The Australian Maritime Officers’ Union, The Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage (Australia) Pty Ltd
[2024] FWC 230
•29 JANUARY 2024
| [2024] FWC 230 [Note: An appeal pursuant to s.604 (C2024/966) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
The Australian Maritime Officers’ Union, The Australian Institute of Marine and Power Engineers
v
Smit Lamnalco Towage (Australia) Pty Ltd
(C2020/9259; C2020/9260; C2022/219)
| VICE PRESIDENT ASBURY | BRISBANE, 29 JANUARY 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]
Background and issues in dispute
The Australian Maritime Officers’ Union (AMOU) and the Australian Institute of Marine and Power Engineers (AIMPE) (collectively, the Unions) have applied to the Fair Work Commission (Commission) under s. 739 of the Fair Work Act 2009 (the Act) for the Commission to deal with disputes involving employees of Smit Lamnalco Towage (Australia) Pty Ltd (Respondent/Company) who are engaged in the Company’s towage operations in the Port of Gladstone (Port).
The Company has an exclusive licence from the Gladstone Ports Corporation (GPC) to provide towage services for the Port and has guaranteed to GPC that it will provide a specified number of tugboats, over 24 hours per day, on 365 days of the year, to meet the Port’s general shipping requirements. Those tugboats must be “manned for operation” on 30 minutes notice, by a crew, consisting of one employee in each of the classifications of Master, Engineer and General Purpose Hand (GPH). Masters are represented by the AMOU and Engineers by the AIMPE.
The disputes have been notified under the dispute resolution procedures contained in clause 8 of the Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2016 and the Smit Lamnalco (Towage) Australia Pty Ltd and AIMPE Gladstone Enterprise Agreement 2016 (collectively, the 2016 Agreements). It is not in issue that clause 8 empowers the Commission to deal with the disputes by arbitration. Aside from the classifications of employees covered, the provisions of the 2016 Agreements are essentially identical, and respectively cover Masters and Engineers employed by the Company. Employees classified as GPHs are covered by a separate agreement made with the Maritime Union of Australia and are not party to the disputes the subject of these proceedings.
The Agreements provide for employees working outside the hours of rostered shifts to additional leave and/or remuneration. Essentially the disputes are about the application of these provisions to employees engaged on a part-time or casual basis when those employees work beyond the ceasing time of the shift on which they are rostered. To determine the disputes, it is necessary to construe clauses of the 2016 Agreements dealing with leave, hours of work and related matters, remuneration and clauses in Appendix 1 to the Agreement which generally deals with Rosters of Work and Operational Standards.
The parties agree that the issues in dispute concern, firstly, the meaning and parameters of a “day” or “rostered day” with respect to the hours of engagement of casual employees, and secondly, the correct entitlements, including whether any additional remuneration applies and certain leave entitlements accrue, for permanent part-time and casual employees, who are required to work beyond the finishing time of a rostered shift.[1]
Procedural history
The 2016 Agreements, subject of these disputes, reached their nominal expiry date in December 2020. After protracted bargaining negotiations, the parties ultimately agreed to roll over the 2016 Agreements rather than negotiating replacement agreements. The Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2022 and the Smit Lamnalco (Towage) Australia Pty Ltd and AIMPE Gladstone Enterprise Agreement 2022 (the 2022 Agreements) commenced operation on 12 August 2022 and 7 September 2022 respectively. The 2022 Agreements include identical terms to the disputed terms in the 2016 Agreements. It is accepted by the parties that the arbitration of these disputes arising under the 2016 Agreements proceeded on the basis that the disputes had not been resolved.
Directions were issued on 1 February 2022 for a hearing requiring that the parties file and serve written material in support of their respective position. The following material was received from the parties:
The AMOU filed an outline of submissions and material in reply on 19 April 2022 and 3 June 2022 respectively. Evidence in support of the AMOU’s case was provided by Mr Clive Laurenson,[2] and Mr Warren O’Dempsey,[3] who are employed by the Company as Tug Masters.
The AIMPE filed an outline of submissions in reply to the Company’s material on 8 June 2022. Both the AMOU and the AIMPE indicated that they adopt and rely on the submissions filed by the other Union.
The Company provided an outline of submissions on 21 May 2022 and evidence in support of its position was given by Mr Peter Sedgwick[4], the General Manager for Company’s operation at the Port of Gladstone.
An agreed statement of facts was filed by the parties on 29 July 2022 and is contained in Annexure A to this Decision.
The present matters[5] were three of several related dispute applications made to the Commission regarding the interpretation of the 2016 Agreements. On 18 August 2022, the parties jointly requested that the three matters be joined and that these matters not be listed for hearing until after a related dispute was heard and determined. That related dispute involved the same parties and same Agreements and was referred to as the “12/24 Dispute” (referred to by the Respondent in these proceedings as the “work time” dispute) which concerned the scheduling hours of work and the meaning and parameters of “work time” for the purposes of entitlements to rest breaks and TOIL. It was further requested by the parties that the present matters be listed for case management following a determination in the 12/24 Dispute so that the need for any further evidence, amended outlines of submission and/or an agreed statement of facts could be considered at that time. I determined to join the matters and to conduct a single hearing in relation to them.
The 12/24 Dispute was determined in a Decision[6] issued on 29 May 2023 (12/24 Decision) and Reasons for Decision[7] were provided to the parties on 26 June 2023. Considering the determination of the meaning of “work time” in the context of scheduling hours, rest breaks and entitlements to TOIL, the Unions indicated that one of the questions for arbitration they initially proposed – When does work time start? (i) when through the gate; or (ii) when onboard a tug – would no longer be pressed in the present matters.
On 9 August 2023, a case management hearing was conducted for the purpose of programming the matters for hearing. The parties indicated that because some time had passed since filing their material, they sought and were granted an opportunity to review the material that they had filed and provide any additional or amended material within a period of two weeks. On 23 August 2023, the AMOU filed an amended outline of submissions. The Company filed its updated outline of submissions on 6 September 2023 and a document in a tabular format comparing the provisions of the 2016 Agreements relevant to these matters, with the equivalent provisions contained in the previous iterations of the Agreements. The AMOU and the AIMPE filed submissions in reply to the Company’s updated submissions, on 12 September and 13 September 2023 respectively.
On 13 September 2023, the AMOU advised the Commission that the parties had reached an agreed position that the witnesses in these proceedings would not be required for cross-examination.
A hearing was conducted by video link on 14 September 2023. At the hearing, the AMOU was represented by its Organiser, Ms T. Ellis. The AIMPE was represented by its Senior National Organiser, Mr G. Yates. The Company was represented by Mr K. Brotherson of counsel instructed by Hall & Wilcox. Permission was granted for the Company to be legally represented as I was satisfied that the construction of the Agreements raised issues of some complexity and the assistance from the Company’s legal representatives would enable the matters to be dealt with more efficiently.
At the hearing, Mr Brotherson advised that the Company sought to replace its earlier written submissions filed on 21 May 2022 with an updated outline of submissions and the Commission should not have regard to the Company’s earlier submissions. In its updated outline of submissions, the Company accepted that its contention that clause 17.11 of the Agreements did not apply to part-time employees, and that part-time employees working beyond their guaranteed hours were dealt with by clause 11.4 of Appendix 1, is erroneous. Having reconsidered this issue, the Company now adopted the position that clause 17.11 does apply to part-time employees in respect of their rostered leave, and this would be relevant to the questions for arbitration posed in (c) and (d).[8] In addition, Mr Brotherson advised that at a practical level, the current position taken by the Company with respect to clause 17.11 will mean that the Company will be required to carry out consultation at the workplace so as to determine what the implications are and how the provision will operate, and that this process has already begun.
Witness statements were tendered by the parties at the hearing. The Company submitted that the Commission may in these proceeding draw on the evidence and submissions about provisions of the Agreements that have been dealt with in multiple decisions as accrued knowledge and background information. After clarifying that this did not mean that evidence in the earlier proceedings would be accepted as evidence in this matter, the Unions did not take issue with this submission.
Relevant Agreement provisions
The provisions of the 2016 Agreements relevant to the disputes are found in the Agreement and Appendix 1 of the Agreements, entitled “Rosters of Work and Operational Standards”. Appendix 1 provides for, inter alia, rosters for crews and vessels, and is the subject of a non-publication order on the basis that it contains confidential operational information, the publication of which would be contrary to the Company’s interests. In light of this I have set out only the provisions of Appendix 1 which are required to be construed to resolve this dispute.
Clause 2 of the 2016 Agreements provides that the Agreement applies to the towage operations of the Company in the Port of Gladstone and other identified towage operations.[9] The Agreement is required to be read in conjunction with the Marine Towage Award 2010 (the Award), as varied, but in the event of any inconsistency between the Agreement and the Award, the Agreement will prevail.[10]
Clause 9 is headed “Types of Employment” and sets out several categories of employment in which an employee may be engaged by the Company. Clause 9 is in the following terms:
“9. TYPES OF EMPLOYMENT
9.1 An Employee engaged under this Agreement may be engaged as a permanent full time, permanent part time, fixed term/specific task, casual, or trainee Employee as follows:
9.1.1 A Permanent Full Time Employee is an Employee who is engaged to work on a full time basis in accordance with the operating roster of the port.
9.1.2 A Permanent Part Time Employee is an Employee who is engaged for an agreed proportion of full time employment. The details of employment will be furnished to the Employee at the commencement of employment.
(i) Any entitlements and benefits payable will be adjusted to reflect actual days worked.
(ii) Any additional days worked will be by agreement with the employee.
9.1.3 An Employee engaged for a fixed term or specific task is an Employee who works on either a full time or part time basis, but is engaged for a fixed term or to perform a specific task.
9.1.4 A Casual Employee is an Employee who is not regularly rostered to work but is engaged in single periods which will not be less than one day duration. For the purposes of this clause, “one day” has the same meaning as a rostered day for a full time Employee.
9.1.5 A Trainee Employee is an Employee who lacks the requisite qualifications at time of employment, but will be subject to a training programme established by the Company to allow the Employee to gain experience and qualifications. A Trainee Employee 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 Employee will be paid.
9.2 Permanent Part Time employment may facilitate job sharing arrangements where there has been consultation and mutual agreement between the Employees concerned and the Company.
9.3 Where two or more Employees share a job, and one or more leave the Company’s employment to leave only one in the job share position, that remaining Employee will be offered Permanent Full Time employment unless otherwise agreed between the Employee and the Company.
9.4 At the time of engagement an Employee will be advised in which category he or she is to be engaged and, where relevant, the duration of the Fixed Term or Specific Task.
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.
9.6 The Company will make every reasonable effort to consult with the relevant Delegates and the Unions prior to the engagement of such a contractor. To the extent permissible under law, the Company will require the contractor to observe the rates and conditions in respect of its employees as are applicable to this Agreement, provided that the total cost to the Company does not exceed the cost had Employees employed under this Agreement been available for the work. This clause does not apply to services provided to the company by third parties at the wharf or on tugs while at the wharf.
9.6.1 Should a SLTA employee from another port accept a relief shift in the SLTA Gladstone Towage operation, the employee will receive the rate of pay provided for as per Schedule 2.1 (unless the employee’s existing rate was higher, in which case the higher of the two rates will be paid). SLTA will reimburse pre-approved business expenses incurred to allow such employees to join/leave the vessel.
9.7 The duties associated with the positions of Master, Engineer, and General Purpose Hand / Integrated Rating respectively are appended to this Agreement as Schedule 1.”
Clause 15 of the Agreement deals with remuneration for employees and provides as follows:
“15. REMUNERATION
15.1 Remuneration levels for Permanent Full Time Employees will be in accordance with Schedule 2, appended to this Agreement.
15.2 Permanent Part Time Employees will be paid, pro-rata, the equivalent salary and leave to that of a Permanent Full Time Employee in accordance with Clause 11 of Appendix 1.
15.3 Casual Employees’ remuneration will be calculated per day, at 1/365 per day of the annual rate applicable to Permanent Full Time Employees, plus 100% of the daily rate in lieu of leave entitlements.
15.4 Employees engaged for a specified period of time or for a specified task will be paid as a Permanent Full Time Employee or as a Permanent Part Time Employee, depending on their mode of engagement and the period employed.
15.5 Trainee Employees will be paid in accordance with Schedule 3, appended to this Agreement. However Schedule 3 shall not be applied where the Trainee forms part of the required compliment.
15.6 An employee who is undertaking training whilst included in the vessel minimum manning, will be paid normal operational rates. However if the employee undertaking training is on-board in a supernumerary capacity they will receive one day’s pay.
15.7 The amounts payable to any Employee pursuant to this clause (including the relevant Schedules) shall constitute the whole of an Employee’s remuneration, and take account of all aspects and conditions of employment including allowances, and penalty payments, unless otherwise expressly provided for in this Agreement.
15.8 Additional payments expressly provided for in this Agreement include:
15.8.1 Extended Hours maintenance as provided in the appended Rosters of Work and Operational Standards;
15.8.2 An hourly rate for cyclone/tsunami watch duties, as requested by the Company.
Payment rates are detailed in Schedule 2.
15.8.3 Reimbursement for the use of personal vehicles on company business, with prior approval from the Company. Reimbursement will be at the prevailing Australian Tax Office rate.
15.8.4 Reimbursement of passport costs and visa costs actually incurred as a direct consequence of outside work, salvage, lay-ups and dry-docking outside Australia, and any Company prescribed overseas visits.
15.8.5 Outside work rates as detailed in Schedule 4.
15.9 Salary packaging is permitted to the extent allowed by the Australian Tax Office provided it does not involve additional expense for the Company. Salary packaging will be at the Employee’s option. An example of salary packaging which would be permitted under this clause is a motor vehicle Novated Lease, any Company contribution towards medical and trauma insurance for Employees, and healthy lifestyle packages, all of which will be on an “opt-in” basis.
15.10 Employees shall be paid by means of a direct deposit transfer into an account nominated by the Employee, each fortnight in arrears.
15.11 The fortnightly payment advice detailing amounts due and leave entitlements including sick leave due, shall be provided to the Employee.
15.12 Any retrospective salary due to Employees will be paid to Employees as soon as practicable after the Agreement has been approved by Fair Work Australia.” (Emphasis added)
Clauses 17 of the Agreement deals with leave and clause 18 deals with the accrual of leave. For the purposes of these clauses, the term “rostered leave” is defined in clause 3 to mean the 182 days free of duty as provided under the Agreement and “Banked leave” is defined to mean leave accrued as a result of an employee performing work outside the normal roster. As clause 17 indicates, the 182 days free of duty applies to Permanent Full Time Employees, with Permanent Part Time Employees being entitled to days free of duty each year on a pro-rata basis. This is a matter to which I will return. For present purposes, clauses 17 and 18 are in the following terms:
“17. LEAVE
17.1 A Permanent Full Time Employee will be entitled to 182 days free of duty within his/her roster per year of continuous service.
17.2 The rostered leave prescribed in this Clause 17.1 includes the following entitlements of full-time employees:
·104 days of leave, being in lieu of weekends;
·5 weeks of paid annual leave for shift workers;
·public holiday entitlements;
·an additional 28 days leave in recognition of the 35-hour week;
·a further 15 days agreed to by the Company to reflect industry work pattern standards.
17.3 A Permanent Part Time Employee will be entitled to days free of duty per year of continuous service on a pro-rata basis. At least 42 days of such leave each year (if the Employee is entitled to 42 days leave per year) will be predicted leave, the timing of which will be determined by agreement between the Employee and the Company.
17.4 An Employee engaged for a Fixed Term or Specific Task will be entitled, pro-rata, to the leave granted to a Full Time Employee based on the period of the engagement.
17.5 Casual Employees will not be entitled to leave (except as specified in Clause 28 Outside Work and Salvage), but will be compensated by a 100% loading on remuneration as detailed in Clause 15.3.
17.6 An Employee on probation will be entitled to rostered leave and personal /carers leave within his/her roster, but will not be entitled to other leave.
17.7 In order to satisfy the leave entitlement defined above, the Employee shall work in accordance with an appropriate roster, which shall take into account the occupational health and welfare of Employees.
17.8 By mutual consent between the Company and Employee, “leave without pay” may be granted, but no leave will accrue during leave taken “without pay”.
17.9 If an Employee agrees to undertake Company required training during his/her rostered leave then the rostered leave will be re-credited to the employee.
17.10 Where an employee agrees to attend for duty during her/his rostered leave and such work is delayed (for more than 12 hours or cancelled within 12 hours of the steam time initially provided) and for as long as the Employee is asked to and remains prepared to undertake the work, then the rostered leave will be re-credited to the Employee.
17.11 Where an Employee is requested and the Employee agrees to undertake any other work during his/her rostered leave and the Employee undertakes that work, then the rostered leave will be re-credited to the Employee. In addition to the applicable daily rate, the Employee will be entitled to one day’s banked leave for every day worked. This clause is also applicable for any work required to be undertaken beyond the end of the rostered work period.” (emphasis added)
18. ACCRUAL OF LEAVE AND CONTINUITY OF SERVICE
18.1 The Company regards the taking of leave as an essential element of occupational health and safety. For this reason, it is desirable to take leave as the entitlement becomes due, subject to operational requirements.
18.2 Banked Leave will be taken at a time mutually agreed between the Employee and the Company.
18.3 From six months after the adoption of this Agreement, the Company may, at its option cash out any Banked Leave accrued in excess of 25 days at the employee’s prevailing salary rate. Banked Leave in excess of 25 days can be accrued with the agreement of the Company.
18.4 For the purpose of this clause, employment will be deemed continuous despite the Employee’s absence on any form of approved leave, or as a result of the Employee’s absence for any other reason which is either authorised by the Company, or protected under the provisions of the Fair Work Act 2009 or by suspension or breakdown of machinery or plan.”
Appendix 1 to the Agreement deals with Rosters of Work and Operational Standards. Clause 3 of the Appendix provides that the matter in the Appendix will comply with the terms of the Agreement. The objectives of the arrangements in the Agreement and Appendix 1 are to assure the guaranteed provision of a designated number of tugs, 24 hours a day, 365 days a year, manned and ready for operation on no more than 30 minutes’ notice, to meet all of the general shipping requirements of the Port. Clause 4 of Appendix 1 provides that a crew roster will be maintained and that at the start of the Agreement, the Company had employed a specified number of 100% Full Time Equivalent (FTE) employees from each of the categories of Master, Engineer and GPH/IR to cover the agreed working arrangements contained in the Agreement.
In summary, Vessel rosters designate certain numbers of tugboats as Primary or Secondary Tugs while crew rosters allocate crews to operate those tugboats in accordance with the vessel rosters. Primary Tugs are designated as “day” or “night” and are operated by crews rostered for 12-hour spans from 0700 to 1900 and 1900 to 0700, respectively. Secondary Tugs are operated by crews rostered for 24-hour spans from 0700 to 0700. Crew rosters provide for employees to rotate over a 28-week roster cycle during which they are rostered on for 14 weeks and have 14 weeks off. During the 14 weeks they are rostered on, employees work for a total of 6 weeks on Secondary Tugs and 8 weeks on Primary Tugs, in a series of rotations. The Agreements provide for employees to leave the tugs and the workplace when they are rostered on and are not required to undertake towage or maintenance duties. During this time, employees are required to make themselves “available” to “turn-to” for duty on 30 minutes notice. Employees “turn to” when they board a tugboat and are paid their full salary for the time they are available.
Hours of duty are dealt with in clause 7 of Appendix 1 which relevantly provides as follows:
“7. HOURS OF DUTY AND BREAKS FROM WORK
7.1Scheduled hours of duty should ordinarily not exceed 12 hours.
7.2Where an Employee works beyond 12 hours to meet operational requirements, the Employee shall be entitled to accumulate time off in lieu of payment for each hour or part thereof the Employee remains on duty, at the rate of one hour for every hour or part thereof in excess of 12 hours. When 8 hours have been accumulated, the Employee is entitled to one day’s Banked Leave.
7.3Scheduled hours of work should ordinarily not exceed 12 hours. However, if due to unusual operational circumstances an employee is required to be on continuous duty for more than 14 hours, the employee must be given a rest break of at least 10 hours at the cessation of that period of duty before the commencement of the next period of duty.
7.4No period of continuous duty will exceed 16 hours.
7.5An Employee will not be required to work more than three periods of unbroken duty in excess of 12 hours in any consecutive 7-day period.
7.6An Employee must be provided with minimum aggregate rest of 77 hours in every 7-day period.
7.7A nominated rest break of 7 hours or more breaks the continuity of duty. In the instance that there are two consecutive breaks of between 7 and 8 hours taken, the third break will be no less than 12 hours. The company will always use its best efforts to extend this rest period break beyond 8 hours, provided this extension will not interfere with shipping operations.
7.8Employees will be entitled to a meal break on completion of 5 hours of duty. The meal break will not constitute a break when assessing unbroken duty. Meal breaks must be taken flexibly. For the avoidance of doubt meal breaks must not be taken in a manner or at a time that would interrupt port operations.
7.9If a required rest break will impinge on towage operations, the company may take any or all of the following options to ensure continuity of service:
-substitute other rostered-on tugs;
-substitute other rostered-on crew members;
-utilise part time or casual crews if available;
-utilise crews on leave;
-utilise SLTA personnel from other areas.
7.10It is the responsibility of every employee to be fit for the commencement of duty; that is, to be properly rested in readiness for the commencement of his/her rostered shift. All employees shall manage their own fatigue and facilitate achieving suitable rest to ensure they are fit for duty when required.
Should an employee, in their opinion, not be fit for duty (for example due to fatigue or other situation outside of the employees control) they are obligated to stop work, and report to the Scheduler that they will require a period of rest prior to being fit to return to duty. Such a period of rest shall be classed as a ‘fatigue break’, and the company shall release the employee from duty without loss of pay or entitlements.
The requirement for a fatigue break should be reported to the scheduler prior to commencement of the shift (where possible) or as soon as is practically possible to enable the scheduler to locate a suitable relief.
The company supports employees self-managing and reporting their fatigue and fitness for duty and will ensure that all employees are aware of these obligations.”
The arrangements concerning work days and leave accrual for permanent part-time employees are detailed in clause 11 which provides as follows:
“11. SUPPLEMENTARY / RELIEF ARRANGEMENTS – CALL BACKS (RECALLS) AND PART TIME EMPLOYMENT ARRANGEMENTS
11.1 In the first instance, the Permanent Part-Time employees shall cover all absences from duty. If further relief is required, casual employees will be engaged having regard to the required certificates and appropriate training and will be paid in accordance with the applicable clause in the current EA. If a Permanent Part-Time employee, or a casual employee is not available to relieve, then a Permanent employee on a voluntary basis may be recalled from leave, and will be paid in accordance with the applicable clause in the current EA.
A job share employee may voluntarily nominate to have the same availability and order of call preference as a permanent part-time employee, to provide relief on a periodic basis in addition to their roster.
11.2 Although full-time Permanent employees on rostered leave are not obliged to be available for relief work, they will make their best effort to ensure that port operations are not compromised by unreasonable unavailability of relief personnel to cover short term or unplanned absences.
11.3 To meet operational requirements, in addition to the alternative relief arrangements above, the company may utilise suitably qualified employees from other SLTA operations having regard to local knowledge and any requirements imposed upon Smit Lamnalco Towage (Australia) Pty Ltd by the Regional Harbour Master to ensure the safety of all Port users, Crew and Assets at all times, in accordance with Clause 9.5 of the Agreement.
11.4 50% permanent part time employees are required to work at least 91 days per year, which is half the days worked by a full time employee. For the first eleven calendar months 8 days of work are guaranteed per month, accruing 8 day’s leave per month. For the twelfth month of each year, the guarantee will be reduced to 3 day’s work with 3 day’s accrued leave. This is to bring the full year total to the required 91 days of work.
Pay has been smoothed and will be paid for 7 days per fortnight (1 for 1) over the full 12 month period. Over the year, this equates to 91 days work plus the 91 days accrued leave.
Any days worked above the 8 guaranteed days per month will be paid out (work day + leave day) on top of the fortnightly pay.
75% permanent part time employees are required to work at least 136 days per year, which is three-quarters of the days worked by a full time employee. For the first ten calendar months 11 days of work are guaranteed per month, accruing 11 day’s leave per month. For the eleventh and twelfth month of each year, the guarantee will increase to 13 day’s work with 13 day’s accrued leave. This is to bring the full year total to the required 136 days of work.
Payment is 10.5 days per fortnight (1 for 1) for the first 25 fortnights of the year. For the last fortnight of the year payment is 9.5 days (1 for 1). Over the year, this equates to 136 days work plus 136 days accrued leave.
Any days worked above the guaranteed days per months will be paid out (work day + leave day) on top of your fortnightly pay, or alternatively leave days may be accrued (pro-rata) in line with the Agreement. Leave can be accrued in accordance with Clause 17.11 once 182 days have been worked in a calendar year.
In summary, clause 11 provides that 50% part-time employees are required to work at least 91 days (half the days worked by full-time employees), comprising 8 “guaranteed” days of work per month for the first eleven calendar months and 3 “guaranteed” days of work for the twelfth calendar month. These employees accrue 8 days of leave for the first eleven calendar months and 3 days of leave for the twelfth calendar month. Remuneration for 50% permanent part-time employees is “smoothed” over the course of a year such that employees are paid for 7 days each fortnightly, amounting to 91 days of work and 91 days of accrued leave, each year.
With respect to 75% part-time employees, they are required to work at least 136 days (three-quarters of the days worked by full-time employees), comprising 11 “guaranteed” days of work per month for the first ten calendar months and 13 “guaranteed” days for the eleventh and twelfth calendar months. These employees accrue 11 days of leave for the first ten calendar months and 13 days of leave for the eleventh and twelfth calendar month. Remuneration for 75% permanent part-time employees is “smoothed” over the course of a year such that they are paid 10.5 days per fortnight for the first 25 fortnights each year, and 9.5 days in the remaining fortnights, amounting to 136 days of work and 136 days of accrued leave, each year.
Permanent part-time employees are also entitled to a payment comprised of a work day and a leave day, in additional to their fortnightly pay, for each day worked above the guaranteed days specified for the calendar month. It is also a requirement that permanent-part-time employees are the first order of call to cover any employee’s absence from duty. Where further relief coverage is required, casual employees will be engaged and be paid in accordance with the applicable clause in the Agreement.
Positions of the parties
In summary, the Agreement provides that employees may be engaged by the Company as permanent full-time, permanent part-time and casual employees. While the 2016 Agreements also provide for the engagement of trainees and employees for a specific term / task, these two categories of employment are not, for present purposes, material. Permanent full-time employees are entitled to rostered leave defined as 182 days free of duty each year. It follows that the remaining 183 days of the year are, for full time employees, days of work/duty. Casual employees are engaged in single periods which will not be less than one day duration. “One day” is defined to have the same meaning as a rostered day for a full-time employee. Permanent part-time employees are engaged for an agreed proportion of full-time employment which equates to 91 days per year (for 50% permanent part-time employees) or 136 days per year (for 75% permanent part-time employees). The 91 or 136 days of work are divided into a specified number of “guaranteed” days each calendar month. Each day worked by a part-time employee above the specified number of guaranteed days per month attracts a payment comprised of a work day plus a leave day, in addition to their fortnightly pay.
Permanent part-time employees are entitled to days free of duty for each year of continuous service on a pro-rata basis and accrue one day of leave for each guaranteed day worked. At least 42 days each year will be predictable leave to be agreed with the Company. Casual employees are not entitled to leave but are paid an additional 100% of their daily rate in lieu of leave entitlements. Employees are also entitled to time off in lieu of payment (TOIL) for every hour or part thereof worked in excess of 12 continuous hours. If 8 hours of TOIL are accrued, they are entitled to a day of banked leave.
Further, clause 17.11 of the 2016 Agreement provides that employees who undertake work at the request of the Company on a day of their rostered leave, will be entitled to the applicable daily rate for the day of work, having their rostered leave day recredited, and one day of banked leave, for each day worked. The last sentence of clause 17.11 stipulates that “[this] clause is also applicable for any work required to be undertaken beyond the end of the rostered work period.”
The Unions’ position in relation to a “rostered day” is that its meaning is synonymous with a “shift” and the duration of a “rostered day” varies depending on the type of shifts on which employees are rostered or for which they provide relief coverage. In the Unions’ view, when an employee is rostered on Primary Tugs, a “rostered day” is 12 hours from 0700 to 1900 for the “day” shift and from 1900 to 0700 for the “night” shift. When an employee is rostered on a Secondary Tug, a “rostered day” is 24 hours from 0700 to 0700.
For casual employees who are required to work past the finish time of a shift, the Unions contend that they have worked into the next day/shift and should additionally be paid “another day’s pay and a day’s pay in lieu of leave once they pass 0700 or 1900 into the next shift.” In support of this contention, the Unions argue that casual employees are required under clause 9.1.4 to be engaged for not less than one day duration and that their remuneration which encompasses an additional 100% loading is required by clause 15.3 to be calculated “per day”. In effect, the Unions argue that the Agreements do not provide for an apportionment of the daily pay based on an hourly rate.
In relation to permanent part-time employees, the Unions accepted that the crux of its contention is that once a part-time employee has worked their guaranteed days in the calendar month, any hour worked by a part-time employee thereafter will trigger the operation of the last sentence in clause 17.11 on the basis that the part-time employee has undertaken work “beyond the end of the rostered work period and into their rostered leave” and give rise to the entitlements to payment for another day worked, having the day of leave recredited and a day of banked leave.[11] It was argued that the last sentence of clause 17.11 operates independently, notwithstanding the subject matter dealt with by clause 17.11 concerns work undertaken on a day of rostered leave.
The Company contends that the meaning of a “rostered day” is the 24-hour period from the commencement of a shift and all work performed within the parameters of Appendix 1. The notion of a “day” is not dependent on whether the employee is rostered on a Primary or Secondary Tug. In relation to employees who work past the finish time of a shift, the Company contends that this is merely an “extension of the hours of duty/shift/engagement for a particular reason” as contemplated by Appendix 1 which provides that employees may work beyond 12 hours of continuous duty under certain circumstances, provided that no period of continuous duty exceeds 16 hours. Further, the Company takes the view that both permanent part-time and casual employees are entitled to TOIL (which is paid out by the Company) for each hour worked in excess of 12 continuous hours in addition to their daily rate of pay and this is the additional compensation the Agreements provide for working past the finish time of a shift.
With respect to permanent part-time employees, the Company contends that additional remuneration for working more than the guaranteed days per month is already provided for in Appendix 1 as being a work day plus a leave day in addition to their fortnightly pay. Further, the Company takes the view that the nature of part-time employment is that an employee may be on a guaranteed work day, a rostered leave day and other days which are neither work days nor leave days (referred to by the Company as days to which the employment relationship does not apply). It is contended that while clause 17.11 applies to permanent part-time employees, the only circumstance to which it applies is where a part-time employee agrees to works on a day that is a day of rostered leave. For casual employees, the Company contends that clause 17.11 does not apply because casual employees do not accrue leave entitlements and are compensated by the 100% loading.
Questions for arbitration
In the amended outline of submissions filed by the AMOU (which are adopted by the AIMPE) and the updated Company’s outline of submissions, the parties have agreed on the following questions for arbitration:
“(a) For the purpose of clause 9.1.4 of the Agreements, what is the meaning of ‘one day’?
(b) Where a casual employee works beyond the rostered shift-end, what benefits are they entitled to?
(c) Does clause 17.11 of the Agreements apply to casual employees?
(d) Does clause 17.11 of the Agreements apply to permanent part-time employees?”
In addition, the AMOU, with the agreement of the AIMPE, further proposed the following questions for arbitration:
“(e) Is a Permanent Part Timer considered to be on leave once they complete their obligation of 8 or 3 days per month?
(f) If a Permanent Part Timer is considered to be on leave, what payment are they entitled to once they work more than their obligation of 8 or 3 days per month?”
The Company indicated that it does not agree to the additional questions pressed by the Unions on the basis that they are imprecise and go beyond the initial issues in dispute. The AMOU, however, submitted that the additional questions were raised and set out in its Form F10 application that was served on the Company. In this regard, it is noted that the written submissions of the Company have addressed each of the additional questions and that the Company has conducted its case on an understanding that the additional questions are matters before Commission for determination and oral submissions were advanced in respect of them.[12] On that basis, I determine to deal with all questions pressed by the parties.
The approach to construction of enterprise agreements
The approach and the principles relevant to the task of construing the terms of an enterprise agreement were 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[13]. The relevant passage setting out the principles is well known, and it is not necessary to cite it. More recently, in AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital[14], a Full Bench of the Commission distilled those principles from the Full Court of the Federal Court majority in James Cook University v Ridd[15] as follows:
“The starting point is the ordinary meaning of the words, read as a whole and in context.
A purposive approach is preferred to a narrow or pedantic approach – the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.
Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.
Context may include ideas that gave rise to an expression in a document from which it has been taken.
Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.
A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.
Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”[16]
In an earlier decision in relation to the same dispute[17], the Full Bench said that: “…the common intention of the parties to an agreement is to be discerned from the terms in which they have expressed their agreement, not from their subjective statements about their intentions” citing the decision of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[18] which said:
“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean.”[19]
The Full Bench went on to observe that this principle was applied to the construction of enterprise agreements made under the FW Act in AMWU v Berri Pty Limited,[20] where a Full Bench said: “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.”[21] It is also well-established that the context of a disputed provision is significant. In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine[22] a Full Bench of the Commission set out the explanation of the significance of context, given by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA[23] which emphasised 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[24] and there is always some context to any statement;[25]
· Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;[26]
· 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;[27]
· The phrase used by Mason J in Codelfa “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;[28] 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[29]
The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.
I have applied these principles to determining the matters in dispute in the present case.
Evidence
The Unions
Mr Laurenson is employed by the Company as a Tug Master in the Port of Gladstone. He commenced employment with the Company as a Casual employee on 1 August 2017 and was converted to a 50% permanent part-time employee on 16 March 2020. On a shift, Mr Laurenson is provided with a schedule that outlines the shipping requirements of the day. For example, he said “you may be rostered onto Day 3 and have 3 jobs that require completing, starting at 0730 and finishing at 1830.” In his experience, however, tugs are frequently scheduled to complete jobs that go beyond the end of a shift, and in the course of his employment, he estimates that he has been scheduled to go over shift on around 100 occasions, though he has not kept any accurate records.
Mr Laurenson gave some examples of being scheduled to go over shifts. He said that on 12 May 2020, he was engaged on a day shift (0700 – 1900) but the schedule for the day indicated that his tug was scheduled to perform 4 towage movements, the last of which was scheduled to be back at base at 21:15. He said he raised with the scheduler his concerns about fatigue as he would be required to operate the tug for 14 hours and 15 minutes on that day, and he was told that the scheduler “would look into it”. After completing the first two jobs, Mr Laurenson said he telephoned the schedular and asked whether the schedule had been amended for his shift, and he was informed that it had not. Mr Laurenson said he felt stressed and uncomfortable about having to operate the tug for that duration, so he decided to inform the scheduler that he was feeling unwell and needed to be taken off the shift. Mr Laurenson then went home and said he “was docked a personal day”.
Mr Laurenson further stated that during the week between 8 March and 14 March 2022, he was engaged on a Secondary tug. Mr Laurenson had scheduled a medical appointment in Brisbane on 10 March 2022 and was planning to fly out of Gladstone at 8:05am on that day. On 8 March 2022, Mr Laurenson informed the scheduling manager about his medical appointment, provided a medical certificate and advised that he would need to finish on time at 7:00am on 10 March 2020 so that he could make his flight. He requested that he not be scheduled past the end of his shift. At around 7:00am on 9 March, he received the schedule for 10 March which indicated that his shift was to end at about 8:30am because a job was scheduled. Mr Laurenson said he then called the scheduler to remind them of his medical appointment. Shortly after, Mr Laurenson said he received a call back and was told that he would be taken off the shifts for both 9 March and 10 March, and two sick days were deducted by the Company.
In addition, Mr Laurenson recalled that while he was on a 36-hour standby, his crew was scheduled to complete an outbound gas towage at about 0800 which meant that his shift ended an hour after 0700. Mr Laurenson then went on a required break for 12 hours which meant that he was not able to be scheduled for the night shift that commenced at 1900 that evening.
Mr Laurenson was of the view that the earning capacity for casual and permanent part time employees is primarily determined by the employees’ availability to work. In circumstances where an employee has worked, or been scheduled to work, past their shift, the scheduler would overlook that employee for potential further work. He said that the frequency of being required to work over shift not only impacts his ability to earn, physical and mental wellbeing, but also life outside of work because it makes it difficult to plan appointments or undertake family activity.
Mr O’Dempsey is employed by the Company as a Tug Master in the Port of Gladstone. He commenced employment with the Company as a casual employee on 3 March 2017 and was converted to a 50% Permanent Part Time employee on 16 March 2020. As a 50% Permanent Part Time, he is required to undertake 91 days of duty per year. He said that in 2020–21, he undertook 196 days of duty, and he was required to work past his shifts on 21 days; and in the year of 2021-22, he undertook 190 days of duty, and he was required to work past his shift on 18 days.
Mr O’Dempsey also gave further examples as follows. On 25 June 2020, he was rostered on Day Primary (0700 – 1900) but did not get back to base until 9:15pm after the last towage job for that day. On 27 November 2020, he was rostered on Night Primary (1900 – 0700) and four towage jobs were scheduled. For the last towage job, the tug arrived back at base at 8:50am and the crew did not go ashore until 9:20am. On 2 April 2022, he was rostered on Night Primary and the final towage for that shift was scheduled for a 5:30am steam time and the tug did not arrive back at base until 8:10am and the crew did not go ashore until 8:30am after completing shutdown. On 6 August 2021, he was rostered to a Secondary shift (0700 -0700) and the final towage for that day was scheduled for a 6:00am steam time. After the towage was completed, the tug returned to base, the crew completed the shutdown process and finally went ashore after 8:30am. He said these are the few examples of the many occasions on which he was scheduled to work beyond the end of his shifts.
Mr O’Dempsey said that the regular “scheduling of overtime” can have major impacts on the employees. In this regard, he said that for a casual or permanent part time employee, working over shift can greatly impact the ability to earn because employees may miss out on work that could have been offered had the shift ended on time. He also said that working over shift can impact personal life, for example, making it harder to be able to make appointments, attend family activities or make plans outside of work, and further pose a safety risk, particularly in relation to fatigue.
The Company
Mr Sedgwick was employed by the Company as General Manager from August 2017. In that role, he was responsible for managing the Company’s operations for the Port of Gladstone, overseeing the provision of towage services in a safe and efficient manner, and ensuring that the Company meet its obligations under the current exclusive license with GPC, including by guaranteeing the availability of 10 tugs for towage services on no more than 30 minutes notice, over 24 hours per day and on 365 days each year.
He explained that the current licence came into effect after the commencement of the 2016 Agreements and introduced a range of new KPIs and service requirements, including limitations on the Company’s ability to request changes to the Shipping Schedule. Mr Sedgwick said that if the Company does not meet the service requirements or the KPIs as imposed by GPC, the Company may breach the licence agreement and would be at risk of not being able to obtain the exclusive licence again when the current license expires.
Mr Sedgwick said that the rostering of employees is to ensure that the Company meets its service requirements under the exclusive licence. This particular objective is recognised in clause 2 of the Rosters of Work and Operational Standards. The crew and vessel Rosters that are currently in place was said to date back to approximately February 2017 and were described in clauses 4 to 6 in Appendix 1 of the 2016 Agreements. The roster provides for crews to be allocated to tugs which, for operational and rostering purposes, are separated into either Primary or Secondary tugs, and to be rostered on shifts described as day prime and night prime (which operate on an alternating 12-hour basis) and secondary (which operates on a 24-hour basis).
The current roster is a 28-week roster consisting of employees being rostered on for 14 weeks and having 14 weeks off. During the 14-weeks rostered on, employees spend 6 weeks rostered on secondary tugs. Mr Sedgwick said that full-time employees work in accordance with the roster and have predicted roster rotations and rostered leave. Permanent part-time employees are generally engaged by the Company to provide coverage when full-time employees are on rostered leave and to provide relief for other absences. Permanent part-time employees do not work in accordance with a set roster.
He stated that although a primary shift is rostered for a 12-hour span of duty, crews rostered on a primary tug may occasionally be required to work beyond their shift-end, that is, 700 for night primes or 1900 for day primes, for reasons including shipping delays. Where an employee is required to work beyond their shift-end, he said that often it is only for less than an hour and, in his experience, it will not be for a period of more than 4 hours. Where an employee rostered on a prime tug is required to work beyond their shift-end, this was said to count as continuous service and employees receive additional entitlements when they perform work for more than 12 continuous hours.
Crews rostered on secondary tugs, are rostered for 24 hours starting and finishing at 0700. Mr Sedgwick said that the purpose of the secondary tugs is to provide coverage of towage duties as necessary while primary crews take their mandatory breaks, and to cover towage over the shift change of primary tugs. This is to ensure a 24-hour system of seamless coverage for customers. In order to provide seamless coverage, the crews on secondary tugs are rostered to be available to “turn-to” for work on 30 minutes notice when required. He said, however, that the actual hours of work for secondary crews is not fixed and varies significantly and that the work time of employees on secondary tugs performing towage duties is calculated from their turn-to time at the tug until crew ashore time, with the potential for multiple starts.
Mr Sedgwick stated that the Company is generally notified of the Port’s scheduled movements 36 hours in advance of any given movement (Port Shipping Schedule). The Company does not have the ability to change the Port Shipping Schedule and is therefore required to allocate the scheduled towage and standby duties within the limits of an existing roster. Due to the nature of marine operations including factors such as changes in tides and weather conditions, Mr Sedgwick said the Port Shipping Schedule changes frequently, which means that the required hours of work for employees performing towage duties cannot always be accurately pre-scheduled. In addition to changes in the Port Shipping Schedule, the requirement for work for a particular crew may also change during a shift as a result of circumstances, such as the fatigue of a crew, breakdowns and unexpected maintenance, employees’ illnesses or where the vessel is subject to a mandatory survey or inspection.
In light of these circumstances, Mr Sedgwick said that the Company, in order to meet the requirements of its license, requires flexibility in the availability of crews. This flexibility includes having secondary tugs with crews being available to respond to calls for work when required, rather than being assigned fixed hours of work; requiring crews to work beyond their assigned shift-end within the parameters in clause 7 of Appendix 1 to the Agreements; engaging relief crew members, comprising permanent part-time, fixed-term and casual employees, to cover crew members’ absences, rostered leave or fatigue. Where necessary, the Company may also recall permanent full-time employees from their days free of duty.
Further, Mr Sedgwick said that there are also occasions where employees will be required to work beyond the scheduled shift-end. In his experience, when an employee is required to work beyond their shift-end time to meet shipping requirements, they take breaks prescribed in the Agreements and accrue TOIL, where they work in excess of 12 hours of continuous duty.
In relation to leave and other entitlements, Mr Sedgwick explained:
Full-time employees are entitled under clause 17 of the Agreements to 182 days free of duty each year, which is more than the entitlement in the Marine Towage Award 2020.
Permanent employees receive an annual salary under the Agreements, which is paid in equal instalments over a year, even while an employee is off duty.
Permanent part-time employees are rostered for an agreed proportion of full-time employment and receive days free of duty and entitlements on a pro-rata basis.
Full-time employees work the full 28-week roster arrangement and have advance notice of their duty periods and periods of rostered leave. Part-time employees are rostered for duty in accordance with operational requirements, which may vary from month to month. Part time employees are guaranteed a certain number of days free of duty per year, but these days free of duty are not always known in advance because they do not work a fixed roster.
Casual employees are paid a daily rate of pay which is 1/365 of the annual salary for permanent full-time employees, plus 100% loading in recognition of not being entitled to leave, including “rostered leave” or prescribed days free of duty.
The Masters Agreement and Engineers Agreement are to be “read in conjunction with the Marine Towage Award 2010, as varied, but in the event of any inconsistency between [the Agreements] and the Award, [the Agreements] will prevail” (clause 2.4).
The nominal expiry date of the Agreements was 31 December 2020. On 3 June 2022, the parties reached in principle agreement on a rollover of the Masters Agreement and Engineers Agreement. The new agreements are currently going through the approval process. No changes to the relevant clauses were made.
Jurisdiction
The proceedings arise under the Dispute Resolution provisions at clause 8 of the Agreements, and pursuant to s. 739 of the FW Act.
The proceedings have progressed to clause 8.2.2 of the Agreements which allows the Commission to arbitrate the disputes. There is a commonality in the disputes which enables them to be heard together by the Commission.
10.Resolution of the proceedings requires the interpretation of the Agreements. The approach to interpretation of enterprise agreements, including consistent with Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [114], (2017) 268 IR 285 at 310, is not in dispute.
The disputes
11.The disputes brought by the unions involve the same issues relating to the hours of engagement of casual employees, and the entitlements for casual and permanent part- time employees at Gladstone where they may work beyond a shift finish time.
12.Permanent part-time employees and casual employees are ordinarily engaged to provide relief for full time employees.
13.The current roster arrangements consist of employees rotating over a 28-week roster cycle through allocation to Primary Tugs and Secondary Tugs.
14.Full-time employees are entitled to 182 days free of duty within their roster per year of continuous service.
[1] Statement of Agreed Facts filed by the parties on 29 July 2022.
[2] Exhibit AMOU-1.
[3] Exhibit AMOU-2.
[4] Exhibit SLTA-1.
[5] Matters numbered C2020/9259, C2020/9260 and C2022/219.
[6] AMOU and AIMPE v Smit Lamnalco Towage (Australia) Pty Ltd[2023] FWC 1258.
[7] [2023] FWC 1526.
[8] Transcript of Proceeding at PN338-340.
[9] Clause 2.3 of the 2016 Agreements.
[10] Clause 2.4 of the 2016 Agreements.
[11] Transcript of Proceedings at PN135.
[12] Transcript of Hearing at PN347.
[13] [2017] FWCFB 3005 at [114].
[14] [2022] FWCFB [7].
[15] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]
[16] Op. cit. at [29].
[17] AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital [2021] FWCFB 6044
[18] [2004] HCA 52, 219 CLR 165.
[19] Ibid at [40].
[20] [2017] FWCFB 3005.
[21] Ibid at [114].
[22] [2017] FWCFB 4487.
[23] [2014] NSWCA 184 at [71] – [85].
[24] Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.
[25] Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].
[26] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
[27] 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)
[28] 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].
[29] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].
[30] Exhibit SLTA1 – Peter Sedgwick’s witness statement: Annexure PS-1 at pp. 15-16.
[31] Reference to clauses 9, 13.5, 15.3, 16.3, 17.3, 21.1 of the 2016 Agreement.
[32] Section 11 of the Fair Work Act 2009 provides that “[in] this part, employee and employer have their plain ordinary meanings.”
[33] Transcript of Proceedings at PN275-279, 316-320.
[34] Transcript of Proceedings at PN115-120.
[35] Transcript of Proceedings at PN199.
[36] Transcript of Proceedings at PN210.
[37] [2023] FWC 1526.
[38] [2023] FWC 1526 at [191].
[39] Clause 2.4 of the Agreements.
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