purposes of this decision and reasons for decision, I will refer to the crewing as “3 IRs and a TIR/PIR”.

DISPUTE

[22] On 21 March 2013, a dispute arose over the correct manning level for the Britoil 72 pursuant to the Agreement. The dispute resulted in a s.418 of the FW Act application to stop alleged unprotected industrial action (C2013/3689). A similar dispute occurred on 29 April 2013 with a corresponding application (C2013/4111).

[23] The “nub” of the dispute is best set out by Mr Evans in his witness statement:

“Notwithstanding the requirement under the terms of the Agreement for a support vessel to be manned with 4 Integrated Ratings and a Cook, OMS have been manning the vessel with 3 Integrated Ratings, a Trainee Integrated Ratings and a Cook. It is my view that the company is manning the vessel with less than the normal complement of employees and as a result, an obligation is created to pay a “shorthand claim” under clause 13 of the Agreement.

The Respondent has asserted that there is an agreement for one of the Integrated Ratings to be replaced with a Trainee Integrated Rating. While the MUA has agreed to this arrangement in the past, there has been no such arrangement with OMS in relation to the operation of the Britoil 72 on the Gorgon Project.” 2

BACKGROUND TO DISPUTE

[24] At the commencement of the OMSA contract, ocean going tugs required to tow barges between Henderson and Barrow Island, were crewed by 3 IRs.

[25] After the signing of the 2010 OMSA MOU in March 2010, the crewing of all OMSA tugs increased, for relevant purposes, from 3 IRs to 3 IRs and a TIR/PIR.

[26] On 2 August 2011, Mr Matthews sought a meeting with Mr Evans to “work towards amending the MOU” 3. Mr Evans responded on 26 August 2011 with the words “Hows the MOU looking Ben?”4

[27] On 4 October 2011, Mr Matthews and Mr Evans met to discuss the increase in vessel numbers and amendments to the 2010 OMSA MOU. Mr Evans has no recollection of the meeting. However, Mr Matthews’ notes of the meeting state that the issue of TIR/PIRs were discussed in relation to ocean going tugs; there is no clear outcome to the discussion recorded in the notes.

[28] Following the discussion on 4 October 2011, Mr Matthews, on 6 October 2011, made a revision of the 2010 OMSA MOU (Revised 2011 OMSA MOU). Individually, I will refer to the MOUs as the 2010 OMSA MOU or Revised 2011 OMSA MOU. Collectively, I will refer to the MOUs as the MOUs.

[29] The relevant parts of the Revised 2011 OMSA MOU reads as follows:

“If an Indigenous employee is not available, the position may be filled by a non-Indigenous Trainee IR or deck hand until an Indigenous employee is available.”

[30] The Revised 2011 OMSA MOU was forwarded by email from Mr Matthews to Mr Evans on 22 May 2012, and relevantly reads:

“Attached is the last MOU that was signed off re: manning levels...2010.

I have attached a revised version with highlighted clarifications re: TIR positions - Rev1 6 October 2011...I will revise the MOU once we settle on the new vessels” (my emphasis).

[31] The Employer did not receive a response from Mr Evans.

QUESTIONS FOR DETERMINATION

[32] The parties to the dispute agreed on the following questions for determination:

1. Whether on a proper interpretation of the Offshore Marine Services Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (Agreement), crew on the Britoil 72, whilst she is engaged on work under the Offshore Marine Services Alliance Pty Ltd Tugs and Barges Contract (78500084) with the Kellogg Joint Venture – Gorgon for the construction phase of the Gorgon Project, should be paid in accordance with the rates set out at Schedule 1 thereto; and if so;

a. whether the crewing practice followed by Offshore Marine Services Pty Ltd (OMS) to engage a Trainee Integrated Rating (TIR) or a Provisional Integrated Rating (PIR) as part of the crew staffing complement (i.e. instead of an Integrated Rating(IR)), is part of an agreement with the MUA for the purposes of clause 50.4 of the Agreement; and if not;

b. does a crew staffing complement comprising 3 IRs, 1 PIR or TIR and a cook constitute “less than the normal complement of employees” for the purposes of clause 13.3 of the Agreement and who in these circumstances are “absentee employees” for the purposes of this clause?

2. If in the circumstances, on a proper interpretation of the Agreement, Schedule 1 does not apply, does Schedule 7 apply; and if so

a. whether the crewing practice followed by OMS is in accordance with “established practice” for the purposes of Schedule 7; and if not;

b. does this constitute “less than the normal complement of employees” for the purposes of clause 13.3 and who in these circumstances are “absentee employees” for the purposes of this clause?

Principles of interpretation of enterprise agreements

[33] The Applicant referred to principles of interpretation by Deputy President Ives in The Australian Workers’ Union v Visy Board Pty Ltd t/as Visy Specialities (PR963418 at paragraph 12) as follows:

“[12] Among the general principles to be followed in the interpretation of awards and certified agreements are these:

(a) if the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning;

(b) the words used in an industrial instrument should not be interpreted in a strict, technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise;

(c) each clause should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole 5 and in the context of the clause/section in which it falls;

(d) the court or tribunal should strive to give effect to the intention of the authority which made the award (or, presumably, in the case of an agreement, the intent of the parties to the agreement), provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/parties intended them to mean;

(e) the court or tribunal's recourse to extrinsic material in the interpretation of industrial instruments is not dependant upon the existence of ambiguity in the industrial instrument.” (end notes omitted)

[34] The Employer agreed that the construction of an enterprise agreement requires consideration of the ordinary reading of the words having regard to their context and purpose and referred to DP World Brisbane Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8557 at [28]-[31]. For the purposes of this decision and reasons for decision, I highlight paragraphs [28] and [29] and also paragraph [36] as follows:

“[28] The task of construing an expression in an enterprise agreement (such as the expression ‘subject to any appeal rights’ in clause 24.1.1(e)) begins with a consideration of the ordinary meaning of the words having regard to their context and purpose. As Gleeson CJ and McHugh J observed in Amcor Limited v CFMEU:

“The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...” 

[29] Context may appear from the text of the agreement taken as a whole, its arrangement and the place in it of the provision under construction.  The legislative context against which the agreement was made and in which it was to operate is also a relevant contextual consideration.

[36] A consequence of the application of the Acts Interpretation Act 1901 (Cth) to enterprise agreements would be that extrinsic materials may be used as an aid to construction, as provided for in s.15AB of that act.”

[35] The Employer also referred to Civil Air Operations Officers Association of Australia v Air Services Australia [2001] FCA 1435 at [20] and Leading Age Services Australia NSW-ACT [2014] FWCFB 129 at [19] for the principle that if there are two inconsistent provisions that cannot be reconciled, unless there is something to the contrary in the 2010 Agreement, the general provision should give way to the specific.

[36] I have adopted the approaches to interpretation of enterprise agreements as set out in paragraphs [33] to [35].

What is the correct vessel classification of the Britoil 72?

[37] The parties agree that the Britoil 72 tows barges between the Gorgon Project on Barrow Island and AMC. Barrow Island is approximately 50 kilometres off the Pilbara coast of Western Australia. To reach Barrow Island, the Britoil 72 travels on the Indian Ocean.

[38] Mr Evans contends in his evidence that the Britoil 72, under the terms of the 2010 Agreement, is a “Schedule 1 - Support Vessel” 6.

[39] A “Support Vessel” is defined in Clause 3 of the Agreement as follows:

“Support Vessel” means a vessel designed and/or equipped to perform AH/T/S that is engaged in or in association with offshore oil and gas operations and is capable of providing any or all related services such as anchor handling, towage, carriage of cargo, underwater inspections, seabed clearance, ROV operations, pipe reel operations etc”.

[40] The Employer submits that the Britoil 72 is a Schedule 7 vessel pursuant to the 2010 Agreement. A Schedule 7 vessel is a vessel, “operating within 100NM [nautical miles] off the coast” and applies to “tugs, and shallow draught vessels, such as landing craft, utility vessels and multi-function vessels operated or manned by the Employer in or in association with oil and gas operations in Coastal areas”.

[41] Clearly, there is a dispute between the parties as to whether the Britoil 72 is a Schedule 1 or 7 vessel on a proper interpretation of the 2010 Agreement. I find that he Britoil 72 is a Schedule 7 vessel for the following reasons.

[42] First, the vessel specification for the Britoil 72 provided as part of the proceedings describes the Britoil 72 under the heading “Type” as, an “Ocean Going/Anchor Handling/Towing Tug” 7 (my emphasis).

[43] Secondly, towing barges on the Indian Ocean between Henderson and Barrow Island which is within 100 nautical miles off the Western Australian coast and is consistent with a Schedule 7 vessel in the 2010 Agreement. I note that the predecessor to the 2010 Agreement is the Offshore Marine Services Pty Ltd - Integrated Ratings, Cooks, Caterers and Seafarers Agreement 2006-2009 (2006 Agreement). The 2006 Agreement includes at Schedule 7, vessels “engaged in operations in the North West Shelf Coastal Areas” which would have included Barrow Island.

[44] Thirdly, the scope of works attached to the OMSA contract to perform services for the Gorgon Project provides for a description of Ocean Going Tugs and Support Vessels. Ocean Going Tugs are described as “...tugs for the transfer of barge loaded cargoes between Dampier and BWI (Barrow Island) and other nominated Australian ports.” Support vessels are described as “...support vessels in support of Project vessels and Works...with one vessel fitted out as a personnel transport boat...The second support vessel is intended to be used as a line handling boat and for emergency responses...” 8 From the descriptors and other evidence provided in the hearing, in my view, the Britoil 72 more appropriately falls within the former category of Ocean Going Tugs.

[45] Fourthly, the schedule of vessels provided in the 2010 Agreement (which varies from Schedule 1 to Schedule 8) is not constructed randomly but commences with generic “Support Vessels” and proceeds and names a further seven (7) specialist type vessels. Such an approach is similar to the construction of enterprise agreements or awards where the general words are followed by specific words.

[46] Finally, as a matter of the general construction of agreements and awards, the generic provision must yield to the specific, unless clearly indicated to the contrary.

[47] The MUA concedes that the Britoil 72 is an Ocean Going Tug but submits it should be classified as a Schedule 1 vessel and relies upon the MOUs 9.

[48] Ocean Going Tugs are referred to in the MOUs, in two discrete subheadings; the first deals with “Crew Numbers” at 6.1 and secondly, at 6.3, “Rates of Pay”. What the MUA relies upon in support of the Britoil 72 being classified a Schedule 1 vessel, is that in subclause 6.3 “Rates of Pay” of the MOUs refers to the rates of pay for Ocean Going Tugs as contained in Schedule 1 of the 2010 Agreement. It is through the “Rates of Pay” provisions in the MOUs that the MUA arrive at the conclusion that the Britoil 72 is a Schedule 1 vessel.

[49] However, there is no dispute between the parties that the rates of pay for both Schedule 1 and Schedule 7 vessels are the same. “Crew Numbers” and “Rates of Pay” are discrete and separate issues. On its own, I am not satisfied that reference to Schedule 1 in the “Rates of Pay” of the MOUs clearly establishes that the Britoil 72 is a Schedule 1 vessel; this is particularly the case when the stated purpose of the MOUs are to “record the intention of the parties for crewing of the vessels” 10

[50] While the MUA relies upon the “Rates of Pay” provisions in the MOUs to establish that the Britoil 72 is a Schedule 1 vessel, the Revised 2011 OMSA MOU contains the following:

“The following Ocean Going Tugs are utilised on the project in respect to the transportation of barges/cargo between Henderson (AMC) and Barrow Island”. 11

[51] The Revised 2011 OMSA MOU also refers to Ocean Going Tugs being converted to “Harbour Tugs”. Under the heading “Future Vessels”, the Revised 2011 OMSA MOU states that OMSA may add further Ocean Going Tugs to its fleet and crew numbers will be the same as currently exist.

[52] Finally, both parties agree that there is no definition of a Schedule 7 vessel in the 2010 Agreement. The MUA submit that this means that “most vessels can be a Schedule 7 vessel” 12; which is possible but unlikely. The MUA submitted that “what is clear about the operation of this project is that Schedule 7 vessels are those vessels operating inside the harbour”13. This submission appears to be at odds with the ordinary meaning of a vessel operating in a “harbour” and a vessel which is a “ocean going tug” operating within 100 NM off the coast of Western Australia. Further, the Revised 2011 OMSA MOU states “the following harbour tugs will be utilised on the project...within the confines of Barrow Island...the use of harbour tugs (converting from ocean going tugs) is likely to occur in October/November 2011. Clearly, in my view, there is a distinction between an ocean going vessel and a harbour vessel. This distinction is further reflected in the Britoil 72’s specifications and the description of ocean going tugs in the scope of works14. These inconsistencies tend to give Schedule 7 vessels a broader application than that submitted by the MUA.

[53] While the rates of pay are identical for Integrated Rating on both Schedule 1 and Schedule 7 vessel, it is the crewing of the vessels which is different. I now turn to crewing on the Britoil 72.

Crewing of the Britoil 72

[54] Crewing for a Schedule 7 vessel, which in this case is the Britoil 72, is set out in subclause 7.3 of Schedule 7 of the 2010 Agreement as follows:

“Crewing of vessels under this Schedule will be in accordance with established practice. Manning will form the basis of agreement between the parties on claims for additional manning where the vessel may be used under varying circumstances.” (my emphasis)

[55] It would appear that the parties agreed in Schedule 7 that “crewing” of the Britoil 72 is effected or conditioned by “established practice”.

[56] The second sentence in subclause 7.3 of Schedule 7 appears not to be relevant to this application because it is only activated where the Britoil 72 is used under “varying circumstances”. There was no evidence presented to the hearing that the Britoil 72 did anything other than travel between Henderson and Barrow Island for the duration of this dispute.

[57] I now turn to what is meant by “crewing...in accordance with established practice”.

[58] The parties have agreed that since or about 27 June 2012 to the present day, the Britoil 72 has been manned by 11 crew members, including 3 IRs and a TIR/PIR. 15

[59] Returning to paragraph [20], Mr Evans asserts that, “it is my view that the company is manning the vessel with less than the normal complement of employees and as a result, an obligation is created to pay a shorthand claim under clause 13 of the Agreement” (my emphasis).

[60] The relevant provisions of Clause 13 of the Agreement is as follows:

“13. SAILING SHORT HANDED

13.1 The Parties will ensure that vessels sailing to sea and drilling vessels are not delayed by crew shortage and all vessels will sail shorthanded, provided that the proper safety and welfare of the crew is not jeopardised.

13.2 It is mutually agreed that no vessel will be required to sail to sea in contravention of the provisions of the Navigation Act 1912.

13.3 Where a vessel is required to sail to sea with less than the normal complement of Employees the vessel will be taken to sail on the understanding that the aggregate wage for the absentee Employees will be divided amongst the Employees on the vessel for the period of short handedness. The payment of shorthand monies will not apply, however, where the short handedness results from the granting of leave to an Employee on compassionate grounds.” (my emphasis)

[61] The Australian Concise Oxford English Dictionary (ACOED) defines “normal” as “conforming to standard”, “regular”, “usual” and “typical”. The ACOED defines “complement” as “full number required (to man ship)”.

[62] In answering the question of what is the “normal complement” of employees required for the Britoil 72, the parties have agreed that it has been 3 IRs and either a TIR or PIR since on or about 27 June 2012. In my view this can be safely described as “regular”, “usual” and “standard”. However, while the past may be a good indicator of what is “normal”, Mr Evans contends that although the MUA, “has agreed to this arrangement in the past (on other vessels), there is no such arrangement with OMS in relation to the Britoil 72 on the Gorgon Project” 16.

[63] The MUA refer to Clause 50 of the Agreement which is entitled “Working Traineeship”. The relevant parts of Clause 50 are as follows:

“50 Working Traineeship

50.1 The Parties recognise the need for recruitment of extra personnel in the offshore oil and gas industry and to ensure training arrangements are cost effective and meet the needs of the industry and its stakeholders.

50.2 ...

50.3 The new trainee will form part of the crews staffing compliment (sic) and will be available on AHTS and other vessels covered in all schedules of this Agreement. The existing AST arrangements will still be available to the Employer if they so desire as an alternative to the Working Traineeship approach.

50.4 The establishment of a Traineeship on any particular vessel will be by agreement between the Parties taking into account the projected scope of work for the vessels, duties expected of the trainee and safe manning, AMSA and flag state requirements.

50.5 Where a position on a vessel is not used for a Traineeship then it reverts to a full IR position. This applies to all vessels covered in all Schedules including seismic and drilling rigs.” (my emphasis)

[64] As part of proceedings, the Commission was provided with a MUA document for the Britoil 72 which is entitled “Offshore Industry Check” but which is commonly referred to in the industry as the “Inspection Report”. The Inspection Report dated 22 June 2012 for the Britoil 72 sets out that the proposed manning for the vessel is 4 IRs with the following in brackets (1 x IR position may be a TIR). The substitution of a TIR for an IR is also reflected in other parts of the Report with such references to “IR/TIR”. In my view, the proposed manning arrangement and references to “IR/TIR” are demonstrable of an intention that when the Britoil 72 became operational in Australia, it was to have TIRs onboard as part of the crewing. This intention in the Inspection Report became a reality on or soon after 27 June 2012 when the vessel had a crew of 3 IRs or a TIR/PIR.

[65] The substitution of an IR for a TIR/PIR did not arise in a vacuum but within a context beginning with the 2006 Agreement and the OMSA MOU.

[66] The fourth paragraph of Clause 46A of the 2006 Agreement (paragraphs are not numbered) is in identical terms to subclause 50.4 of the 2010 Agreement. Both the fourth paragraph and subclause 50.4 deal with the establishment of traineeships on vessels.

[67] Clause 6 of the MOUs sets out the crew numbers for “Ocean Going Tugs” which I have found the Britoil 72 to be. The crew consists of 3 IRs and an Indigenous trainee IR. While the Britoil 72 is not specifically named as a Ocean Going Tug in Clause 5 of the MOU, I am satisfied that, as an overview document, the MOUs were not restricted to named Ocean Going Tugs, but intended to apply Schedule 7 vessels broadly as they came and went on the Gorgon Project.

[68] Mr Matthews gave evidence for the Employer that when he commenced employment with OMSA, vessels on the Gorgon Gas Project were crewed with 3 IRs. Following the 2010 OMSA MOU, the Employer crewed Ocean Going Tugs with 3 IRs plus an Indigenous or non-Indigenous TIR or PIR. Put shortly, the Employer submits that the MOU was an “at large agreement required in the fourth paragraph of Clause 46A of the 2006 Agreement relating to the establishment of traineeships on Ocean Going Tugs, including the Britoil 72. The MUA did not contest this evidence of Mr Matthews and this situation supports the proposition that for Ocean Going Tugs the “normal” crewing and “established practice” was 3 IRs and a TIR/PIR. Further, where a traineeship position was not filled by a TIR/PIR, it reverted to a full IR position.

[69] Separately, I received documentation in evidence sent to Mr Evans on 15 June 2012 from Mr J Isles, OMSA Account Manager. The email indicates that the proposed manning level is to be consistent with Ocean Going Tugs in the 2010 OMSA MOU of 3IRs and a TIR.

[70] In my view, what is “normal” in subclause 13.3 and “established practice” in Schedule 7 of the 2010 Agreement is what is in existence - and the contention of the MUA that for “normal” or “established practice” to be enlived, there needs to be their specific agreement to any particular crewing arrangement. I am unable to agree with the MUA submission that what is in existence only has validity as being “normal” or “established practice” if the Union has given their specific agreement to any particular crewing arrangement.

[71] It may very well be the case that the process by which the “established practice” or “normal” crewing is established is by agreement between the parties, but the process is different to what is actually in existence. In both Schedule 7 and subclause 13.3 of the Agreement, the terms are dealing with an outcome which is “established practice” or “normal” and not process. Simply put, the terms of Schedule 7 and subclause 13.3 of the 2010 Agreement are activated by what is in existence - that is, what is “normal” or “established practice”.

[72] There is one inescapable fact which could not be hidden in these proceedings and that is since the Britoil 72 commenced towing from Henderson to Barrow Island and back again from June 2012, it has been crewed by 3 IRs and a TIR/PIR. This is an industrial reality which cannot be ignored. It would be a contradiction of the ordinary meaning of “established practice” or “normal” to find that a different set of circumstances now constitutes “established practice” or “normal”.

[73] The MUA submit that the crewing arrangement was contested in March and April 2013 with the disputes which led to applications C2013/3689 and C2013/4111. However, that does not explain away the proposed crewing arrangement in the Inspection Report, actual crewing between June 2012 and March 2013, the correspondence of Mr Isles to Mr Evans of 15 June 2012, and the provision of the MOUs and the enterprise agreements.

[74] Even if all the documentation to which I have referred was put to one side and I applied the “disinterested bystander” test, it is difficult to come to any other conclusion other than the parties by conduct understood that 3IRs and a TIR/PIR was the “normal”, “regular”, “usual” complement crewing for the Britoil 72 when voyaging between Henderson and Barrow Island.

[75] Notwithstanding this custom or established practice, the MUA submitted that there is no explicit agreement with the MUA to which OMS can point to which enables the substitution of an IR for a TIR/PIR. It is a fact that there is no documentation explicitly stating agreement between the OMS and MUA for the Britoil 72 but I take notice and give weight to intended crewing in the Inspection Report and the conduct of the parties from June 2012 to March 2013. Further, both the 2006 and 2010 Agreements provide for the replacement of an IR with a TIR/PIR. In addition, the 2010 OMSA MOU, which is an overview document, primarily records the intention of the parties to deal with the crewing of vessels. It is plainly intended that ocean going tugs are to have 3 IRs and a trainee IR. Finally, I note the lack of any response by the MUA to the Revised 2011 OMSA MOU which sets out more expansively the role of ocean going tugs and their crew numbers.

[76] The MUA submitted that there was no “evidence of any discussion between the parties to this agreement [2010 Agreement] about the establishment of a traineeship [on the Britoil 72]” 17. However, following a discussion between the MUA and OMS regarding traineeships and the Revised 2011 OMSA MOU, the MUA did not, and have not, responded. It would appear from the Revised 2011 OMSA MOU in respect to “Future Vessels”, of which the Britoil 72 was to be one, “the manning levels will revert to the levels detailed below for current vessels of the same class, size and capacity”18. In my view, this demonstrates the intention of having reached agreement on crewing for ocean going tugs and then creating certainty of crewing as vessels came and went on the Gorgon Project.

[77] In summary, the MUA submitted that absent a specific agreement relating to the inclusion of a traineeship on the Britoil 72, the Employer could not act on what it thought it could do. However, the Employer is entitled to act consistent with the 2010 Agreement, the MOUs, correspondence and the conduct of the MUA.

CONCLUSION

[78] For the reasons set out above, I determine that the answers to the questions set by the parties in paragraph [32] are as follows:

1. No.

1.a. Not applicable.

1.b. Not applicable.

2. The crew of the Britoil 72 should be paid in accordance with the rates of pay applicable to a Schedule 7 vessel in the 2010 Agreement.

2.a. The crewing practice followed by the Employer on the Britoil 72 from June 2012, is the “established practice for the purposes of Schedule 7 of the 2010 Agreement”.

2.b. The crewing practice followed by the Employer on the Britoil 72 since June 2012, does not constitute “less than the normal complement of employees” for the purposes of subclause 13.3 of the 2010 Agreement.

COMMISSIONER

Appearances:

L Edmonds for the Applicant.

T Caspersz of Counsel for the Respondent.

Hearing details:

2014:

Perth,

10 March.

 1   Exhibit R4(7)

 2   Exhibit A2

 3   Exhibit R4(8)

 4   Exhibit R4(8)

 5   Australian Workers' Union v Abbey (1939) 40 CAR 494

 6   Exhibit A2(6) and (8)

 7   Exhibit A2 (AE2)

 8   Exhibit R4(2)

 9   Transcript PN444

 10   Exhibit R4(10)

 11   Exhibit R4(10)

 12   Transcript PN447

 13   Transcript PN448

 14   Exhibit R4(4)

 15   Exhibit R1(14)

 16   Exhibit A2

 17   Transcript PN462

 18   Exhibit R4(10)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR548520>