The Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage (Australia) Pty Ltd

[2019] FWC 440

[2019] FWC 440

FAIR WORK COMMISSION

DECISION

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

The Australian Institute of Marine and Power Engineers
v
Smit Lamnalco Towage (Australia) Pty Ltd
(C2018/4569)

DEPUTY PRESIDENT ASBURY BRISBANE, 25 JANUARY 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

BACKGROUND

[1] On 17 August 2018, the Australian Institute of Marine and Power Engineers (AIMPE) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the Dispute Resolution Procedure in clause 8 of the Smit Lamnalco Towage (Australia) Pty Ltd and AIMPE Gladstone Enterprise Agreement 2016 (the AIMPE Agreement 2016). The Respondent in this matter is Smit Lamnalco Towage (Australia) Pty Ltd (SLTA/the Company).

[2] The dispute concerns the proper construction and application of clauses of the AIMPE Agreement 2016 dealing with employee’s duties to provide and participate in safety training. The dispute arose when, on or about 17 September 2017, AIMPE members employed by SLTA under the AIMPE Agreement 2016 became aware that SLTA was seeking to provide engineer familiarisation training to an employee who was engaged by SLTA as a General Purpose Hand (the GPH employee). It is not in dispute between the parties that the GPH employee was not employed by SLTA pursuant to the AIMPE Agreement 2016. It is further not in dispute between the parties that the GPH employee was engaged by SLTA under the Smit Lamnalco Towage (Australia) Pty Ltd and MUA Gladstone Enterprise Agreement 2016 (the GPH Agreement). 1

[3] In response to the above decision by SLTA, at a meeting on 16 November 2018 AIMPE members passed a resolution that they would only provide engineer familiarisation training to engineers employed by SLTA as engineers pursuant to clause 13 of the AIMPE Agreement 2016. 2 The outcome of this resolution was communicated to Mr Glenn Wetters and Mr Peter Sedgewick, Managers at SLTA’s Port of Gladstone worksites, at a meeting on 19 November 2018.3 This dispute centres on whether the resolution of 16 November 2018 constitutes a breach of the obligations of AIMPE members under the AIMPE Agreement 2016.

[4] The question for arbitration agreed by the parties is as follows:

“Is the resolution of AIMPE members that they will only provide familiarisation training to engineers who have been employed as per clause 13 of the Smit Lamnalco Towage (Australia) Pty Ltd and AIMPE Gladstone Enterprise Agreement 2016 consistent with their obligations under that Agreement?”

[5] On 23 November 2018, Directions were issued requiring parties to file and serve material upon which they intended to rely. The parties filed material in relation to their respective positions including outlines of submissions, statements of evidence and facts which each asserted were established.

[6] A hearing was conducted on 7 December 2018. The following persons made witness statements and gave evidence on behalf or in support of AIMPE’s case:

•  Gregory James Yates, Senior National Organiser for AIMPE; 4

• Desmond Arthur Bull, Engineer for SLTA and delegate for AIMPE; 5

• Matthew Kingsley Crays, Engineer for SLTA; 6 and

• Trevor John Boardman, Engineer for SLTA. 7

[7] Evidence on behalf of SLTA was given by:

• Mr Peter Sedgwick, Operations Manager Port of Gladstone worksites; 8 and

• Ms Sasha Holdsworth, former Human Resources and Industrial Relations Manager for SLTA. 9

[8] By agreement between the parties, Mr Craze, Mr Boardman and Ms Holdsworth were not required for cross-examination and their witness statements were admitted into evidence. Mr Yates, Mr Bull and Mr Sedgewick attended the hearing and were cross-examined. The evidence and submissions in relation to the questions for arbitration is summarised below. I have considered all the submissions and material filed by the parties.

[9] At the hearing Mr Nathan Niven, Senior National Organiser, appeared for AIMPE. SLTA sought permission under s.596 of the Fair Work Act 2009 to be legally represented by Mr Aaron Dearden of Hall & Wilcox. SLTA submitted that permission should be granted as representation would allow the matter to be dealt with more efficiently given the complexity of the matter, that AIMPE was being represented by a legally qualified industrial advocate and that, given the specific circumstances, SLTA was unable to represent itself effectively.

[10] Permission was granted on the basis that I was satisfied pursuant to s. 596(a) that the matter would be dealt with more efficiently, taking into account its complexity, if permission was granted. The complexity arises from the fact that the dispute involves the proper construction of an enterprise agreement and the question agreed between the parties is whether certain conduct by AIMPE members is consistent with their obligations under the Agreement, which is a matter that has potential legal implications for the employees concerned. I was also of the view that the AIMPE was being represented by an experienced advocate and that pursuant to s. 596(c) it would be unfair not to give permission for SLTA to be legally represented taking into account fairness between the parties in the matter.

AIMPE AGREEMENT 2016 PROVISIONS RELEVANT TO THE DISPUTE

[11] There are three Agreements covering SLTA employees at Gladstone:

• Smit Lamnalco Towage (Australia) Pty Ltd and AIMPE Gladstone Enterprise Agreement 2016 which applies to Engineers;

• Smit Lamnalco Towage (Australia) Pty Ltd and MUA Gladstone Enterprise Agreement 2016 which applies to Integrated Ratings/General Purpose Hands (the MUA Agreement); and

• Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2016 which applies to Masters (the AMOU Agreement).

[12] The three Agreements all contain an identical Schedule 1 which set out employee duties for the classifications of Master, Engineers and General Purpose Hands/Integrated Ratings (GPHs/IRs). All three Agreements also contain a substantially identical clause dealing with Title and Application. That clause is in the following terms:

“2. TITLE AND APPLICATION

2.1 This Agreement will be known as the Smit Lamna/co Towage (Australia) Pty Ltd

and the AIMPE Gladstone Enterprise Agreement 2016.

2.2 This Agreement is an Enterprise Agreement within the meaning given by the Fair

Work Act 2009.

2.3 This Agreement applies to the towage operations of Smit Lamnalco Towage

(Australia) Pty Ltd in the Port of Gladstone and other identified towage operations.

2.4 The Agreement is to be read in conjunction with the Marine Towage Award 2010, as varied, but in the event of any inconsistency between this Agreement and the Award, this Agreement will prevail.

2.5 In the event of any conflict between the provisions of this Agreement, and the provisions of the NES, the Agreement will prevail to the extent that the variations contained within the Agreement are more favourable than those in the NES.

2.6 The parties acknowledge that there is no other agreement, written or unwritten, between the parties relating to harbour towage, unless filed with the agreement.

2.7 The parties agree that up to the nominal expiry date of this Agreement, the Engineers, the Unions, and the Company will not pursue any extra claims relating to wages or changes in conditions of employment or any other matters related to the employment of Engineers, whether dealt with in this Agreement or not.”

[13] As previously noted the Title and Application clauses of the Agreement are substantially identical. Schedule 1 in each of the Agreements is also identical and contains definitions of classifications across the three Agreements. The Agreements contain separate provisions for each of these classifications of Masters, Engineers and General Purpose Hands/Integrated Ratings. There are other provisions which are common or substantially identical in the agreements including clauses establishing Port Consultative and Safety Committees; clauses dealing with recruitment and crewing; and clauses providing for career development. General obligations imposed on SLTA in relation to these matters are also common across the three Agreements. Each Agreement also contains specific provisions in relation to Engineers, Masters and GPH/ IRs.

[14] The Dispute Resolution Procedure in the AIMPE Agreement 2016 is in the following terms:

“8. DISPUTE RESOLUTION

8.1 In the event of any matter, breach and/or dispute arising under this Agreement, and/or in relation to the interpretation or application of this Agreement or the National Employment Standards, or any matter arising in the course of employment, the following procedure will apply.

Step 1: The matter will in the first instance be discussed between the Employee/s (and their representative if requested) and the immediate supervisor involved.

If the matter remains unresolved

Step 2: It will be referred for discussion between the Union delegate or other employee representative, and the local supervisor.

If the matter remains unresolved

Step 3 It will be referred for discussion between the local representative and appropriate Union official or other employee representative and the Gladstone Manager

Step 4: It will be referred for discussion between the local representative and appropriate National Union official or other employee representative and the nominated Smit Lamnalco Towage (Australia) Pty Ltd national management official.

If the matter remains unresolved

Step 5: In the event that the preceding steps have failed to resolve the matter and/or dispute, any person bound/covered by this Agreement or the Company may refer the dispute to Fair Work Commission (FWC) for conciliation and/or arbitration.

8.2 Fair Work Commission may deal with the dispute in two stages:

8.2.1 Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

8.2.2 If Fair Work Commission is unable to resolve the dispute at the first stage, Fair Work Australia may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

8.3 The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this clause.

8.4 Work shall continue without change or interruption pending determination of any matter or dispute in accordance with the above procedure, except in circumstances where an Employee holds a reasonable concern about an imminent risk to his or her health or safety.”

[15] Clauses 9.1. 5 and 9.5 respectively provide:

“9.1.5 A Trainee Engineer is an Engineer who lacks the requisite qualifications at time of employment, but will be subject to a training programme established by the Company to allow the Engineer to gain experience and qualifications. A Trainee Engineer may work on either a full time or part time basis, and will be paid at a special trainee rate of pay. On-going employment as a trainee is subject to satisfactory progress. Where employment is terminated by the Company any entitlements earned by the Trainee Engineer will be paid.

…

9.5 The Company will make every reasonable effort to man its tugs with Employees engaged under this Agreement. Only in an emergency, or in cases where the Company does not have sufficient Employees (full-time, part-time, or available casuals) of appropriate skills, qualifications or experience, the Company may seek to engage relief crew from other Smit Lamnalco port. Should the previous steps be exhausted, then the company may engage a third party contractor to supply personnel. Such personnel will not be employees of the Company.”

[16] Clause 13 of the AIMPE Agreement 2016 provides as follows:

“13. RECRUITMENT AND CREWING

13.1 Recruitment of Engineers will be on the basis of merit, aptitude, work history, and qualifications. The Company is a non-discriminatory employer.

13.2 Where the Company deems that a new recruit requires additional training, or refresher training, the training will be provided at the Company's expense.

13.3 Tugs shall be crewed at all times during normal harbour towage operations with:

• one Master

• one Marine Engineer; and

• one General Purpose Hand (or Integrated Rating)

13.4 A new recruit will be provided with appropriate safety training, in accordance with Company policy.

13.5 Where the Company intends to recruit permanent, permanent part-time or casual Engineers it will always:

13.5.1 Initially advertise the position within the Gladstone operation (the Union will be advised and may identify candidates for consideration). If no suitable candidates are identified within the existing operation, the position will then be advertised within other SL TA operations, and externally.

13.5.2 Screen and interview applications (an agreed engineer representative will be invited to participate in the shortlisting and interview process).

13.5.3 From the jointly developed short listed candidates, check references and medical fitness for the job; The company will choose the successful applicant on the basis of merit, qualifications and experience, taking into account (but not being bound by) any comments from existing Engineers.

13.5.4 The Company agrees to recruit Engineers who possess a Class 1, Class 2 or Class 3 Certificate of Competency. In the case of a Class 3, the holder most also possess a relevant trade qualification, being a fitter & turner, electrical fitter, diesel fitter or other equivalent engineering trade. A Trainee Engineer must also possess a relevant trade.

13.6 To facilitate selection and engagement of suitable and qualified casual employees, the Company will develop and maintain a list of suitably qualified candidates in accordance with Clause 13.5.

13.7 Potential Engineers must be fit for duty. The Company will require a medical examination by a Company-nominated doctor, the cost of which will be borne by the Company. Recruitment will be subject to a satisfactory medical examination. (AMSA medical as a minimum).

13.8 It is a requirement that Engineers remain fit for duty, including but not limited to being issued with a valid certificate of medical fitness pursuant to any applicable regulations or orders.

13.9 Engineers will attend for medical examination as reasonably required by the Company where the Company has identified valid grounds for the request. The medical examination will be confined to the identified issue. The cost will be borne by the Company, and the Engineer must achieve a satisfactory medical standard (appropriate for the Engineer's position) for continued employment.

13.10 The Company will take all reasonable steps to assist an Engineer in maintaining an acceptable medical standard, but reserves the right to terminate the employment of any Engineer who fails to maintain an acceptable level of fitness.

13.11 Medical examinations of Engineers required by the Company will be by a medical practitioner selected by the Engineer from a panel of at least three medical practitioners nominated by an agreed independent third party.

13.12 New Engineers will be required to serve three months' period of probation. Subject to performance, the Engineer's engagement may be confirmed, or the period of probation extended by no more than one month. If performance is regarded by the Company as unsatisfactory, the Company may terminate the Engineer's employment at that time, and the Engineer will not be entitled to severance payment.

13.13 During probation, the performance of the Engineer will be regularly reviewed, and will be given feedback on progress. The Company will provide all reasonable assistance to encourage the Engineer to meet the required standard of performance.

13.14 Before employment, a security clearance for work is required. This will be in the form of a valid and current Maritime Security Identification Card (MSIC) issued by the relevant government authority. The issue and maintenance of security clearance will be the Engineer's responsibility and is a condition of continuing employment. The Company will reimburse the Engineer for any renewal fees of the MSIC while the Engineer is a permanent Engineer of the Company, or a casual engineer regularly employed by the Company. The Company will, on a once-only basis, reimburse an Engineer for the replacement of an MSIC if lost or damaged.”

[17] Clause 13 of the AIMPE Agreement 2016 is a common clause and is in substantially the same terms in each of the three Agreements. Clause 14 of the AIMPE Agreement 2016 deals with career development and provides as follows:

“14. CAREER DEVELOPMENT

14.1 During the life of the agreement, the Company and the PCC will develop an agreed performance appraisal (including KPis I career development process based on the Smit Lamnalco Integrated Management System (SLIMS) and that reflects Australian operational standards. Personal KPis will remain confidential between the individual employee and the Company, and will not be subject to general publication.

14.2 The Company has a policy of offering eligible Engineers the opportunity to participate in career development.

14.3 The Company will continue to monitor each Engineer's performance, aptitude and ambition to determine selection for career advancement and career direction, in consultation with the Engineer.

14.4 Appointment to specific positions will be subject to Company requirements for those positions.

14.5 The Company will assist participants in career development to improve knowledge and skills, and to obtain further qualifications. The degree of assistance will be at the discretion of the Company, and will be determined after consultation and agreement with the Engineer concerned.”

[18] Clause 14 is also substantially identical in the three Agreements. Schedule 1 at S1.2 of the AIMPE Agreement 2016 sets out the relevant employee duties for employees of SLTA engaged as engineers. It provides as follows:

“S1.2 Engineers

Engineers will be in charge of and responsible for all engineering maintenance in accordance with the Planned Maintenance System existing at the commencement of this Agreement.

The duties of the engineer include, but are not limited to:

• The performance of statutory functions;

• The performance of duties during harbour work, LNG Terminal work, free running, outside work and salvage conditions;

• Compliance, including quality assurance and ISM procedures insofar as they relate to the engineer's duties;

• Maintenance and repair of marine plant and equipment, including emergency maintenance work;

• Tug maintenance in accordance with the Planned Maintenance System;

• Whilst rostered on to a tug, supervision of personnel undertaking and assisting in the engineering functions for that tug;

• Responsibility for signing off on maintenance work completed;

• Preparation of maintenance and operational reports as required;

• To be responsible for the safe operation of the vessel's engines, generators and associated machinery and equipment whilst on towage services

• To ensure that all machinery (deck and engine) is maintained to operational standards at all times

• To carry out routine maintenance and repairs as and when necessary, and to take responsibility for ensuring that the Planned Maintenance System is carried out on board;

• Participation in safety training, including the training of other crew members (e.g. engineer induction and familiarisation);

• Participation in personal development training and personal competency training;

• Assisting other crew members on deck;

• Monitoring and review of relevant work health and safety standards and procedures and reporting as appropriate;

• Undertaking duty at dockings as required by the Company, including monitoring and supervision of other personnel as necessary and appropriate;

• Observing safe working practices, including wearing the industrial and protective clothing provided in accordance with Schedule 6, as well as any additional protective equipment as required by the Company;

• Ensuring day to day compliance with relevant environmental regulations;

In addition to the above, engineers will undertake duties as reasonably required by the

Company, provided that the duties are within the skill, competence and training of the engineer concerned.

Where required, engineers will undertake training in order to maintain and enhance their skills.

Engineers must maintain and keep valid any certificate required by them to perform their duties. The cost will be reimbursed by the Company as per clause 22.2.

In the application of this clause, the Company will have regard to its work health and safety obligations under law. (My emphasis added)”

[19] As previously noted the AIMPE Agreement 2016 contains the same classification structure as the Agreements applying to Masters and GPH/IRs and Schedule 1 in the three Agreements setting out that structure is identical. Schedule 3 of the AIMPE Agreement 2016 provides for Trainee Remuneration for engineers and prescribes salaries for three levels of trainee engineer based on acquisition of qualification service and certification. The AMOU and MUA Agreements contain specific trainee provisions relating to the classifications of employees to whom those agreements respectively apply.

LEGISLATION

[20] Section 51 of the Act prescribes the legal effect of enterprise agreements and provides as follows:

“(1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless enterprise agreement applies to the person.

(2) An enterprise agreement does not give a person an entitlement unless the enterprise agreement applies to the person.”

[21] Section 58(1) of the Act stipulates that only one enterprise agreement can apply to an employee at a particular time. Legislative provisions in relation to the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in enterprise agreements are found in s.595 and s.739 of the Act. Section 595 states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following (a) by mediation or conciliation (b) by making a recommendation or expressing an opinion.

(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section

[22] Section 739 provides that:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[23] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes settlement procedure contained in the enterprise agreement. As a Full Bench of the Commission concisely observed in CFMEU v North Goonyella Coal Mines Pty Ltd 10the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).

[24] Questions on the application of the dispute resolution clause do not arise in the present case. Neither of the parties took issue with the Commission arbitrating the present dispute, the question for arbitration was agreed to by the parties and I have dealt with the matter on the basis that both parties consented to that course. 11

AIMPE EVIDENCE AND SUBMISSIONS

Evidence

[25] Mr Yates stated that SLTA, previously known as Smit Marine, has held the exclusive right to provide towage operations in the Port of Gladstone since it was awarded the licence by the Port of Gladstone Corporation following a competitive tender process. Mr Yates’ evidence was that in his role as Senior National Organiser for AIMPE, it is his responsibility to represent AIMPE members who are employed by SLTA at the Port of Gladstone in disputes or agreement-making negotiations with SLTA. Mr Yates said that the AIMPE Agreement 2016 is the fourth in a series of enterprise agreements covering employees engaged on SLTA’s operations in Gladstone. The earlier enterprise agreements tendered by Mr Yates were:

• Smit Marine Australia and Australian Institute of Marine and Power Engineers Greenfields Agreement which operated from 30 November 2010 and had a nominal expiry date of 31 December 2011; 12

• Smit Marine Australia and AIMPE Enterprise Agreement 2015 which operated from 12 April 2015 and had a nominal expiry date of 30 June 2016. 14

• Smit Marine Australia and AIMPE Enterprise Agreement 2012 which operated from 30 November 2012 and had a nominal expiry date of 31 December 2014; 13

[26] Mr Yates stated that each of these agreements contains an Appendix 1 which details Rosters and Operational Standards. By order of the Commission these appendices have not been published. Mr Yates stated that they are not relevant in the present dispute. Mr Yates was involved in the negotiations for three of the four agreements. Mr Yates stated that he was present during the negotiations of the AIMPE Agreement 2016 subject of this dispute, which he noted was negotiated at the same time that SLTA was in the process of preparing its tender for a renewal of its towage licence with the Port of Gladstone Corporation. It was Mr Yates’ evidence that the fact the negotiations for the AIMPE Agreement 2016 occurred at the same time as SLTA was preparing for the towage licence tender process, affected both the speed of the negotiations and the overall content of the agreement. Mr Yates also said that engineers approved the AIMPE Agreement 2016 in an environment of uncertainty in relation to the industrial relations arrangements and in circumstances where they did not want a change of Company or employment conditions.

[27] Mr Yates further stated that the AIMPE Agreement 2016 was largely based on the terms of the previous 2015 Agreement and that the AIMPE Agreement 2015 was never intended to be a long term agreement as SLTA’s Port of Gladstone worksites were undergoing significant changes in their operational requirements at this time. Consequently, neither SLTA nor AIMPE wanted to lock in work arrangements for the Gladstone members without greater certainty as to the operational requirements of the Port of Gladstone worksites. It was Mr Yates’ evidence that it was intention of the parties who negotiated the AIMPE Agreement 2015 that the experience of the parties during the transition would form the basis of the content of the AIMPE Agreement 2016.

[28] According to Mr Yates, during the negotiation of the AIMPE Agreement 2016, members raised concerns about a number of terms that had been added to the Agreement which did not form part of the AIMPE Agreement 2015. Mr Yates also recalled that AIMPE members were hesitant to approve the AIMPE Agreement 2016 given the ongoing uncertainty over the future of SLTA’s towage operations in the Port of Gladstone. Mr Yates claimed that AIMPE members, by a slim majority, voted to approve the AIMPE Agreement 2016, largely on the assurances of SLTA’s bargaining representatives, including the above outlined assurance in relation to engineer induction and familiarisation training.

[29] Mr Yates gave a history of the Engineer Duties clause in the earlier versions of the AIMPE Agreement 2016 and the negotiations between the parties in relation to the current provision. In the AIMPE Agreement 2011 the duties related to induction and familiarisation stated the engineers obligations as:

“…

• Supervision of personnel undertaking, assisting or engaged under this Agreement for training in the engineering/unction;

…

• Participation in safety training, including training of other crew members
• Assisting other engineers as required, including the familiarisation with plant and equipment;
• Conducting on the job training for trainee engineers;

…”

[30] This was amended in the AIMPE Agreement 2012 Agreement to read:

“…

• Supervision of personnel undertaking, assisting or engaged under this Agreement for training in the engineering function;

…

• Participation in safety training;
• Participation in skills and competency training;
• Assisting other engineers as required, including the familiarisation with plant and equipment.”

[31] Mr Yates’ recollection is that the amendment removing the words “including training of other crew members” was agreed so that engineers would not be obligated to provide engineer induction and familiarisation to employees of the company that were not recruited as engineers. During the negotiations for the AIMPE Agreement 2015, the Duties clause was amended to include an obligation for engineers as follows:

“…

• Participation in safety training, including training of other crew members (e.g. engineer induction and familiarisation):
• Participation in personal development training and personal competency training;

…”

[32] Mr Yates stated that during the negotiations for the 2015 Agreement it was specifically agreed between the company representatives and the AIMPE that engineers would be obligated to provide engineer induction and familiarisation to engineers only and no other crew members. The final clause settled in the AIMPE Agreement 2015 was developed as a result of mutual agreement between a company representative and the AIMPE Assistant Federal Secretary. The agreed words from the AIMPE Agreement 2015 are also reflected in the AIMPE Agreement 2016.

[33] Mr Yates also stated that during the settlement of the AIMPE Agreement 2016 the clause was discussed and again it was affirmed by the Company representatives that engineers would not have an obligation to provide engineer induction and familiarisation to other crew members. In his oral evidence Mr Yates said that the Company representative was Mr Clay Frederick. Mr Yates said it stuck in his head because it was a significant bone of contention for engineers who had a view that they did not have time to do the training and it was a waste of their time inducting people who were not actually going to perform the function of an engineer. According to Mr Yates, if the answer was that the Company did not agree with the operation of the clause advocated by AIMPE the dispute would have escalated and protected industrial action would have been taken in relation to the matter.

[34] Under cross-examination Mr Yates maintained that there is a difference between providing engineer induction and familiarisation and someone coming down to the engine room and being given safety training in relation to what to touch or not to touch and what the dangers in the engine room are.

[35] Mr Yates stated that the present dispute was first raised with him by AIMPE members in late July 2018. Specifically, AIMPE members told Mr Yates that they had heard the GPH employee boasting about the fact SLTA had sponsored him to attend an institution in Launceston so as to obtain a Marine Engineer Class 3 certificate of competency (MEC3 CoC). Mr Yates stated that he raised this issue with Mr Sedgewick and Mr Wetters during a conciliation conference conducted by the Commission on 29 August 2018 in relation to a related dispute. Mr Yates tendered an email to the Commission setting out the understanding of the AIMPE in relation to a number of matters that arose with respect to that dispute and in particular that SLTA had denied engaging a trainee engineer without complying with the recruitment process under the AIMPE Agreement 2016. 15 Mr Yates stated that both Mr Wetters and Mr Sedgwick have denied that SLTA had sponsored the GPH employee to obtain a MEC3 CoC. Mr Yates further stated that on or around 1 November 2018 he was advised by Mr Craze that a GPH had attended a tug for engineer induction and familiarisation a week earlier and that the GPH had claimed to have been issued with a MEC3 CoC and wanted to be trained for relief work on tugs.

[36] Under cross-examination Mr Yates agreed that in relation to the particular GPH subject of the present dispute, that it is the position of the AIMPE is that if the GPH seeks a career as an engineer the employee should resign his position as a GPH and seek employment under the scheme set out in the AIMPE Agreement 2016. In response to the proposition that the rates for a Trainee Engineer under the AIMPE Agreement 2016 are less than those applicable to a GPH and that the GPH would need to take a pay cut, Mr Yates said that this would be the choice of the employee concerned. After completing the training and becoming a qualified engineer, the pay would increase to an amount some 35% in excess of the rate for a GPH. In response to the proposition that it would be beneficial for the GPH to maintain his present pay level and in his non-rostered time or time off, undertake training to become an engineer or be considered for such a position later on, Mr Yates said that no recruitment had been undertaken for a trainee engineer in accordance with the provisions of the AIMPE Agreement 2016. Mr Yates went on to have the following exchange with the legal representative for SLTA:

“Putting aside the qualifications and any concern you have about that, it's a matter of time on the vessel and he's prepared to do it on his own time, and be paid to do it - and also work his normal full-time roster, it's reasonable that the company would attempt to accommodate that?---So GPH, paid during his - so he's getting paid as a general purpose hand for his rostered day for his duty but then also paid to be a trainee engineer?

Not as a trainee engineer, he's undertaking his familiarisation hours.  He's not engaged as a trainee engineer?---No, because the institute's long-standing policy has been, since Adam was a boy, and Eve was around, that we only sign off cadet engineers and trainee engineers duly engaged under the cadetships or traineeships that are structured to conform with the agreed professional standards that we establish.” 16

[37] Mr Craze and Mr Boardman gave evidence about training they had been requested to provide to a GPH. Mr Craze said that on 30 October 2018 he was informed by a scheduler that he had an engineer on board the vessel who had been allocated for that day and that he was to undertake engineer induction and familiarisation. The GPH also informed Mr Craze that he was on board the vessel for engineer induction/familiarisation.

[38] Mr Boardman confirmed that on 6 November 2018 he arrived onto the vessel he was allocated and a GPH was on board. Mr Boardman assumed that the GPH was the deck hand for the day but was informed by the GPH that: “I am your new trainee engineer”. According to Mr Boardman the GPH went on to explain that he had recently finished his Engineer Class Three Certificate and that SLTA had sponsored him to attend the Maritime College in Tasmania and all that was needed for him to be eligible for an engineer’s position was to be trained in each of the three classes of vessels that SLTA has in Gladstone.

[39] Mr Boardman stated that he indicated to the GPH that proper process may not have been followed and was informed by the GPH that he had spent a number of days on other classes of vessels operated by SLTA in Gladstone with no issue. Mr Boardman undertook some training of the GPH providing induction and familiarisation on a number of vessels and completed log book entries for the GPH. Mr Boardman also stated that unlike previous occasions when he had undertaken training, management of SLTA had not contacted him to ask how the person was performing or to discuss any aspect of the training being provided.

[40] Mr Bull said that on 13 November 2018 while on his way to his rostered vessel he was stopped by a GPH who stated that he had obtained an Engineer Class 3 Certificate from AMSA and was in the process of doing Engineer Familiarisation on tugs. According to Mr Bull the GPH also stated that once checked off the Company intends to use him to do relief work in the engineer function and that he intended to do that work. Mr Bull said that he was not aware of any intention by the Company to familiarise a GPH in the engineer function and thought that this was clarified with SLTA at a conference before the Commission. Mr Bull tendered a form which he understands is the current vessel familiarisation checklist that was revised in 2017. 17 This document was also tendered by Mr Sedgwick. According to Mr Bull this checklist covers all three departments however the engineer department has a dedicated section for engineer familiarisation following an induction process.

[41] The form tendered by Mr Bull and Mr Sedgwick is entitled “Vessel Familiarisation Checklist” and indicates that it was issued in July 2017 and is Revision 1. It includes reference to some 28 items which cover a range of safety, procedural and regulatory matters and identification of high risk areas including:

• Safety induction, tours of accommodation internals, main deck, engine room and store spaces;

• Locations of cabin with emergency duties, life jackets, grab bag and fire extinguisher, fire escapes, spare life jackets, emergency escapes, emergency muster list and explanation of crew duties, fire control and fire control panels, watertight doors, fire stations, medical equipment;

• Location and activation of emergency shutdowns, fire dampers and vents;

• Location and operation of watertight doors, fire hydrants, hoses, emergency fire pump, oil spill response equipment;

• Local or specific Port regulations;

• Treatment of on-board garbage and garbage maintenance plan;

• Location of Vessel Specific Emergency Response Manual and explanation of contents

• Vessel and Port security levels;

• Information on hazardous chemicals on board and MSDS folder;

• High risk tasks and activities performed aboard the vessel;

• Location of Asbestos Management Plan and Register and location of asbestos on-board if relevant.

[42] The Form also contains a series of items to be completed by Masters and Chief Engineers. The items for completion by Chief Engineers are as follows:

• Explanation and Demonstration of Start-Up and Shut-Down procedures
• Pre-Departure Manoevuring System Test procedures.
• Wheelhouse/ Engine room Control Changeover.
• Secondary and Emergency Steering Systems and Changeover.
• Understanding of Generation and Electrical Systems.
• Review of Bunker System and Bunkering procedure.
• Review of Air/ Hydraulic systems and operation.
• Review of Bilge/ Ballast system.
• Operation of FiFi pumps and Foam systems.
• Review and understanding of Tankage and consumable levels.

[43] Mr Bull said he has not used the checklist form or its previous version because previously there were dedicated engineers who conducted the induction and familiarisation check off. It is Mr Bull’s belief that the Company has ceased the practice of having a check off engineer. In response to a question from me, Mr Yates agreed that it is the items for chief engineers that are the subject of the resolution by AIMPE members and the AIMPE maintains that Engineers cannot be required to familiarise or sign off employees who are not engineers or trainee engineers in relation to these matters 18.

[44] Mr Yates stated that upon becoming aware of the situations with respect to engineers being asked to undertake familiarisation and induction of non-engineers, he contacted Mr Sedgwick and raised the matter with him. Mr Sedgwick responded by stating that the GPH was seeking engineer induction and familiarisation. Mr Yates further stated that he had a discussion with Mr Sedgwick during which he informed Mr Sedgwick that the recruitment process had not been followed and that the Company had specifically agreed in negotiations for the AIMPE Agreement 2016 that only engineers would be provided with engineer induction and familiarisation. Mr Sedgwick’s response was that the GPH is an employee of the Company. Mr Yates also tendered correspondence between himself and Mr Sedgwick in which the issue was discussed. In that correspondence Mr Yates maintained that the employee concerned is a GPH and has not been engaged as an engineer or trainee and that the AIMPE had not agreed to “faux traineeships.” Mr Sedgwick maintained that the GPH concerned holds the appropriate qualifications under legislation and workshop skill equivalent. Mr Sedgwick also stated that:

“This GPH is an employee of Smit Lamnalco (and has been for a number of years) and is not a trainee as defined under the EA but rather an employee who is developing their skills, knowledge and obtaining further certification to progress their career under the career development process.” 19

[45] On 19 November 2018 Mr Yates and Mr Bull met with Mr Wetters and Mr Sedgwick to discuss the resolution. Mr Yates stated that Mr Wetters said at the meeting that the training expected to be provided by Engineers was part of a career development program. Mr Yates stated that his response to this was to tell Mr Wetters and Mr Sedgwick that there was no career development program agreed under the AIMPE Agreement 2016 in relation to engineers and that what may have been agreed with another Union had no binding effect on engineers.

[46] Mr Bull also gave evidence about the meeting on 19 November 2018 stating that he raised the following points and that Company representatives responded as follows:

• The GPH has not been employed as an engineer, Smit agreed this is true.

• The GPH is not a trainee engineer, Smit agreed this is true.

• Smit intend to use the GPH to work in the engineer function while employed full time as a GPH, Smit agreed this is true.

• Employment of the GPH in the engineer function disadvantages engineers already employed by Smit, Smit agreed this is true and stated it was not their intention to disadvantage other engineers employed by them but they stated they intended to do this regardless.

• The GPH does not require familiarisation training to advance his career path as this would be done should he gain employment as an engineer when the next position becomes available at Smit and lack of familiarisation would not disadvantage him in obtaining such a position, Smit disagreed and stated they would like him to complete familiarisation training.

• Engineers claim there is nothing in the EA requiring engineers to give GPHs familiarisation in the engineer function, Smit disagree.

[47] Mr Bull also said that at this meeting SLTA claimed the AIMPE is opposed to career development. According to Mr Bull both he and Mr Yates disagreed with that statement citing the existence of an engineer trainee pathway in the AIMPE Agreement 2016 for employees wishing to progress to an engineering career. Mr Bull also maintained that SLTA representatives at the meeting stated that once the GPH had undertaken the familiarisation the Company would utilise him in an engineer’s role as a relief employee and did not indicate that this would not occur until the GPH had been employed as an engineer. Further, Mr Bull said that during negotiations for the 2016 Agreement Company representatives made statements that he understood to mean that engineers would only be required to provide engineering induction and familiarisation to engineers. In his oral evidence Mr Bull said that this statement was made by Mr Clay Fredericks on behalf of SLTA. 20

[48] Mr Bull also maintained that to move from a GPH role to an engineer role is not career progression but a different career. Familiarisation is provided to engineers who apply for a position as an Engineer and it is not the usual practice for engineers who apply for a position to have already undertaken familiarisation training. Mr Bull further stated that the refusal of engineers to provide familiarisation to the GPH was not disadvantaging him in his career path, because such training did not apply to his career path as a GPH. Under cross-examination Mr Bull maintained that it is the position of engineers covered by the AIMPE Agreement 2016 that in order for someone to undertake the familiarisation training they have to already be employed as an engineer or a trainee engineer. Mr Bull agreed that if an engineer wanted to undertake training for career progression then he would expect that other crew on a vessel would co-operate and that this would be reasonable. In re-examination Mr Bull said that in the process of recruitment of engineers under clause 13 of the Agreement, qualifications would be looked at. In relation to the GPH, Mr Bull had not sighted any qualifications held by that employee.

[49] Mr Yates tendered a later email exchange with Mr Sedgwick after the meeting on 19 November 2018. In an email sent on 19 November 2018 at 11.59 am Mr Sedgwick queries the reasons why engineers had refused to comply with a lawful rand reasonable request to: “sign off the engineer familiarisation training for a Smit Lamnalco employee undergoing career development.” The email further states that the engineers have referred to clause 13 and Schedule 1 of the AIMPE Agreement 2016 as grounds for their refusal and that the Company’s position is that:

“…

• Clause 13 is not relevant as the employee has been employed by the Company within the Gladstone operation since 2014.

• Schedule 1 Employee duties, S1.2 includes – the duties of the engineer include but are not limited to; Participation in safety training including the training of other crew members (eg. engineer induction and familiarisation).” 21

[50] Mr Yates’ response sent on 20 November 2018 at 2.14 pm stated that:

“The motion that was passed by members was not a refusal, but:

‘AIMPE engineers will only provide familiarisation training to engineers who have been employed as per clause 13 Recruitment and Crewing of the agreed enterprise agreement 25 January 2017."

There is no obligation for assistance with career development of GPH's under the EA - nor was any initiative discussed, requested, or agreed between AIMPE (that is, approved by the members in the EA) and Smit Lamnalco.

This means that members will do what needs to be done under the EA and no more, no less.

We appreciate your curiosity on the scope and hope that this clarifies the position of engineers to do what was agreed to be done under the EA - i.e. for engineers engaged under the EA, familiarisation. That is all that is required under the Fair Work Act - i.e. to work in accordance with the EA as the company has agreed.

As the matter is in dispute the status quo remains and we would be pleased to facilitate the dispute resolution procedures by asking Deputy President Asbury to relist the matter already listed in the Fair Work Commission at her convenience.” 22

[51] Mr Craze and Mr Boardman also gave evidence about the induction and familiarisation of staff aboard vessels. Mr Craze said that there is a vessel familiarisation checklist which needs to be completed for each class of vessel that employees are on board and that there is a relevant discipline induction and familiarisation for the engineering department. This is engineer induction/familiarisation for each type of vessel. Vessel familiarisation is conducted for any person that is on board the vessel and encompasses relevant safety related items, where to find exits, lifejackets and the difference between emergency signals, alarms and muster stations.

[52] Mr Boardman said that he has gone through familiarisation training with numerous permanent and casual engineers since being employed with SLTA. According to Mr Boardman, engineer induction and familiarisation while working around shipping movements, is very time consuming. Attention is given to the engineer who is unfamiliar with the vessel and routine maintenance is not carried out. Experienced engineers use a variety of techniques to ensure that the Engineer who is unfamiliar with the vessel understands how it is laid out.

[53] During Mr Yates’ oral evidence I had the following exchanges with Mr Yates:

“All right.  So class - so let's say, for the sake of this argument, not even … , there's somebody who's not employed currently by Smit, and they come - they've gone to and undertaken formal training and gotten the class 3 qualification and they come and they go through - come in as a trainee engineer, they'd be inducted, the engineers would undertake this familiarisation - - -?---As a trainee engineer.

Yes, as a matter of course?---Yes.

Okay.  So regardless, they have to undertake that induction?---Yes.

So [GPH employee], in his own time, goes and does the class 3 and gets it, okay?---Yes.

So if he did undertake - then come in as a trainee you'd do the induction then?---If they were engaged as a trainee engineer, under the enterprise agreement.

Yes.  Well, what's the objection to doing it so that so that if he is subsequently engaged as a trainee he doesn't have to do it, he's already done it and he can move faster through the career progression?---Well, he hasn't been appointed under the terms of the enterprise agreement.  The terms that we agreed with the company was that you'd only ever have to engage engineers appointed under the enterprise agreement.

Okay.  All right, I understand.  So, regardless, he - the only difference is if he holds a class 3 and he's employed full-time as a general purpose hand, you won't provide training to him, but if he resigns as a general purpose hand, takes up a trainee engineer's position and moves in that way then you will?---Yes.

So you'll find the time to do it then, but you won't find the time to do it now?---Because they would be serving as a supernumerary, working with the engineer.

But that's the proposal here.  [GPH employee] would be a supernumerary, working with the engineer.  So whether he's in a trainee role or his current situation, that's no different, is it, under what the company's been asking the engineers to do?---Well, it doesn't stop with where - that point there, it stops at the point where there hasn't been a recruitment process for a trainee.  There hasn't been any involvement of the engineers and no notification to the union.  Because, as a matter of fact, at each enterprise agreement negotiation I've stuck my hand up and said, "Any chance of putting on five trainees, under the terms of the agreement?"  The company says, "No, no way."

…

Whether he is under the trainee provisions of this agreement, or he's a general purpose hand who goes off and, in his own time, undertakes the class 3 certificate of competency, he's still a person who holds a class 3 certificate of competency, isn't he?---Yes, but he's not appointed as an engineer, under the enterprise agreement.” 23

Submissions

[54] The AIMPE submits that the resolution is not a breach of the obligations of the AIMPE employees under the AIMPE Agreement and therefore the question for arbitration should be answered, “Yes”. AIMPE rejects SLTA’s submission that S1.2 of Schedule 1 of the AIMPE Agreement creates a binding obligation on the AIMPE employees to provide engineer induction and familiarisation training to any employee of SLTA. AIMPE submits in response that the AIMPE Agreement 2016 only has application to employees of SLTA who are employed as engineers under that Agreement. Consequently, AIMPE submits that engineers cannot be obliged to provide engineer induction and familiarisation training to any employee of SLTA who is not employed as an engineer under the AIMPE Agreement.

[55] The AIMPE directed the Commission to clause 3 of the AIMPE Agreement, which defines “engineer” as follows:

“a person employed by Smit Lamnalco Towage (Australia) Pty Ltd for towage operations, to whom this Agreement applies.”

[56] The AIMPE submits that, as the definition in clause 3 specifically defines “engineers” as engineers employed under the AIMPE Agreement 2016, the phrase “engineer induction and familiarisation training” at S1.2 of Schedule 1 can only be referring to those employees employed as engineers under that Agreement. Consequently, AIMPE submits that the AIMPE employees had no obligation to provide induction and familiarisation training to persons other than those employed as engineers under the AIMPE Agreement.

[57] The AIMPE submits that if the term “engineer” were to have a meaning other than the one outlined above, than the phrase “engineer induction and familiarisation training” at S1.2 of Schedule 1 would imply that the AIMPE employees were obliged to provide induction and familiarisation training to any employee engaged with SLTA under any industrial instrument. AIMPE submits that for the Commission to accept the above outlined interpretation of S1.2 of Schedule 1 would be contrary to the intentions of the parties who negotiated the AIMPE Agreement 2016.

[58] The AIMPE referred to the evidence of Mr Bull in relation to assurances given by SLTA to AIMPE at the time of negotiating the AIMPE Agreement 2016 that the application of S1.2 of Schedule 1 would not require the AIMPE employees to provide engineer induction and familiarisation training to employees were not employed as engineers under the AIMPE Agreement. The AIMPE also referred to the evidence of Mr Yates in relation to SLTA offering assurances to AIMPE in regards to the provision of engineer induction and familiarisation training. AIMPE further directed the Commission’s consideration to Clause 9.1.5 of the AIMPE Agreement 2016 in support of this submission.

[59] The AIMPE submits that the above clause specifically provides that “trainee engineers” are “engineers” for the purposes of the AIMPE Agreement 2016. The AIMPE also submits that the AIMPE Agreement 2016 outlines a detailed training program for trainee engineers at S3.2 of Schedule 3 of the AIMPE Agreement, which includes an outline of the various stages and remuneration levels a trainee engineer progresses through whilst obtaining their Class 3 certification. AIMPE also noted “trainee engineers” are subject to specific recruitment provisions as outlined in Clause 13 of the AIMPE Agreement 2016.

[60] The AIMPE additionally asserts that the “appropriate safety training” provided to a new recruit trainee engineer under Clause 13.3 of the AIMPE Agreement 2016, is a reference to the “engineer induction and familiarisation training” as outlined at S1.2 of Schedule 1 of the AIMPE Agreement 2016. AIMPE contends that the detailed provisions of the AIMPE Agreement 2016 relating to the recruitment and training trainee engineers form the entirety of AIMPE members’ obligations in relation to employees of SLTA who are not certified engineers. AIMPE submits that no obligations exist for AIMPE members to provide training to employees who not certified engineers, other than the above referenced provisions relating to the recruitment and training of employees employed by SLTA as trainee engineers under the AIMPE Agreement 2016.

[61] The AIMPE rejects the proposition that an “engine room safety induction” constitutes “engineer induction and familiarisation training”, as it is part of the general induction and not specific to those employees engaged as engineers under the AIMPE Agreement 2016. The AIMPE also points to the fact that that the duties of employees engaged as GPHs as outlined at S1.3 of Schedule 1 of the AIMPE Agreement 2016, do not confer any obligations on them as “engineers” except when providing incidental “assistance in the engine room when required by the engineer”. The AIMPE further notes that employees of SLTA who are employed as GPHs have no entitlements or protections afforded to them under the AIMPE Agreement 2016.

[62] The AIMPE contends that the GPH employee of SLTA who sought to be given engineer induction and familiarisation training was not recruited or employed as either an “engineer” or a “trainee engineer” under the AIMPE Agreement 2016 and did not provide evidence to any of the AIMPE employees that he was a certified marine engineer entitled to familiarisation training.

[63] The AIMPE submits that, as the GPH employee is still employed by SLTA as a GPH, he was not covered by the AIMPE Agreement 2016 but rather was engaged pursuant to the MUA Agreement. AIMPE submits that, pursuant to s.58(1) of the Act, employees employed under the AIMPE Agreement 2016 cannot be bound by any provisions of the MUA Agreement. AIMPE notes that even if this was not contrary to the Act, there is no reference in the AIMPE Agreement to any of the provisions of the MUA Agreement.

[64] AIMPE submits that, pursuant to s.51 of the Act, if SLTA sought for a GPH employee to undertake engineer induction and familiarisation training, that employee must be recruited and engaged as a trainee engineer pursuant to clause 13.5 of the AIMPE Agreement 2016 and that this process was not followed in relation to the GPH employee.

[65] Relying on the principles of construction outlined in Kucks 24and Berri,25 the AIMPE submits that on a plain and ordinary meaning of the AIMPE Agreement 2016, in the context of SLTA’s assurances during the negotiation process and bearing in mind the requirements of the Act, the resolution of the AIMPE employees of the 16 November 2018 is not inconsistent with their obligations under the AIMPE Agreement, and the question for arbitration should be answered: “yes”.

SLTA EVIDENCE AND SUBMISSIONS

Evidence

[66] Mr Sedgwick’s evidence was that there are 28 crews across ten tugs. Each tug is required to be crewed by a Master, an Engineer and a General Purpose Hand (GPH). The Company’s Gladstone operations are regulated by three different industrial instruments respectively applying to: Engineers; Integrated Ratings/General Purpose Hands; and Masters. According to Mr Sedgwick, the Company has committed to work with its employees in relation to their own personal career development. This commitment is also reflected in each of the above enterprise agreements, which provide at clause 14 for career development in the same terms. According to Mr Sedgwick, any employee who desires to develop skills, competency and/or certification is encouraged to participate in the Individual Development Plans which the Company helps them achieve where there are mutual benefits to both parties.

[67] Mr Sedgwick states that he is in discussion with various engineers about developing their own Individual Development Plans who have approached the Company to support them achieve development goals. For most engineers, the furtherance of their career involves mainly theoretical training and mentoring from non-tug crew. As an example of career development for engineers, Mr Sedgwick states that on Tuesday 27 February 2018, he met with Mr Craze who raised the possibility of engineers with a Master Class V certificate of competency completing Master relief training while being employed as the sole on-board engineer.

[68] In relation to the GPH subject of the present dispute, Mr Sedgwick said that on or around 20 March 2018, the GPH who had been working for the Company since 2014, made him aware that as a part of his personal career development, he would like to work towards being considered for recruitment as an engineer. The GPH advised Mr Sedgwick that he wanted to go to college to get his Engineer Class 3 Certificate. Mr Sedgwick agreed that the Company would assist the GPH to do this. Mr Sedgwick said that employees expressing an interest in career development and progression is not unusual and gave an example of two GPH’s who expressed interest in beginning training to get their Masters’ ticket and having gained the relevant qualifications and experience to currently fill in as casual Masters when required.

[69] The GPH in the present case possesses a relevant trade that allows him to bypass certain steps in the engineer qualification. In accordance with its commitment to career development, the Company agreed that the GPH could work towards this and he undertook the course in his own time. The Company reimbursed the GPH for his accommodation and course costs. The GPH worked in his full time role as a GPH while undertaking further study and continues to do so. The GPH has not been engaged or employed by the Company as an engineer or a trainee engineer. If he completes his familiarisation training, Mr Sedgwick expects that the GPH will then be in a positon to be considered for an engineer role along with any other candidates. If the Company recruits a person for an engineer role then the process as set out in clause 13 of the Agreement will apply.

[70] As part of the training undertaken by the GPH, Mr Sedgwick instructed that he work with an engineer while on board a vessel in use. Mr Sedgwick advised the schedulers who look after the daily tug and crew allocations to include the GPH as an additional person (that is he was in addition to a full crew, not replacing a crew member). The purpose of this was for the GPH to undertake vessel familiarisation. The GPH has now been rostered on at least sixteen shifts with an engineer to assist him with this familiarisation training and has undertaken training with three engineers, including Mr Craze. According to Mr Sedgwick, it is preferable that the GPH train with a number of different engineers to gain a breadth of experience across the different class of tugs operating in Gladstone.

[71] Mr Sedgwick stated that during the familiarisation process, two of the three engineers provided verbal feedback on his performance and learning and none of the three engineers raised any objection to the GPH’s presence on the vessels or that he was undertaking the training. Mr Sedgwick further stated that none of the three engineers indicated to him that they believed this was inconsistent with the Agreement.

[72] On or around 19 November 2018 Mr Sedgwick met with Mr Bull and Mr Yates. During the meeting Mr Bull and Mr Yates raised an objection to the GPH undertaking vessel familiarisation. According to Mr Sedgwick, a great deal of the discussion centred on the GPH’s qualifications rather than the familiarisation tasks he was actually undertaking. Ultimately, Mr Yates and Mr Bull advised Mr Sedgwick that engineers would not be signing off the “Vessel Familiarisation” form, notwithstanding that the GPH had already undertaken the familiarisation training and that a resolution to this effect had been voted on and passed by engineers. Mr Yates confirmed this by email stating that engineers would not be undertaking vessel familiarisation training with anyone who had not been engaged as an engineer under the “Recruitment” clause of the Agreement.

[73] In response to the evidence of Mr Yates and Mr Bull, Mr Sedgwick disputed the characterisation of the Company’s position in a conciliation conference before the Commission and maintained that it is correct to state that SLTA has not engaged the GPH as a trainee engineer. Mr Sedgwick also disputed Mr Yates’ characterisation of the arrangement as a “faux traineeship” maintaining that the GPH is developing his skills and knowledge and obtaining further certification to progress his career under the career development process and at some later stage will be able to apply for any engineer position that SLTA recruits for. In relation to Mr Yates’ evidence about the negotiations for the AIMPE Agreement 2016 and earlier iterations, Mr Sedgwick said that he was not party to the negotiations as he was not employed by SLTA at that time but that there has never been an indication that the clause setting out the engineer’s duties is limited so that training can only be provided to engineers in the manner contended for by the AIMPE.

[74] Mr Sedgwick also said that contrary to the evidence of Mr Bull, the Company had confirmed that any future employment of the GPH to undertake actual engineering duties would be subject to the recruitment clause in the AIMPE Agreement 2016. Permanent or casual engineers would not be disadvantaged if the GPH was engaged as a casual engineer at some future point as there is always a need to maintain a supply of casual engineers. Mr Sedgwick also disputed that the training modules checklist tendered by Mr Craze is an approved Company document or part of its Document Management System. Mr Sedgwick tendered the Vessel Familiarisation Checklist Form that engineers have been asked to complete in relation to the GPH. 26 The form tendered by Mr Sedgwick is the same form tendered by Mr Bull, the contents of which are summarised above.

[75] Under cross examination, Mr Sedgwick agreed that each of the three Agreements applying to SLTA’s Gladstone operations pertains to separate occupations and each occupation is considered a career. Mr Sedgwick further agreed that a GPH who wished to become an engineer would be changing career. In order to become an engineer for SLTA’s operations in Gladstone, an employee requires a Class 3 Certificate of engineering and to be endorsed and certified by the regulator. Regulatory certification is based on education and experience in the form of sea time. Mr Sedgwick confirmed that SLTA provided assistance for the GPH by paying his course costs and accommodation expenses for attendance at the Australian Maritime College and that he had completed a Certificate of Engineering Class 3. Mr Sedgwick was taken to the terms of the AIMPE Agreement 2016 and agreed that the provisions in Schedule 3 outline the steps required for an employee to obtain such certification and that there were no such provisions in the Agreement covering GPHs. Mr Sedgwick further agreed that the GPH in question had also completed the requirements for Trainee Stage 3 under the AIMPE Agreement 2016 and that the Company had assisted him to do so.

[76] Mr Sedgwick further agreed that it is the intention of SLTA to utilise the services of the GPH as a relief engineer but maintained that the Company would not do so unless the GPH was recruited in accordance with clause 13 of the AIMPE Agreement 2016. Mr Sedgwick maintained that it is reasonable for engineers to be directed to provide familiarisation to persons for a role that they cannot fulfil notwithstanding that he agreed that this would be a cost to SLTA. In relation to his instruction to schedulers to include the GPH as an additional person rather than a replacement for a crew member, Mr Sedgwick said that the GPH was working in his capacity as a GPH during the familiarisation and induction process and was on the vessel in that capacity. The GPH did not undertake other duties. Mr Sedgwick also maintained that an employee can be inducted into a role without first being employed in the role.

[77] Mr Sedgwick also maintained that even if an employee who is provided with training and support to undertake studies is not found to be competent, that employee can still gain skills and knowledge that may be useful to the Company. Mr Sedgwick further maintained that the employee concerned could be employed on a full time basis as a GPH and perform work as a casual employee under the AIMPE Agreement 2016, provided that he was properly recruited as an Engineer. In response to a question as to whether the GPH had requested the training Mr Sedgwick said that he had encouraged the GPH to undertake the training and he was willing. 27 Mr Sedgwick said that he did not accept that the Vessel Familiarisation Check List was a matter in relation to which consultation with the Port Consultative Committee was required on the basis that it was not an official document within SLTA’s safety management system. Mr Sedgwick also said that the Checklist had not been agreed with the AIMPE.

[78] In re-examination, Mr Sedgwick said that the benefit is encouragement of employees to further their careers and that with a three person crew the Company does not have the luxury of having lots of people aboard vessels. The more employees that know about the role of other employees the better they work as a team and are more productive. Mr Sedgwick also maintained that a full time GPH could undertake casual shifts as an engineer provided that the GPH was recruited as an engineer in accordance with the AIMPE Agreement 2016 and the Company would pay the gap between GPH and Engineer’s rates.

[79] Ms Holdsworth gave evidence in a statement about the negotiations for the AIMPE Agreement 2016. According to her evidence, all Unions and particularly the AIMPE were very particular about anything that was agreed being expressly recorded in the Agreements and were not prepared to have any side agreements or understandings about what a particular clause meant. As part of the negotiations for the AIMPE Agreement 2012 the AIMPE negotiated to have the word “Employee” replaced with “Engineer” throughout the Agreement and in the negotiations for the AIMPE Agreement 2016 the Union demanded that the term “Engineer” be used in lieu of “Employee” in any new clauses. Ms Holdsworth states that at no time does she recall any representative of the AIMPE negotiating or requesting to limit training (or even familiarisation training) to Engineers.

[80] Ms Holdsworth disputed Mr Bull’s evidence and denied that any concerns were raised by engineers about being required to provide engineer induction and familiarisation to crew other than employed Engineers. Ms Holdsworth also denied that the Company had provided the assurance Mr Bull claims were given. In response to Mr Yates’ statement Ms Holdsworth denied that the Company affirmed that engineers would not be required to give induction and familiarisation training to other crew members. Further, Ms Holdsworth asserted that if the parties had agreed that the clause would only apply to engineers, then based on the approach by AIMPE and the Company to remove any ambiguity they would have replaced the words “crew member” in the relevant provision with the term “engineer”.

Submissions

[81] SLTA submits that the resolution is a breach of the obligations of the AIMPE employees under the AIMPE Agreement 2016 and that the question for arbitration should be answered, “No”. SLTA submits that clause 13 of the AIMPE Agreement 2016 contains no provision permitting employees covered by the AIMPE Agreement 2016 to refuse to work with others.

[82] In addition, SLTA submits that nothing in clause 13 or any other provision of the AIMPE Agreement 2016 encumbers SLTA’s discretion to direct employees who are engaged as engineers pursuant to the AIMPE Agreement, including the AIMPE employees, to undertake any and all work that is within their skill, competence and training. SLTA directed the Commission’s attention to S1.2 of Schedule 1 of the AIMPE Agreement, which contains a non-exhaustive list of duties that may be required to be performed by employees engaged as engineers under the AIMPE Agreement. SLTA drew particular attention to the following duties as listed at S1.2 of Schedule 1 of the AIMPE Agreement:

“•  Participation in safety training, including the training of other crew members (e.g. engineer induction and familiarisation);

•  Assisting other crew members on deck;

•  Undertaking duty at dockings as required by the Company, including monitoring and supervision of other personnel as is necessary and appropriate;”

[83] SLTA submits that the duties outlined at S1.2 of Schedule 1 of the AIMPE Agreement 2016, in particular those outlined above, evidence that employees of SLTA who are engaged as engineers under the AIMPE Agreement 2016 are required to work with other employees of SLTA, including crew members, when directed to do so by the Company.

[84] SLTA rejected the interpretation of the AIMPE Agreement 2016 proposed by AIMPE, arguing that it would limit the duties required to be performed by employees of SLTA engaged as engineers under the AIMPE Agreement 2016. SLTA submits that such an interpretation would go against the plain ordinary meaning of the AIMPE Agreement 2016 at S1.2 of Schedule 1 which provides as follows:

“In addition to the above, engineers will undertake duties as reasonably required by the Company, provided that the duties are within the skill, competence and training of the engineer concerned.”

[85] SLTA submits that AIMPE’s application is concerned solely with the single element of one of the duties listed at S1.2 of Schedule 1 of the AIMPE Agreement 2016, namely the requirement to provide engineer induction and familiarisation training. SLTA argued that the AIMPE’s interpretation of this element of S1.2 of Schedule 1 discounts the contextual significance of both the overarching duty in relation to training and the other duties listed at S1.2 of Schedule 1.

[86] SLTA submitted that the duty outlined at S1.2 of Schedule 1 for engineers employed pursuant to the AIMPE Agreement to provide “engineer induction and familiarisation training” to other crew members, is only one element of the duty pertaining to training as outlined in S1.2 of Schedule 1 of the AIMPE Agreement. SLTA argues that the fact this requirement is supplementary to, and not constitutive of, the duty in relation to training as outlined at S1.2 of Schedule 1, is evidenced by the fact it was written in parentheses and prefaced with the term ‘e.g.’ In making this submission SLTA relied on the decision of Deputy President Booth in Construction, Forestry, Maritime, Mining and Energy Union -The Maritime Union of Australia Division v Qube Ports Pty Ltd T/A Qube Ports. 28

[87] SLTA further noted that the duty in relation to induction and familiarisation training outlined at S1.2 of Schedule 1 of the AIMPE Agreement 2016 (the duty to train) includes a reference to employees of SLTA not engaged as ‘engineers’ under the AIMPE Agreement, namely ‘other crew members.’ SLTA contends that this reference negates the AIMPE’s submission that S1.2 of Schedule 1 of AIMPE Agreement 2016 applies exclusively to employees of SLTA engaged as engineers under the AIMPE Agreement.

[88] SLTA contended that if the drafters of the AIMPE Agreement 2016 had intended the duty to train to apply only to employees of SLTA engaged as engineers under the AIMPE Agreement 2016, then the drafters would have used the term “engineer” and not “other crew members”. SLTA submitted that AIMPE’s interpretation of the duty to train would result in the agreement being read as follows:

“Participation in safety training, including the training of Engineers (e.g. engineer induction and familiarisation);”

[89] SLTA submitted that to interpret the duty to train in the above manner would be an unreasonable interpretation of the language used in S1.2 of Schedule 1 of the AIMPE Agreement and would therefore be inconsistent with the principles outlined in Berri. SLTA further submitted that, even if the duty to train were interpreted consistently with AIMPE’s submissions, the Company would still retain the right to require employees engaged as engineers under the AIMPE Agreement 2016 to provide induction and familiarisation training to employees not engaged as engineers under the AIMPE Agreement.

[90] SLTA submitted that the Company’s right to require engineers to provide induction and familiarisation to employees not covered by the AIMPE Agreement, derives from the requirement the engineers will undertake duties as reasonably required by the Company which appears as an additional requirement in S1.2. SLTA submitted that the requirement to provide familiarisation training to non-AIMPE Agreement covered employees of SLTA, is both reasonable and within the skill, competence and training of the employees engaged by SLTA as engineers under the AIMPE Agreement 2016 and that engineers are required to comply.

[91] SLTA further submitted that no express or implied term of the AIMPE Agreement 2016 precludes employees of SLTA who are not employed as engineers pursuant to clause 13 of the AIMPE Agreement 2016 from being provided engineer induction and familiarisation training. SLTA argued that no such term should be read into the AIMPE Agreement 2016 as it is already unambiguous and not capable of being given more than one interpretation.

[92] SLTA contended that the interpretation of the AIMPE Agreement 2016 advanced by AIMPE in its submissions is contrary to the principle in Berri,as it seeks to read terms into the AIMPE Agreement 2016 despite it having no ambiguity when given its plain and ordinary meaning. Consequently, SLTA argues that AIMPE’s reference to the circumstances of the negotiation process for the AIMPE Agreement 2016 is irrelevant, as pursuant to the principle in Berri such information should not be used to contradict the language of an industrial instrument when it is capable of being given its plain and ordinary meaning.

[93] SLTA rejected AIMPE’s evidence that, during the negotiation of the AIMPE Agreement 2016, representatives of SLTA provided assurances to representatives of AIMPE that the effect of the wording of S1.2 of Schedule 1 would not require the AIMPE employees to provide induction and familiarisation training to employees not employed as engineers pursuant to the AIMPE Agreement 2016. In making this submission, SLTA relied on the evidence of Ms Holdworth, who contradicted the evidence of Mr Bull and Mr Yates and denied that any representations were made by SLTA to AIMPE’s representatives during the negotiation of the AIMPE Agreement in relation to engineer induction and familiarisation training. 29

APPROACH TO THE CONSTRUCTION OF ENTERPRISE AGREEMENTS

[94] As referenced by both parties in their written and oral submissions, the approach to construing enterprise agreements was most recently set out in a Decision of a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 30as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the Agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[95] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine 31a Full Bench of the Commission held that the context of an agreement provision is significant. In this regard, the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA32emphasising the following matters:

•  Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means 33 and there is always some context to any statement;34

•  Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”; 35

•  To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side; 36

•  The phrase used by Mason J in Codelfa 37“if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;38 and

•  Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction. 39

[96] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose are relevant to the construction of provisions in an enterprise agreement and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.

CONSIDERATION

[97] Consistent with the approach set out in Berri the construction of enterprise agreements begins with consideration of the ordinary meaning of the relevant words. The clause of the AIMPE Agreement 2016 on which the AIMPE’s position in relation to training is based is found in Schedule 1 of the Agreement. The provision consists of some introductory words followed by points setting out a range of duties and is as follows: “The duties of the engineer include but are not limited to…Participation in safety training, including the training of other crew members (eg. engineer induction and familiarisation)”. There are 18 points or items setting out engineer duties under the introductory words, including the disputed provision.

[98] Essentially the AIMPE’s case is that the disputed provision should be read so that the duties of engineers insofar as they relate to “engineer induction and familiarisation” are limited to the provision of engineer induction and familiarisation to engineers or trainee engineers employed under and in accordance with the provisions of the AIMPE Agreement 2016.

[99] There are a number of cases involving statutory construction where the use of the term “includes” in a definition which lists items has been considered to be expansive so that items not listed but which would generally fall within the definition are considered as being included. Although the present case does not involve construction of a statutory definition or a list of items, I am of the view that the principles are relevant. Those principles establish that the use of the term “including” is expansive rather than exhaustive. In the present case, the introductory words above the 18 items – including the item on which the present dispute centres – also contain the term “include” and in my view the effect is to expand rather than restrict the operation of the provison.

[100] It is also notable that the disputed term refers to the duties of engineers as “including the training of other crew members” and is not limited to training engineers. Even if the reference to other crew members is in relation to safety training, the expansive way in which the clause is expressed is also apparent in the use of the term “e.g” before the reference to engineering induction and familiarisation. The term “e.g.” is an abbreviation of the Latin term exempli gratia meaning “for example”. That term when followed by a list of items is also not exhaustive and such a list is generally construed as being a list of items that are characteristic of their kind or illustrative of a general rule. 40 The fact that there is only one example is not limiting of other kinds of training that might be provided and adds to the general impression that the provision is not one of limitation.

[101] The fact that the term “e.g. engineer induction and familiarisation”is in parentheses or brackets also does not indicate any limitation or that the description of the training is intended to be exhaustive. It is the case, as submitted by SLTA, that the use of brackets is generally to separate information that is not essential to the meaning of the rest of the sentence and that they are used in circumstances where if the bracketed material is removed the sentence will still make sense. In my view this observation is apposite in the present case. If the bracketed words were removed from the clause, there would be no doubt that engineers would be required to provide training to all crew members subject to other considerations such as that the training was in relation to matters within their skills, competence and training. The inclusion of the reference to “e.g. engineer induction and familiarisation” in brackets after the provision does not in my view restrict the training that engineers may be required to provide to other classifications of employees of SLTA.

[102] I do not accept that the use of the term “induction” in the disputed provision limits the training to persons employed as engineers under the AIMPE Agreement 2016. In the context of employment induction has a generally understood meaning. A person may be inducted before or during employment in the classification to which the induction relates. An induction may be conducted for persons who are never going to be employed in a classification – for example visitors to a workplace or employees who are going to work in an area temporarily to undertake maintenance may be required to undertake an induction. I see no basis for finding that this term restricts the operation of the provision or the ability of SLTA to direct employees to induct any person that the Company requires subject to restrictions such as the lawfulness and reasonableness of the direction and that the training is within the skills and competency of the trainer.

[103] I turn now to consider the context and purpose of the provision apparent from the text of the AIMPE Agreement 2016 viewed as a whole and the place of the disputed provision in the Agreement. It is apparent from the text of the AIMPE Agreement 2016 viewed as a whole that it operates in the context of other Agreements applying to Masters and General Purpose Hands/Integrated Ratings and regulates the relationship between Engineers and those classifications notwithstanding that it covers only engineers.

[104] The AIMPE Agreement 2016 sets out duties performed by Masters and General Purpose Hands/Integrated Ratings notwithstanding that it does not apply to those classifications of employee. The AIMPE Agreement 2016 also prescribes minimum wage rates for both of those classifications in addition to those for Engineers. Clause 2 of the Agreement states that it applies to the towage operations of SLTA in Gladstone. By virtue of the definition of “Engineer” in clause 3 of the Agreement, an engineer means a person employed by SLTA for towage operations to whom the Agreement applies. While the AIMPE Agreement 2016 does not apply to other classifications of employee it is clear that it prescribes some of the relationships between engineers and other classifications of employee.

[105] Clauses 7.6 and 7.8 of the AIMPE Agreement 2016 which respectively deal with the composition of a Port Consultative Committee and a Port Safety Committee, provide representation for Masters, Engineers and the GPHs/IRs employed by the Company on those Committees. Clause 13.3 mandates that Tugs are to be crewed at all times during normal harbour operations by one Master, one Marine Engineer and one GPH or IR. As previously noted, Schedule 1 in which the disputed provision appears, lists employee duties for the three categories of employment and commences with the following preamble:

“This Schedule lists the duties of Employees under the three categories of Master, Engineer and General Purpose Hand/Integrated Rating (GPH/IR).”

[106] The Schedule also sets out the responsibilities of Engineers and Masters and makes clear that Masters have overriding command of the tug and crew with responsibility for the safe and reliable operation of the tug while Engineers are responsible for and in charge of all engineering and maintenance in accordance with the planned maintenance system existing at the commencement of the Agreement. Given the extent to which the AIMPE Agreement 2016 regulates the relationship of engineers with other classifications of employees, it is entirely consistent with the terms of that Agreement that engineers are required to undertake training of other classifications of employees and that there is no restriction in relation to training other classifications other than restrictions related to skills and competence of the trainer and the lawfulness and reasonableness of the direction to conduct training.

[107] It is also the case that SLTA has obligations and rights under all three Agreements which are binding on the Company in respect of its Gladstone operations. Clause 6 of the AIMPE Agreement 2016 relevantly includes as a purpose of the Agreement “to allow the management of the Company to conduct its operations consistent with the Agreement.” There are similar provisions in the Agreements applying to SLTA with respect to Masters and GPH/IRs and those Agreements also contain provisions in relation to provision of training and career development for the employees covered by them. This is also indicative that the training provision in Schedule 1.2 should not be construed in the manner contended for by AIMPE.

[108] Contrary to the submission of the AIMPE, there is no statutory restriction on an enterprise agreement regulating relationships or interactions between employees who are covered by an agreement and employees or other persons who are not, by placing obligations on or giving rights to the employees covered by the Agreement. In the present case the AIMPE Agreement 2016 does not apply to Masters or GPH/IR’s. However it does not follow that it cannot impose obligations on engineers in relation to interactions with these other categories of employees. This is entirely consistent with s. 51 of the Act. The AIMPE Agreement 2016 places no obligations and gives no rights to employees covered by other agreements but rather imposes obligations on engineers to train those persons where required by SLTA to do so and consistent with requirements that the direction be reasonable and that the training be within the skills and competence of the engineer who is directed to carry out the training.

[109] Further, under the specified duties of engineers in Schedule 1.2 there is a provision stating that: “In addition to the above [the specified duties] engineers will undertake duties as reasonably required by the Company, provided that the duties are within the skills, competence and training of the engineer concerned.” This is not a general provision which gives way to a specific provision such as the disputed term in relation to training. Rather this is an additional duty. The provision is listed under the other duties and by its terms operates in addition to those duties and is subject to only the compass of the skills, competence and training of engineers covered by the AIMPE Agreement 2016 and the reasonableness of the direction.

[110] Clause 13 of the AIMPE Agreement 2016 provides the AIMPE and engineers rights in relation to the recruitment process for engineers including the right to be advised and to identify candidates for consideration and representation in the processes of shortlisting and interviewing of candidates. Engineer representatives have no right of veto over candidates. There is nothing in clause 13 of the AIMPE Agreement 2016 to support the contention that engineers can only be required to provide engineer induction and familiarisation training to persons employed as engineers under the Agreement. To the contrary, the Company has retained the right under clause 13 to determine who will be recruited as an engineer and this is inconsistent with the Company conceding that engineers may choose to whom they will or will not provide training based on whether that person is employed as an engineer or trainee engineer under the AIMPE Agreement 2016.

[111] It is also notable that in a significant number of clauses throughout the AIMPE Agreement 2016, where the term “engineer” is intended to operate as a noun the first letter of the word is a capital letter. The term “Engineer” is used in a significant number of clauses throughout the AIMPE Agreement 2016 instead of or synonymously with the term “employee”. It is also notable that where the term is used as a noun and is not capitalised it is often used in a plural form. In clause S1.2 of Schedule 1 of the AIMPE Agreement 2016 the term “engineer” and derivatives of that term appear in a number of contexts. The preamble to the list of duties begins with the term “Engineers” and the paragraph that precedes the itemised duties commences with the words: “The duties of the engineer include but are not limited to…”. In both instances the term is used as a noun. This can be contrasted with the use of the term “engineer” in the disputed provision which refers to “engineer induction and familiarisation”. The fact that neither the plural nor the possessive form of the term engineer is used is indicative that it is an adjective and the provision is describing the type of familiarisation and induction that will be provided by engineers rather than limiting the classification of persons to whom it may be provided.

[112] In relation to the legislative context under which the AIMPE Agreement 2016 was made and in which it operates, that context includes the Objects of the Act and of Part 2-4 Enterprise agreements. Relevantly the Objects of Part 2-4 include:

“171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

…”

[113] Also relevant are the Objects of the Act in s. 3 which include:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

…”

[114] SLTA’s stated objectives in requiring engineers to provide the engineer induction and familiarisation to the GPH in the present case include providing the GPH with a career path or options in that regard and improving its productivity and flexibility by creating a multi-skilled workforce where crew members on vessels have an understanding of roles of other crew members. These objectives are entirely consistent with the Objectives of the Act generally and Part 2-4 in particular.

[115] On the basis of the text and context of the disputed provision I am satisfied that it has a plain meaning and that engineers are required to provide engineer induction and familiarisation training to persons that the Company directs them to provide such training to, subject only to the skills, competence and training of the engineer providing the training and the reasonableness of the direction. Reasonableness may encompass a safety concern or regulatory issue. In the present case there is no evidence of any concern on the part of engineers with respect to their skills, competency and training to deliver engineer familiarisation and induction training. Neither is there any issue of the lawfulness or reasonableness of the instruction. The evidence establishes that SLTA has placed the GPH on vessels as a supernumerary and not as part of the minimum crew. The evidence of the engineers and AIMPE is that engineers believe that the training they have been requested to provide to the GPH is a waste of their time on the basis of their view that the GPH will never become an engineer. This is not a legitimate reason to refuse to provide training as directed by SLTA. For completeness I am also of the view that signing off on a training checklist is ancillary to training and encompassed by that term and that a refusal to sign off on a check list is a refusal to undertake training.

[116] Given my view that the disputed term of the AIMPE Agreement 2016 has a plain meaning, evidence of surrounding circumstances should not be admitted to contradict the plain language of the Agreement. However, if I am wrong in relation to the Agreement having a plain meaning, I am of the view that the evidence of surrounding circumstances does not establish objective background facts and does not aid in the interpretation of the Agreement or support the interpretation advanced by AIMPE.

[117] Evidence given by Mr Yates about the motives of engineers for voting to approve the AIMPE Agreement 2016 or that the Agreement was approved by the slimmest of majorities is not evidence of objective background facts but rather is subjective. The history of the clause and the negotiations set out in Mr Yates’ evidence is that in the 2012 Agreement the words “including training of other crew members” were removed and that it is his recollection that this was agreed so that engineers would not be obligated to provide engineer induction and familiarisation to employees of the Company who were not recruited as engineers. The difficulty with this evidence is that the words were reinserted in the 2015 Agreement and were retained in the 2016 Agreement.

[118] The fact that there were oral discussions to the effect that engineers would not be required to provide such training is inconsistent with the words which the AIMPE maintains created the obligation and which were removed in the negotiations for the 2012 Agreement and reinserted in the 2015 Agreement. Such discussions are also inconsistent with Ms Holdsworth’s uncontested evidence to the effect that the AIMPE and its members were insistent that there would be no “side agreements or understandings” and that all matters were expressly recorded in the Agreement. I note that clause 2.6 of the AIMPE Agreement 2016 is consistent with Ms Holdsworth’s evidence on this matter and provides as follows:

“2.6 The parties acknowledge that there is no other agreement, written or unwritten between the parties relating to harbour towage, unless filed with the agreement.”

[119] It is also the case that Ms Holdsworth expressly denies that there was an agreement that engineers would not be required to train employees other than those employed under the AIMPE Agreement 2016 as engineers or trainee engineers. For these reasons I do not accept that there is sufficient evidence upon which to base a conclusion that there was an actual intention of the parties about such a limitation or that it was a matter in common contemplation or a common assumption.

[120] I note that SLTA concedes (correctly in my view) that it cannot employ a person as an engineer or trainee engineer other than in accordance with clause 13. SLTA maintains that it has not employed the GPH in question as an engineer or trainee engineer and that if it does so in the future it will comply with clause 13 of the Agreement. I accept that the GPH is not employed in the capacity of engineer or trainee engineer. I have concerns about Mr Sedgwick’s views, expressed in his evidence, that the GPH (if recruited as a trainee engineer in accordance with clause 13) could undertake employment as a casual employee on that basis while also performing a full time role as a GPH. However these practicalities are not relevant to the proper construction of the AIMPE Agreement 2016 and the disputed provision. This is because it is not necessary that the GPH is recruited as a trainee engineer in order for engineers to whom the AIMPE Agreement 2016 applies to be required to provide engineer induction and familiarisation training to him or to any other employee designated by SLTA. Further, issues raised during the hearing in relation to whether or not SLTA has complied with recruitment clauses in other Gladstone Agreements are not within the ambit of the present dispute or the agreed question for arbitration. Accordingly I make no finding in relation to these matters.

CONCLUSION

[121] For the reasons set out above I do not accept that the resolution of AIMPE members that they will only provide familiarisation training to engineers who have been employed in accordance with clause 13 of the AIMPE Agreement 2016 is consistent with their obligations under that Agreement. Accordingly, I answer the Question for arbitration: No.

DEPUTY PRESIDENT

Appearances:

Mr N Niven on behalf of the AIMPE.

Mr A Dearden of Hall & Wilcox on behalf of SLTA.

Hearing details:

Brisbane.

7 December.

2018.

Printed by authority of the Commonwealth Government Printer

<PR704276>

 1   Witness Statement of Greg Yates dated 27 November 2018 at Paragraph [24]-[32].

 2   Witness Statement of Desmond Bull dated 27 November 2018 at Paragraph [13]-[15].

 3   Exhibit A4 - Witness Statement of Gregory James Yates Paragraphs [39]-[40].

 4   Exhibit A4 – Witness Statement of Gregory James Yates.

 5   Exhibit A3 – Witness Statement of Desmond Arthur Bull.

 6   Exhibit A1 – Witness Statement of Matthew Crays.

 7   Exhibit A2 – Witness Statement of Trevor Boardman.

 8   Exhibit R2 – Witness Statement of Peter Sedgwick.

 9   Exhibit R1 – Witness Statement of Sasha Holdsworth.

 10   [2015] FWCFB 5619.

 11   [2017] FWCFB 2749.

 12   [2010] FWAA 8968.

 13   [2012] FWAA 9897.

 14   [2016] FWCA 1899.

 15   Exhibit A4 Annexure 7.

 16   Transcript of proceedings 7 December 2018 PN358-359.

 17   Exhibit A3 Annexure 1.

 18   Transcript of proceedings 7 December 2018 PN365.

 19   Exhibit A4 Annexures 8, 9 and 10.

 20   Transcript of proceedings 7 December 2018 PN56.

 21   Exhibit A4 Annexure 11.

 22   Exhibit A4 Annexure 12.

 23   Transcript of proceedings 7 December 2018 at PN410-418, 428.

 24 (1996) 66 IR 182.

 25   The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005; Kucks v CSR Limited [1996] IRCA 166.

 26   Exhibit R2 Annexure “PS-3”.

 27   Transcript of proceedings 7 December 2018 PN559-560.

 28   [2018] FWC 5537

 29  Witness Statement of Sasha Holdsworth dated 5 December 2018, Exhibit R1, at Paragraphs [11]-[14].

 30   [2017] FWCFB 3005 at [14].

 31   [2017] FWCFB 4487.

 32 [2014] NSWCA 184 at [71] – [85].

 33  Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.

 34  Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].

 35   Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

 36   Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing) and Dale v The Queen [2012] VSCA 324 at [73].

 37  Codelfa Construction Proprietary Limited v State Rail Authority of NSW (1982) 149 CLR 337.

 38  Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].

 39  Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].

 40   Australian Concise Oxford Dictionary.