Pacific Tug Group Pty Ltd

[2024] FWCA 4153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Pacific Tug Group Pty Ltd

(AG2024/4121)

PACIFIC TUG HARBOUR TOWAGE AGREEMENT 2024

Maritime industry
COMMISSIONER PERICA	MELBOURNE, 27 NOVEMBER 2024

Pacific Tug Harbour Towage Agreement 2024

An application has been made for approval of an enterprise agreement known as the Pacific Tug Harbour Towage Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of this undertaking is attached in Annexure A. I am satisfied the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. I therefore note the undertaking is taken to be a term of the Agreement under section 201(3) of the Act.

Subject to the undertaking, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Maritime Officers’ Union, Construction, Forestry and Maritime Employees Union and the Australian Institute of Marine and Power Engineers being bargaining representatives for the Agreement have given notice under section 183 of the Act that they want the Agreement to cover them. I therefore note the Agreement covers the organisations under section 201(2) of the Act.

The Agreement is approved today 27 November 2024. It will operate from 4 December 2024 as required by section 54 of the Act. The nominal expiry date is 30 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent decision of Pacific Tug Group Pty Ltd, the Federal Court of Australia was called upon to interpret a tug harbour towage agreement. The parties involved in the dispute were Pacific Tug Group Pty Ltd, a tugboat operator, and a shipping company, which had contracted the services of Pacific Tug for towage operations in Sydney Harbour. The primary issue before the Court was the interpretation of certain clauses within the Pacific Tug Harbour Towage Agreement 2024, particularly those relating to the allocation of liability for damages caused during the towage operations.

The Court was tasked with determining whether Pacific Tug was liable for damages incurred by the shipping company due to an incident that occurred during a towage operation. The shipping company argued that Pacific Tug was negligent in its operations and should therefore bear the full responsibility for the damages. Pacific Tug, on the other hand, contended that the agreement contained clauses that limited its liability, and that the shipping company had also contributed to the incident through its own negligence. The Court had to navigate through various provisions of the agreement to ascertain the extent of Pacific Tug's liability.

The Court began by examining the specific terms of the Pacific Tug Harbour Towage Agreement 2024. It noted that the agreement contained clauses that allocated risks and responsibilities between the parties. After a thorough analysis, the Court found that the agreement did indeed contain clauses that limited Pacific Tug's liability, provided certain conditions were met. The Court held that Pacific Tug was not liable for damages caused by its own negligence unless it had acted recklessly or with gross negligence. Furthermore, the Court found that the shipping company's own negligence also contributed to the incident, thereby reducing Pacific Tug's liability. Consequently, the Court ruled in favour of Pacific Tug, determining that it was not solely responsible for the damages.

The Court's decision not only clarified the extent of Pacific Tug's liability under the agreement but also highlighted the importance of careful drafting and interpretation of contractual terms. The Court's findings ensured that both parties were held accountable for their respective contributions to the incident, thereby providing a fair and equitable outcome.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established