North Queensland Marine Towage Pty Ltd v Dailey, A.R

Re: NORTH QUEENSLAND MARINE TOWAGE PTY LTD
And: ALFRED ROBERT DAILEY
No. NI19 of 1991
FED No. 124
Industrial Law
(1992) 40 IR 268
(1992) 34 FCR 302

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Black C.J.(1), Northrop(1) and Drummond(1) JJ.

CATCHWORDS

Industrial Law - construction of tugboat industry award 1982 - whether the employer is under an obligation to provide insurance cover in the case of death of an employee engaged on a special voyage by taking out an insurance policy.

Industrial Relations Act 1988 ss.51, 178

Conciliation and Arbitration Act 1904 s.110

Master Builders Association of Victoria v Australian Building

Construction Employees and Builders Labourer's Federation (1981) 35 ALR 284

Seamen's Union of Australia v The Adelaide Steamship Company (1976) 46 FLR 444

HEARING

SYDNEY

#DATE 19:3:1992

Counsel for the Appellant/Respondent: Mr G. Hatcher

Solicitors for the Appellant/Respondent: Blake Dawson Waldron

Counsel for the Respondent/Applicant: Mr B.D. Hodgkinson

Solicitors for the Respondent/Applicant: W.G. McNally and Co

ORDER

The appeal be allowed.
The order appealed from be set aside.
In lieu thereof it is ordered that Clause 9 of Part II of the Tugboat Industry Award 1982 be construed as meaning that the employer is required to provide at its expense a policy of insurance under which the insurer is required to pay $75,000 in the event of the death of an employee entitled to the benefit of Part II of the 1982 Award who dies whilst Part II applies to his employment or who dies after Part II has ceased to apply to his employment in circumstances in which his death is causally related to employment to which Part II applied.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The issue sought to be raised by this appeal is the proper construction of Clause 9 of Part II of the Tugboat Industry Award 1982 (the "1982 Award"). The 1982 Award was an award made by consent by the Australian Conciliation and Arbitration Commission on 19 September 1983. The 1982 Award came into force on 1 April 1982 and superseded other awards, the major one being known as the Tugboat Industry Award 1974. Clause 9 of Part II of the 1982 Award provides as follows:

"9 - INSURANCE

The employer shall provide insurance coverage of $75,000 in the case of death of an employee in addition to any superannuation entitlement or benefit from the Seafarers' Retirement Fund."

When the appeal came on for hearing, the Court drew attention to a number of defects of a procedural nature that could result in the appeal being dismissed without a consideration of the substantive issue sought to be raised. Eventually these defects were cured, by leave, but it is necessary to refer in some detail to the history of the application.
Although the appellant does not appear to have been named as a party to the 1982 Award, counsel for the appellant conceded that it was bound by that award. The facts giving rise to the application from which this appeal is taken occurred in mid October 1984. On 17 October 1984 one Thomas Ford died in hospital at Mackay. At the time Mr Ford was employed by the appellant as an engineer. By application dated 25 September 1990 Alfred Robert Dailey, as applicant, sought orders against the present appellant. Mr Dailey was the Federal President of the Australian Institute of Marine and Power Engineers, an organization registered under the Conciliation and Arbitration Act, 1904. The first order sought was as follows:

"1. An interpretation under s.51 of the Australian Industrial Relations Act 1988 of the following provisions of the Tugboat Industry Award, 1982: Clause 9/Part II: "The employer shall provide insurance coverage of $75,000 in the case of death of an employee in addition to any superannuation entitlements or benefits from the Seafarers' Retirement Fund." The Applicant submits that the provision should be interpreted in the following manner: That on a proper construction of Clause 9, Part II of the Award, the Respondent is obliged to provide effective insurance coverage for employees covered by Part II of the Award of $75,000 in the event of the death of the employee performing work for any cause under Part II of the Award, and in the event of a death occurring the Respondent is obliged to ensure payment of the benefit under the insurance coverage to the employee's beneficiary."

In addition, the application alleged that the appellant had committed a breach of the 1982 Award by failing to pay to the estate of Mr Ford an amount of $75,000. The application sought the imposition of a penalty "pursuant to s.119 of the Conciliation and Arbitration Act 1904" and an order that the appellant pay to the estate of Mr Ford damages in the sum of $75,000. The application was not issued until 26 October 1990, being more than six years after the death of Mr Ford.
The Statement of Claim filed with the application is in a form which may not be in conformity with the requirements of the Federal Court Rules. It alleges that the appellant is a company and that Mr Ford was at all material times employed by the respondent as an engineer. It alleges that there existed a contract of employment between Mr Ford and the appellant, part of which was contained in the 1982 Award. Paragraph 4 is as follows:

"4. On 16 and 17 October 1984, the said Thomas Ford

(deceased) was employed by the respondent as an engineer on a tug "Dally" and while so engaged did become ill and died."

The Statement of Claim alleges that the appellant failed to comply with its contractual obligations to Mr Ford, particulars of the breach of contract being that the appellant did not provide effective insurance coverage, did not comply with the provisions of the 1982 Award and did not pay the amount of $75,000 to the estate of Mr Ford. The respondent, on behalf of the estate of Mr Ford, claimed damages for breach of contract.

The respondent was granted leave to amend its Statement of Claim but pursuant to that leave it served and filed an amended application relying upon the existing Statement of Claim. The amended application inserted a new claim to the effect that on or about 17 October 1984 the appellant, being a person bound by the 1982 Award, committed a breach of Clause 9 of Part II of the 1982 Award by failing to provide insurance coverage as required. The amended application also corrected an error in the original application by claiming the imposition of a penalty, pursuant to s.178 of the Industrial Relations Act 1988 (Cwlth). Otherwise the amended application, which is dated 17 January 1991, is in the same form as the original application. The appellant filed its defence to the Statement of Claim on 31 January 1991. It admitted the formal parts of the Statement of Claim, including the existence of a contract of employment, and admitted that Mr Ford was on 16-17 October 1984 employed as an engineer on the tug "Dally" but alleged that at approximately 10.00 pm on 17 October Mr Ford was transported from the vessel to Mackay Hospital by ambulance and died at approximately 1.30 am on 18 October 1984. Otherwise the appellant did not admit the allegations contained in paragraph 4 of the Statement of Claim. It denied the allegation of failing to comply with its contractual obligations to Mr Ford. Further, the defence disputed the interpretation of Clause 9 Part II as sought by the respondent and raised the defence that the application for the penalty was barred by s.178(8) of the Industrial Relations Act and that the relief sought for damages for breach of contract was barred by s.10 of the Limitation of Actions Act 1974 (QLD). The appellant also raised by way of defence that the respondent had no standing to seek relief claiming damages for the estate of Mr Ford or to seek an order that the appellant pay interest on those damages to the estate.
At a directions hearing on 4 February 1991 the Court directed that the question of interpretation of the 1982 Award, as raised in paragraph 1 of the amended application, be tried as a separate and preliminary issue. Directions were given as to affidavits to be filed relating to that issue. It was also directed that written submissions be filed and served on this issue, and that the question be resolved by the Court on those written submissions unless the parties sought to make oral submissions. Apparently the parties did not seek to make oral submissions and on 23 July 1991 the Court gave its judgment on this preliminary issue. Written reasons for judgment, headed "Preliminary Question of Interpretation of Award", were published but no minutes of order had been prepared and the report of listing merely indicates on this point as follows: "Judgment on Preliminary Question of Interpretation of Award delivered."
By Notice of Appeal dated 12 August 1991 the appellant appealed from that judgment. No order had been entered pursuant to the provisions of O.36 r.8(1)(d) of the Federal Court Rules, which require that an order must be entered where an appeal from the order has been instituted. It is quite clear that the judgment or order made was interlocutory only in that it did not finally dispose of the matter and as a result leave to appeal should have been obtained under s.24(1)(a) of the Federal Court Act of Australia 1976. No leave to appeal had been sought.
Of more substance, however, is the fact that the application purporting to be under s.51 of the Industrial Relations Act was completely misconceived. That section provides as follows:

"51(1) The Court may give an interpretation of an award on application by:

(a) the Minister; or

(b) an organisation or person bound by the Award.

(2) the decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court."

The jurisdiction of the Court conferred by this section is of a particular kind and is similar to the jurisdiction conferred by s.110 of the Conciliation and Arbitration Act, 1904. A Full Court of the Federal Court of Australia considered the nature of the jurisdiction conferred by s.110 in Masters Builders Association of Victoria v Australian Building Construction Employees and Builders Labourer's Federation (1981) 35 ALR 284, see in particular per Evatt and Northrop JJ. at pp 287-289. The passage to which we have drawn attention will not be repeated in these reasons but it should be understood by persons seeking an interpretation of an award that what was said there applies with equal force to applications under s.51 of the Industrial Relations Act, 1988.

In the present case counsel for the respondent made it quite clear that what the respondent was seeking was the imposition of a penalty under s.178 of the Industrial Relations Act and the payment of money, whether for breach of contract or otherwise, by the appellant to the estate of Mr Ford. There is no evidence to show whether the respondent is a person bound by the 1982 Award and in any event, although he may be authorised by the union of which he is or was Federal President to sue for the imposition of a penalty for breach of award, he cannot sue as if he were the organisation. An interpretation under this provision of the Act is of a general nature and does not depend upon the facts of any particular case. The decision of the Australian Industrial Court in Seamen's Union of Australia v The Adelaide Steamship Company (1976) 46 FLR 444 is a valuable illustration of the exercise of the jurisdiction conferred by s.101 of the Conciliation and Arbitration Act and by s.51 of the Industrial Relations Act. There the Court was constituted by J.B. Sweeney, Evatt and St John JJ. Reference was made to the parties, the effect of any order made and the general nature of the construction of a term of an award, in that case the 1974 Tugboat Industry Award. At p 446 there is a very useful summary of the nature of the award which has equal application to the 1982 Award.
Following submissions by counsel for each party expressing a desire to have the substantive issue determined, and upon counsel for the appellant undertaking on behalf of his instructing solicitors to have the order sought to be appealed from taken out and entered as soon as possible, the Court granted leave to appeal against that order but reserved leave to amend the notice of appeal to raise as grounds that the respondent had no standing to bring the application under s.51 of the Industrial Relations Act and that it was not appropriate for the matter to proceed as an application under s.51. The Court was prepared to proceed with the hearing of the appeal on the basis that the preliminary question raised was a question of law to be heard as a separate question prior to the main hearing pursuant to the provisions of O.29 of the Federal Court Rules. Later on the same day an order was entered as follows:

"The Court orders that the Tugboat Industry Award 1982 be interpreted in accordance with the Reasons of Judgment given by His Honour Justice Einfeld on 23 July 1991."

It may be doubted whether this order is in proper form but the interpretation which appears to be the relevant one for the purpose of the appeal is taken from the reasons for judgment and is as follows:

"I find that employers bound by the award have a liability to pay $75,000 to the successors of tugboat workers who die while employed on duties to which Part II of the award applies. This liability is to be indemnified under or by insurance policies, the premiums of which are to be paid exclusively by employers. Upon the death of any of their workers, however occurring and from whatever cause, the employers are required to pay the $75,000 to the legal personal representatives or administrators of the estate of the deceased persons."

The appeal then proceeded on this basis but we observe that the trial judge was placed at a disadvantage by not having the assistance of the oral submissions of counsel on points that could have arisen during the course of argument before him and which did arise during the hearing of this appeal.
It is necessary, then, to turn to a consideration of the substantive question namely the proper construction of Clause 9 of Part II of the 1982 Award. The other issues raised by the pleadings are of interest but are not being considered by the Court. Further, the construction found by the Court will be binding on the parties to this application only and on no-one else. We note too that there is no factual material before the Court and in particular the home port of Mr Ford is not known. Thus it is not known whether, when Mr Ford was taken ashore to hospital at Mackay as alleged by the appellant, he was at his home port or not.
A useful introduction to a consideration of this issue can be had by a reference to what was said by the Court in Seamen's Union of Australia v The Adelaide Steamship Company Limited, above. In that case the Australian Industrial Court was considering the 1974 Award but the Court's comments have equal application to the 1982 Award. At page 446 the Court said:

"The award is a document laying down rates of payment and conditions of employment for employees in the tug industry. It is to be interpreted not in vacuo but as such an industrial document.

It is clear from the award that the industry is one which functions seven days per week including Saturdays, Sundays and public holidays and for probably twenty-four hours each day.

It is clear, moreover, that it applies to employees of varying classifications in a number of ports and that the requirements of the industry and the practices in the industry vary between different ports. The scheme of the award is that it provides in Pts I and II a number of conditions which are applicable generally. It then provides in a number of separate schedules applicable to different ports rates of pay and conditions of employment which vary somewhat between ports. The schedules provide that, where the provisions of a schedule are in conflict with a provision in Pts I or II, the schedule provision prevails.

The award is then a document which brings about some degree of uniformity in the industry while regulating other matters differently in different ports."

The 1982 Award is in the same form. It is interesting to note that the Award applies to 37 different ports and the particular provisions applicable to each of those ports are set out in separate schedules to Part I of the Award. Part 1 has general application but where there is an inconsistency between the provisions of Part II and Part I, under Clause 3(b), the provisions of Part II apply to the extent of the inconsistency. Part I provides for the ordinary hours of duty and remuneration, expressed as a rate per week. Special allowances or additional rates are provided for doing special types of work, but no such special allowances or rates are paid to persons employed on activities coming within Part II of the Award. It is clear that it is contemplated that the provisions of workers compensation legislation will apply to employees employed under the Award and by Clause 13 of Part I an employer is bound to make up the weekly pay of an employee receiving weekly payments by way of compensation for incapacity arising from a compensable injury. Likewise it is contemplated that on the death of an employee in circumstances where liability is imposed on the employer to pay workers compensation, that compensation will be paid to the dependants of the deceased worker, but there is no provision in Part I requiring the employer to make any additional payment as a result of the death of an employee. This leaves aside any question of any liability based upon claims at common law, including claims for breach of statutory duty. Clause 20 of Part I makes provision for compensation to be paid to employees in relation to damage or loss of personal effects or equipment but the amount to be paid is smaller than under a corresponding clause in Part II despite the general wording of the clauses being the same. In each case the relevant clause, Clause 20 of Part I and Clause 8 of Part II, provides that in the defined circumstances "the employer shall compensate" the employee.
Part II is headed "Outside Work". It is clear that the normal employment on tugs to which the Award applies is confined to within ports or harbours; Part II does not apply to that employment. The Award contemplates that some employees may be engaged regularly or continuously on outside work and the provisions of Part II do not apply to those employees. Further, there are special provisions in relation to some outside work where, because of the special nature of that work, Part II does not operate. Schedule "AA" to Part II lists these special cases which can be illustrated by the fact that the schedule applies to voyages between the ports of Melbourne and Geelong and between the ports of Sydney, Newcastle, Botany Bay and Port Kembla.
Clause 1 of Part II is headed "Application" and the part applies to the members of the crew of tugs, including engineers, when "the tug proceeds to sea on a special voyage outside the limits of bays, harbour or rivers, but shall not apply with respect to employees engaged regularly or continuously on outside work or to the voyages listed in Schedule "AA" of this part". Outside work is not defined, but under Clause 1 a special voyage means a voyage in which it is necessary to set watches and includes specified voyages which need not be discussed further in these reasons. The final paragraph of Clause 1 is important. It reads:

"Except where it is expressly provided to the contrary, the provisions of this Part shall apply from the time that the employee is engaged for the special voyage until his return to the port of engagement."

Clause 2 of Part II of the Award provides for rates of pay. The rates are daily rates and are very substantially higher than the rates of pay, expressed as weekly rates, for the ordinary work in ports. Clause 2(c) provides further that the daily rates are inclusive and that no additional allowances or rates are to be paid for doing special types of work and are calculated on a 24 hour period from midnight to midnight and that no overtime or other penalty is to be paid. Clause 2(e) makes special provisions for an employee landed sick or injured. Clause 8 relates to compensation for personal effects and, as previously noted, the wording of this clause is for practical purposes identical with the equivalent clause in Part I, namely Clause 20, except the maximum amount to be paid is substantially greater. The employer itself is required to pay the amounts. Clause 13 provides for rest periods in an out-port. There is nothing to exclude the provisions of Part I relating to make-up pay or to suggest that there is not the same contemplation that workers compensation legislation is applicable.
It is in this context that Clause 9 requires construction. The reason for the need for Clause 9 is not readily apparent. Various theories may be expounded, the most likely being that an employee engaged on a special voyage is required to move out of his normal place of work and may be required to live away from his home for an extended period under conditions not usually encountered in his regular work. It is noted that there are what appear to be generous leave entitlements to employees engaged in the tugboat industry and where an employee engaged in work to which Part I applies is required to undertake extra duties it is assumed he should receive additional rates of pay. It might also be thought that the dangers to an employee are increased if a tug is required to go into the open ocean away from the protection of a harbour in circumstances where there is more likelihood of a catastrophe occurring, resulting in the death of an employee. In any event the clause is to be construed in the context of higher rates of pay instead of the usual rate plus special allowances, longer periods of being on duty and greater amounts paid for compensation for personal effects.
It is convenient to deal first with the general nature of the obligation imposed upon an employer by Clause 9. The question is whether Clause 9 requires an employer to provide insurance coverage by arranging for an insurance policy to be taken out in respect of its employees or whether the clause requires or permits an employer to be a "self-insurer". When the general nature of the obligation has been determined attention can be given to the terms on which the clause requires what it calls "insurance coverage" to be provided.
In our opinion, an obligation expressed as one to "provide insurance coverage" in a specified sum in the case of death is, as a matter of ordinary language, an obligation to take out an insurance policy in the amount mentioned and in respect of the specified risk. It is common for people to speak of being "covered" by insurance and by this they mean that there is an applicable insurance policy in force. It has been observed many times that industrial awards are not to be interpreted as if they were instruments drawn in the language of lawyers and we think that nothing turns on the fact that the clause might have provided that the employer should obtain a policy of insurance from an insurance company. In our view the words used, as a matter of ordinary language, are just as clear.
If confirmation be needed for this conclusion it is to be found by comparing Clause 8 with Clause 9. Clause 8 provides that in the case of damage or loss to personal effects or equipment from specified causes the employer is to compensate the employee for his damage or loss by a cash payment equivalent to the value of the loss, up to maximum specified sums. If it had been intended that the employer should, itself, be under an obligation to pay $75,000 in the case of the death of an employee then, consistently with the language used in Clause 8, Clause 9 would have said so.
Moreover, in the context of an industrial award, it is easy to see why provision should be made for insurance coverage through an insurance company rather than by the imposition of an obligation on the employer itself to pay the specified sum. On the assumption, which should be made, that the parties to the award are bound to fulfill its obligations as they fall due, an employer subject to the provisions of Clause 9 should always have provided the specified insurance coverage at the time the work of any employee became subject to Part II. The cost of the premiums would be part of the ordinary running costs of the employer's business. Accordingly, even if a tragedy were to occur, with substantial loss of life, the beneficiaries of deceased employees would be assured of payment if, as would be expected, the employer had placed the insurance with a reputable and sound insurer. On the other hand, it could not be assumed that all employers bound by the award would necessarily, and at all relevant times, be in the position to pay out multiples of $75,0000 or, for that matter, a single sum of $75,000. The reality of the payment of a substantial sum in the event of death can hardly have been intended to depend on the ability of a particular employer to bear a loss, that might be of great magnitude, as if that employer were an insurer. If self-insurance were intended one might expect it to be confined, as in some statutory schemes of compensation it is, to employers whose capacity to bear the possible losses was undoubted. In the case of a sea-going vessel it is not fanciful to suggest that the potential liability could extend to the payment of $75,000 in respect of each member of the crew, since a vessel might founder with the loss of all hands.
On its face Clause 9 is directed to insurance. It imposes an obligation on an employer to "provide insurance coverage of $75,000 in the case of death of an employee". The clause states clearly "that the employer shall provide insurance coverage". The concept of a person taking out insurance coverage is well understood and the obligation imposed by Clause 9 should be given its normal meaning. There is no basis for concluding that Clause 9 requires or permits an employer to be a "self-insurer".
The greater difficulty is to determine the extent of the coverage to be provided. The cover is to be for "in the case of death of an employee". There must be some limitation imposed by those words as otherwise the cover would continue indefinitely. The starting point should be a consideration of the circumstances to which Part II applies. As has already been noted, the Part applies to employment of engineers and others on a tug "when the tug proceeds to sea on a special voyage outside the limits of bays, harbour or rivers."
As has also been noted, the concluding paragraph of Clause 1 of Part II provides that except where it is expressly provided to the contrary, the provisions of Part II are to apply from the time that the employee is engaged for the special voyage (a term that is defined) until his return to the port of engagement. Part II does make express provisions to the contrary, see for example, Clause 2(e). But there is no express, or any, provision to the contrary in respect of Clause 9.
Accordingly, the obligation imposed by Clause 9 of Part II is for the employer to provide insurance coverage from the moment Part II begins to apply to an employee until Part II ceases to apply. That is to say, the cover must be from the time the employee is "engaged" for the special voyage until his return to the port of engagement. It is not necessary, in this case, to attempt to define more precisely and in practical terms the time at which the cover must begin to apply or the time at which it can cease to do so. The important point is that the award will, in circumstances to which Clause 13 of Part II applies, continue to apply whilst an employee is having a rest period in an out-port and there is no reason to suppose that a rest period will not be a true rest period and be taken ashore. It follows that the obligation imposed by Clause 9 to provide insurance coverage will extend, as Part II extends, to an employee who is not engaged in work on board the vessel at sea, but who is resting ashore at an out-port. Of course, such an employee will be away from his home port in the course of his work.
In these circumstances it is, in our view, impossible to say that the unqualified obligation to "provide insurance coverage in the case of death" is limited to providing insurance coverage in the case of death that is caused or contributed to by an accident at sea. If the obligation continues whilst the employee is on shore at an out-port, and not necessarily engaged in actual work at all, there is no reason to conclude that the requirement of Clause 9 should, by implication, be limited to the situation of death by an accident that is in any way work related, except insofar as it was the employee's work that resulted in him being where he was at the time of death.
The obligation, then, is perfectly general and there is no room to imply into the clause words that do not appear, namely that the coverage is to be in respect of death causally related to the employee's work where death occurs during a period of employment to which Part II applies.
Indeed, if comparison is to be had with clause 8, which as noted makes the employer personally liable, but only for losses from specified causes all of which are of their nature work-related, it shows that the list of work-related causes is omitted from Clause 9. The clear implication is that unlike Clause 8, Clause 9 is not necessarily limited to causes of death that are work-related.
It follows that the insurance policy for which Clause 9 provides must cover the death of an employee occurring, from any cause, whilst Part II applies to the employee. What, however, of the case of an employee to whom Part II has applied who dies ashore after the vessel has reached her home port and in circumstances where Part II no longer applies to the employment?
It is here that a causal relationship with the employment to which Part II applies may become critical because, absent any causal relationship and absent any temporal connection between the death and the operation of Part II, it is not possible, in our view, to find an appropriate link with the employment such as Clause 9 must, in its context, contemplate by way of limitation.
The question remains, however, whether even if there is a causal relationship with the employment, Clause 9 on its true construction, does require insurance coverage for death occurring after the period to which Part II applies or whether the coverage is to be limited to death actually occurring during the period of Part II employment.
On a view contended for by the appellant it would be sufficient compliance with Clause 9 if the employer provided insurance coverage in respect of death occurring during a voyage but which would not extend to cover death occurring after a man, injured in the course of his employment during the voyage, was taken over the rail after the return of the vessel to the port of engagement. On this argument, the entitlement would depend not on any causal connection between events occurring whilst Part II applied, but upon where the employee happened to be at the moment of his death. It would be better for the employee's dependants, then, if he died five minutes before the vessel docked than five minutes afterwards. Counsel for the appellant justified this seemingly artificial situation by saying that the clause was evidently intended to cover a catastrophic situation, such as the foundering of a vessel, when it might be expected that death would occur at sea. But this answer cannot stand in the face of the conclusion that the insurance coverage which Clause 9 provides must extend to the employee whilst he is on shore in circumstances where Part II, and hence Clause 9, still applies, such as the circumstances of a rest period in an out-port contemplated by Clause 13 of Part II.
It is obvious that clause 9 does not deal expressly with this question but the words are sufficiently general to accommodate quite easily the case of an employee whose death is causally related to the employment to which clause 9 applies. Once it becomes clear that the coverage is not to be confined to death occurring at sea but that it extends to death occurring at any time during the period for which Part II applies to a person's employment, it also becomes clear that it would be quite anomalous if an employee had to be covered by insurance in the case of death occurring during a period for which Part II applied but did not have to be covered in respect of death, causally related to the Part II employment, that happened to occur after Part II ceased to apply. There is no reason of evident policy why there should be a restriction of this nature, especially in the case of a man injured at sea and dying ashore after the completion of the special voyage as a result of the injuries he sustained on the special voyage. On the contrary, and bearing in mind that the award is an industrial instrument in which pointless anomalies of this nature are not to be expected, the evident policy of Clause 9 is advanced by a conclusion that the place of death is not determinative; what matters is the connection with the employment to which Part II and hence Clause 9 applies. In the case of death actually occurring whilst Part II applies to the employment a temporal connection is sufficient; in the case of death occurring after Part II has ceased to apply Clause 9 still requires coverage, but only in respect of death that is causally related to the employment to which Part II did apply.
We think it undesirable to attempt to define, in the abstract, the degree of causal connection between the death and the employment that the policy must cover where death occurs after Part II ceases to apply to the employment, but we consider that Clause 9 certainly contemplates a policy that would do more than provide coverage in respect of death for which the employment was the sole cause, in that it contemplates coverage in a case such as that where the exigencies of the voyage mean that timely medical attention is not available and where, as a consequence death occurs, but after the voyage. It would be anomalous in the extreme if, as we have found, the coverage in respect of death in such circumstances was required for death occurring at sea during the special voyage, but was not required in a case where, by a combination of chance and the efforts of those on board, an employee was kept alive until the vessel reached its home port but then died as a consequence of medical attention not being available on the voyage. Such an anomaly could not have been intended.
During the course of argument a number of interesting submissions were made based upon the concept of industrial matters, and the existence of an industrial dispute and the need for an award to be limited to those matters. Having come to the conclusions we have it is not necessary for the Court to express any views on these submissions. It is quite clear that on any view an obligation imposed on an employer to provide insurance coverage for an employee while the employee is engaged on work or in respect of injury causally related to his work is an industrial matter and it is not necessary to develop this point any further.
In the result, Clause 9 of Part II of the 1982 Award should be construed as meaning that the employer is required to provide at its expense a policy of insurance under which the insurer is required to pay $75,000 in the event of the death of an employee entitled to the benefit of Part II of the 1982 Award who dies whilst Part II applies to his employment or who dies after Part II has ceased to apply to his employment in circumstances in which his death is causally related to employment to which Part II applied.
Accordingly, the appeal should be allowed and the order appealed from set aside.

[1992] FCA 124

19 MARCH 1992