[2018] FWC 1755

FAIR WORK COMMISSION

DECISION

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

The Australian Maritime Officers' Union
v
Svitzer Australia Pty Ltd
(C2017/4185) and (C2017/6873)

The Australian Institute of Marine and Power Engineers
v
Svitzer Australia Pty Ltd
(C2017/6875)

Svitzer Australia Pty Ltd
v
The Australian Maritime Officers' Union and The Australian Institute of Marine and Power Engineers
(C2018/137)

SVITZER AUSTRALIA PTY LIMITED NATIONAL TOWAGE ENTERPRISE AGREEMENT 2016
[AE417722]

COMMISSIONER HAMPTON

ADELAIDE, 20 APRIL 2018

Dispute about any matters arising under the enterprise agreement – scheduled working hours – whether work beyond 12 hours prevented by the agreement in the normal course – relationship between agreement and port operating procedures in dispute – principles discussed – provisions not ambiguous when considered in context and read as a whole - common objective meaning ascertained and to be applied – determination made - issue to be further resolved in the context of discussions about relevant port operating procedures, and potentially arbitration, in light of the Commission’s decision – liberty granted to apply in relation to associated dispute notifications.

1. The dispute

[1] This decision concerns the determination of a dispute about the proper application of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (the 2016 EA). That instrument is an enterprise agreement approved 1 by the Commission under the Fair Work Act 2009 (the FW Act). The matter is before the Commission principally as a result of an application lodged under s.739 of the FW Act by the Australia Maritime Officers’ Union (AMOU). The AMOU, the Australian Institute of Marine and Power Engineers (AIMPE) and Svitzer Australia Pty Ltd (Svitzer) subsequently lodged additional applications relating to the original matter. Each relies upon clause 10 Continuity of Operations and Dispute Resolution Procedure of the 2016 EA.

[2] These matters involve a dispute about the application of the 2016 EA, and in particular, the operation of Part 5 - Hours of Work and Related Matters. This has arisen in the context of discussions around the Port Operations Procedures (POPs) and more recently, competing proposed POPs have been advanced and disputed. Although not an applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 2 is also covered by the enterprise agreement and is a party to these matters.

[3] The Commission conducted a conference with the parties on 18 August 2017 and subsequently issued a Statement and Recommendations of the same date. Following the lodgment of further disputes related to proposed POPs, two additional conferences were held on 13 November 2017 and 9 January 2018. At the final conference it was the mutual view of all of the parties that the dispute about the application of the 2016 EA be listed for arbitration and determined by the Commission. That dispute is properly before the Commission for arbitration as it is a matter arising from the enterprise agreement and clause 10 empowers such matters to be determined by the Commission in the circumstances evident here.

[4] The specific disputes 3 relating to the competing POPs proposals are also before the Commission as a result of the notification of the disputes under the terms of the 2016 EA. However, these have not (yet) been referred for arbitration, and whilst setting some of the context for this decision, are not the subject of this determination.4

[5] By directions dated 12 January 2018, the parties were requested to agree on a suitable question for determination by the Commission by no later than 19 January 2018. The parties were unable to agree a question; instead Svitzer and the Unions each proposed different questions to be answered.

[6] The AMOU, AIMPE and CFMMEU proposed the following question for determination:

“Does the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 allow the employer to schedule hours of work in excess of 12 hours each day?”

[7] Svitzer Australia proposed the following question:

“Does the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 allow:

• (under the Port Operating Procedures) the last towage job in a period of continuous duty, to be scheduled on or before the 11th hour and 45th minute after the period has commenced and

• for jobs that commenced before the 12^th hour must be completed by the current on duty crew.”

[8] The dispute about the appropriate question is a reflection of the difference in approach to the matter taken by the respective parties. This includes a difference of view about the role of the POPs in specifying the last towage job, the impact of the 2016 EA in the context of Port Adelaide, and in addition, disputes about the appropriateness of the various POPs proposals; the latter being matters not (yet) before the Commission for determination. Further, as will become clear from the positions advanced in this matter, neither proposed question fully captures the scope of the present disputed application of the 2016 EA.

[9] In order to arrive at the appropriate determination of this present dispute it is necessary to explore the terms of the 2016 EA and the competing contentions of the parties. It is sufficient for present purposes to state that the dispute is centrally concerned with whether the 2016 EA permits a POPs at Port Adelaide to schedule the last towage job in a shift at a time that will require the employees concerned to work in excess of 12 hours from the commencement of the shift. This requires consideration of the terms of the enterprise agreement, and in particular the import of subclause 41.2.4 which deals with scheduled hours, regular duty requirements and off-duty periods, and the role of the POPs in that context.

2. The relevant terms of the 2016 Enterprise Agreement

[10] Without overlooking the provisions of the 2016 EA more generally, the following provisions are directly relevant for present purposes:

“5. Operation and Relationship with other Industrial Instruments

5.1 Interaction with Award

5.1.1 The Award and its terms have no effect in relation to work described in clause 4.1.3 unless otherwise provided in this Agreement.

… …

5.3 Interaction with POPs

5.3.1 The POPs are incorporated as a term of this Agreement for the particular Port concerned. However, this Agreement prevails over applicable Port Operating Procedures, which have no effect to the extent of any inconsistency with any term of this Agreement.”

… …

“PART 2 - CONSULTATION AND DISPUTE RESOLUTION

10. Continuity of Operations and Dispute Resolution Procedure

10.1 The following procedure shall apply to settle disputes about any matters arising under this Agreement and in relation to the NES.

10.2 The parties to a dispute must genuinely attempt to resolve the dispute at the workplace level as follows.

10.2.1 As soon as practicable after a dispute arises an employee must speak to his or her immediate supervisor or manager and give the supervisor or manager an opportunity to resolve the dispute.

10.2.2 If the dispute remains unresolved, the employee may request a representative, which may be a Union delegate or officer, to progress the matter with the immediate supervisor or manager.

10.2.3 Where the delegate or representative of the Union on the tug becomes aware of any such matter he or she may take it up with the local manager.

10.2.4 In the case of a matter arising at federal level, the employee's representative or relevant federal official of the union concerned and the appropriate regional or national company representative concerned shall discuss the matter and endeavour to resolve it.

10.2.5 If the matter cannot be settled it shall be referred to FWC for conciliation and/or arbitration.

10.3 Dispute Settlements -The above steps shall not preclude the right of any party to refer a dispute to the Fair Work Commission. In these circumstances, FWC shall retain its discretion to either refer the parties back to a continuation of this procedure (where FWC considers that course as appropriate), or conduct conciliation proceedings and where the FWC cannot settle the matter by conciliation, determine the matter.

10.4 Work shall continue pending determination of any matter or dispute in accordance with the above procedures except in circumstances where an employee holds a reasonable concern about an imminent risk to his or her health or safety. Subject to relevant provisions of work health and safety law, even if the employee has a reasonable concern about an imminent risk to his or her health or safety, the employee must not unreasonably fail to comply with a direction by Svitzer to perform other available work that is safe and appropriate for the employee to perform. The fact that the employee continues to work will not prejudice the employee or Svitzer.

10.5 Continuity of Operations

Pending the completion of the procedure set out in this clause, work shall continue without interruption. No party shall engage in unlawful action and pending the resolution of the dispute the status quo shall apply. The rights of individuals or parties under the Act shall not be prejudiced by the fact that work has continued under this process normally and without interruption.”

… …

“PART 5 - HOURS OF WORK AND RELATED MATTERS

41. Hours of Work, Rosters and Meals

41.1 There will be a set of Port Operating Procedures in each port. Port Operating Procedures must be reviewed at least annually. Svitzer will prepare and distribute to the Unions a report on the status of the Port Operating Procedures by 31 March. Subject to clause 41.4, the annual review must be completed by 30 April. Following the review Svitzer will prepare another status report by 14 May.

41.2 The Port Operating Procedures (when made or varied) will set out details in respect of the following subject matter, which provide a foundation for the guidance to the parties in developing Port Operating Procedures:

41.2.1 Port rosters

(i) Towage operations are carried out over 24 hours per day on every day of the year;

(ii) Rosters will as far as practicable include the detail of work days, the component of predictable leave days, and the number of crews on duty and on leave required to man the roster;

(iii) Off-duty periods for permanent full-time employees:

A. leave for permanent full-time employees should to the greatest practical extent be predictable;

B. leave in running arrangements may be implemented where it is impracticable to predict leave periods to their full extent or (notwithstanding clause 15.2.1) when an employee’s employment is converted to full-time employment under clause 15.3.4.

(iv) Off-duty periods for permanent part-time employees:

Permanent full-time employees are the main source of crewing the port roster and permanent part-time employees supplement the roster. Where a port cannot support a roster for permanent part-time employees, off-duty periods will be programmed as follows:

A. Permanent part-time employees may nominate to take seven (7) days free of duty each month (non-cumulative); or

B. Permanent part-time employees instead may make an annual election to take five (5) days free of duty each month (non-cumulative) PLUS one off-duty period of 25 days, amounting to a “30 day block-out duty free period” per calendar year. Where agreement between Svitzer and the employee is not possible on the programming of the “30 day block-out duty free period”:

• the employee must give the Company 3 months’ notice of their requested nominated “30 day block-out duty free period”; and

• Svitzer must not unreasonably refuse the employee’s request.

Permanent part-time employees must otherwise be available for relief work duty in accordance with clause 41.2.7(i)A.

41.2.2 Work orders:

(i) should include details of the procedures to be used for the giving, receipt and acknowledgement of work orders;

(ii) SMS messages may be used to communicate orders for the purpose of minimising off-duty disruption to employees;

(iii) Employees should not be contacted unnecessarily during breaks.

(iv) Allocation of work.

41.2.3 Availability

The objective of any duty roster is to ensure that sufficient employees are available at any time to satisfy customers’ requirements on no more than 2 hours’ notice, unless the Port Operating Procedures specify otherwise to meet those requirements.

41.2.4 Hours of work, regular duty requirements and off-duty periods

(i) Scheduled hours of work should not exceed 12 hours. That is:

A. under the Port Operating Procedures, the last towage job in a period of continuous duty must not be scheduled more than 11 hours and 45 minutes after that period has commenced; and

B. jobs commenced prior to the 12^th hour shall be completed.

The parameters for scheduling the last job in the period must be set out in the Port Operating Procedures.

(ii) If an employee is required to be on continuous duty for 14 hours or more, the employee must be given a rest break of 10 hours at the cessation of that period of duty before the commencement of the next period of duty.

(iii) A period of continuous duty must not exceed 16 hours.

(iv) A nominated rest break of 6 hours or more breaks the continuity of a period of duty.

(v) Employees will be entitled to a meal break on completion of 5 hours’ 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.

41.2.5 Employees must not work more than 14 days in excess of the number of days a full-time employee is required to work in a calendar year under the operating roster in the port (Maximum Days). For the purpose of this clause 41.2.5, the following days will be disregarded in calculating the Maximum Days:

• Work days when the employee does not perform ship-assist operations on a tug boat in any port (harbour towage);

• days when an employee attends shoreside meetings;

• Outside Work days;

• days attending emergencies, and

• days undertaking docking work.

41.2.6 The parties will keep fatigue management and the operation of the roster under review in each port, through the local Work Health and Safety committee, so as to ensure the proper and efficient management of fatigue. Because of the unpredictability of vessel movements the strict application of the STCW Code as above may not always be possible, however, an employee must be provided with minimum aggregate rest of 77 hours in 7 days consistently with Marine Orders Part 28, section 4.

41.2.7 Relief arrangements to be utilised in the Port and casual usage.

(i) Relief work requirements to supplement the roster will usually be covered:

A. first call – permanent part-time employees (other than during an off-duty period pursuant to clause 41.2.1(iv), or when they are otherwise unavailable under this Agreement);

B. second call – casual employees;

C. third call - permanent full-time employees on rostered leave.

(ii) Permanent full-time employees on rostered leave are not obliged to be available for relief work, however subject to clause 41.2.5, every employee and the Unions will ensure that, under normal circumstances as described in the Port Operating Procedures, the port operations are not compromised by unavailability of relief personnel to cover short term or unplanned absences.

(iii) Casual usage:

The incidence of relief days, measured over a representative period (say 6 months), shall be reviewed in conjunction with the annual review of the Port Operating Procedures.

41.2.8 Other issues of an operational nature, specific to the Port.

Port Operating Procedures should not prevent or unreasonably restrict Svitzer’s ability to meet customer and port requirements on Saturdays, Sundays or Public Holidays.

41.3 Port Operating Procedures must be signed by the Port Manager and authorised union representatives.

41.4 Changes to Port Operating Procedures may be made by agreement following consultation, or as follows:

(i) Where Svitzer is proposing the change it will notify the Union in writing of the proposed changes and where the Union is proposing the change it will likewise notify Svitzer in writing;

(ii) The parties will commence consultation at a local level about the matters set out above within seven days of such notification.

(iii) Consultation at local level will continue with a view to reaching consensus about the changes, and then at national level if the matter cannot be resolved locally.

(iv) In the event that the parties cannot achieve a consensus within a reasonable timeframe, the party proposing the change may give 28 days notice requiring that the change be implemented.

(v) During the notice period, either party may make application in accordance with the Dispute Resolution Procedure and if such application is made, the status quo will remain until the matter is settled.

41.5 A copy of this Agreement and the Port Operating Procedures will be kept in a convenient location at the Port.

41.6 During the term of this Agreement, the Company and the Unions will meet to develop a Port Operating Procedures template.”

3. The positions of the parties

3.1 The AMOU and AIMPE

[11] The AMOU and AIMPE (the Unions) contend that, to an extent, the words used in subclause 41.2.4 should be accorded their plain and ordinary meaning. That is, shifts are not to be scheduled for more than 12 hour. This means that no work is to be scheduled that would ordinarily exceed 12 hours, accepting that there may be occasions where the exceptions to the provision apply. Those exceptions being as a result of delays, emergencies or sea conditions so that a towage job that has been commenced can be completed, outside of the 12 hour window if required.

[12] In the alternative, the Unions submit that the relevant provisions do create some ambiguity and that, as a result, evidence of surrounding circumstances is admissible to confirm the intended meaning as set out above.

[13] The basis for the alternative proposition can be summarised as follows:

• Subclause 41.2.4(i) should be understood to have its plain and ordinary meaning. That is, that “scheduled hours of work should not exceed 12 hours” and that “the parameters for scheduling the last job in the period must be set out in the Port Operating Procedures”;

• Ambiguity is, however, created by the confused wording of subclauses 41.2.4(i)A and B;

• Subclauses 41.2.4(i)A and B are incompatible and do not operate soundly when read together. That is, subclause 41.2.4(i)B states that jobs commenced prior to the 12^th hour shall be completed rather than during the 12^th hour. A towage job cannot be scheduled at 11 hours and 45 minutes under subclause 41.2.4(i)A and also be a job commenced prior to the 12^th hour (i.e. a job commenced in the first 11 hours of the shift);

• Subclauses 41.2.4(i)A and B are descriptive rather than prescriptive. This is confirmed by the fact that the POPs must set out the commencement time for the last towage job (subclause 41.2.4(i)) and this would not be necessary if subclauses A and B were prescriptive. In particular, subclause 41.2.4(i)B is intended (only) to ensure that jobs started would be completed and that this is consistent with the intent of the 2016 EA to be flexible and to deal with any unforeseen circumstances; and

• Subclauses 41.2.4(ii), (iii), (iv) and (v) set out what happens in the event that 12 hours is exceeded on a shift, however they do not function so as to enable more than 12 hours of work to be scheduled.

[14] The Unions also contend that as a general rule, the reference to scheduled hours within the 2016 EA includes the hours necessary to have the tug concerned return to the Port after the completion of the towage job. In relation to the expectation created by subclause 41.2.4(i)A about the scheduling of the last towage job in a shift, the Unions contend that this refers to the scheduled completion of the job prior to 11 hours and 45 minutes into the 12 hour shift. Completion for this purpose is taken to be when the tow line(s) is dropped off the vessel being towed (line down).

[15] The Unions submit that the relevant surrounding circumstances include the stated intention to reduce actual working hours and shift lengths in the Ports when the provisions of the 2013 enterprise agreement (which was in the same terms as the 2016 EA) were approved.

[16] I note that the Unions initially contended that any ambiguity should be resolved by the Commission exercising powers under s.217 of the FW Act to vary the instrument. However, during oral submissions, the Unions accepted that the matter before the Commission was the s.739 application and that it was presently the role of the Commission to determine the objective meaning of the 2016 EA without purporting to vary the agreement. 5

[17] The Unions also relied upon what it contends to be the views of employees and their rejection of POPs recently proposed by Svitzer on the basis of the extensive and long hours involved. In addition, the Unions referred to the relevant health and safety legislation and to Safe Work Australia (SWA) fatigue guidelines which recommends that shifts are limited to 12 hours including overtime, or to 8 hours if they are night shifts and/or the work is demanding, monotonous, dangerous and/or safety critical.

[18] The AMOU and AIMPE relied upon the witness statements of Mr Marcus Paparella, Tug Boat Master, and until very recently, also AMOU Delegate in Port Adelaide employed by Svitzer, and Mr Gregory Yates, Senior National Organiser for the AIMPE. That evidence included what was said to be the intention of the enterprise agreement, the negotiations leading to the present provisions, and the relevant surrounding circumstances.

[19] The CFMMEU did not file materials or participate in the hearing of this matter. During the preliminary proceedings, the CFMMEU supported the positions advanced by the other Unions.

3.2 Svitzer Australia Pty Ltd

[20] Svitzer contends that the plain and ordinary meaning should be attributed to the word “should” in subclause 41.2.4 and that the word “should” cannot be replaced or misinterpreted as meaning “must”. It submits that subclause 41.2.4 does not result in there being a prohibition on port-specific POPs containing provisions that would result in jobs being scheduled at times that will result in work finishing more than 12 hours after the scheduled commencement time.

[21] The basis of Svitzer’s contentions may be summarised as follows:

• Clause 41.2 should be read as a whole in the context of the 2016 EA. The words “must” and “should” are used within the clause, in particular in subclause 41.2.2(i) the word “must” is used twice, indicating an intentional distinction between the use of “should” and “must” in subclause 41.2.4;

• Subclause 41.2.4 cannot be interpreted in the way the Unions have proposed without reading “should” to mean “must”. In this way, the Union wish to rewrite the 2016 EA to achieve what it says is a fair outcome;

• Subclauses 41.2.4(i)A and B are compatible with one another and support the fact that it is possible to schedule jobs to commence in the last hour of a 12 hour shift; and

• The operating environment of Svitzer is such that they are required to operate 24 hours a day, across seven days per week. The interpretation of the 2016 EA by the Unions would have the effect of limiting the number of hours Svitzer could service the Port of Adelaide to 22 hours out of every 24. This, it contends, would never have been, and was not, agreed as the intention of the 2016 EA.

[22] Svitzer also contends that the Unions’ primary complaint, that it regularly schedules the last towage job at times that do not permit the tug to return to the wharf within 12 hours of commencement of the shift, suggests that the proper application of the 2016 EA is that hours should not ordinarily exceed 12. 6 This is to be contrasted with the Unions’ proposed outcome, which would prevent any work (other than certain contingencies) being rostered outside of that period.

[23] As a result, Svitzer contends that the 2016 EA permits the POPs document to determine the last steaming time of the tug within the 12 hour shift, rather than the 2016 EA. Further, Svitzer contends that this means that there is no prohibition upon a port-specific POPs containing provisions that will result in work being completed more than 12 hours after the scheduled commencement time of the shift.

[24] In summary, Svitzer’s position is that the plain and ordinary meaning of the provisions, when read as a whole, is that the 2016 EA establishes a guideline that scheduled hours of work should not exceed 12 hours. However, this is not a binding obligation and the actual arrangements providing for the shift length are to be determined within the relevant POPs. Those POPs though must comply with the mandatory provisions of subclause 41.2.4 (where “must” is used by the provision) including:

• The last towage job must not be scheduled to commence (line up to the ship) more than 11 hours and 45 minutes after a continuous duty period has commenced;

• If an employee is required to be on continuous duty for 14 hours or more, the employee must be given a rest break of 10 hours at the cessation of that period of duty before the commencement of the next period of duty;

• A period of continuous duty must not exceed 16 hours;

• A nominated rest break of 6 hours or more breaks the continuity of a period of duty; and

• Employees will be entitled to a meal break upon the completion of 5 hours’ 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.

[25] Svitzer also contends that if there was any ambiguity in the provisions, the relevant extrinsic material is consistent with the notion that the above was the common objective intention of the 2016 EA.

[26] Svitzer relied upon the evidence of Mr Albert Umansky, Group Manager, Employee Relations, GrainCorp Operations Ltd (formerly Svitzer’s Manager of Industrial Relations) and Ms Cheree Figg, Svitzer’s Port Manager, South Australian Ports Operations. That evidence included some of the practical context in which the 2016 EA operates in Port Adelaide and the history of provisions leading to this point. This included the POPs, made as a result of the 2013 enterprise agreements, which was relevantly in the same terms as the present 2016 EA, and, in effect, permitted the scheduling of work beyond 12 hours.

4 The approach to be applied to determining the dispute

[27] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited⁷ (AMWU v Berri) in the following terms:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as 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 aide 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.

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.”

[28] This is a non-exhaustive statement of the principles to be adopted⁸ and I have applied this approach in determining this dispute.

[29] In Geo A Bond & Co Ltd (In Liq) v McKenzie,⁹ (Geo A Bond) Street J said:

"...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."

[30] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:

“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”¹⁰

[31] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd¹¹ in the following terms:

“6. No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.

… …

8. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. 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, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.” 12

[32] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia¹³ in the following terms:

“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’”

[33] All of the above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention based upon the language and terms of the 2016 EA, when read as a whole, and considered having regard to its context and purpose.

5. Observations on the evidence

[34] Mr Paparella has very significant industry experience including as a Tug Boat Master for a period of 28 years; with 20 of those within the operations at Port Adelaide. He has been a delegate of the AMOU for some eight years and has been heavily involved in the most recent POPs discussions. However, Mr Paparella was not directly involved in the negotiations leading to the 2013 or 2016 enterprise agreements.

[35] Mr Yates, as Senior National Organiser for AIMPE, has over 18 years’ experience with AIMPE and was directly involved in the 2013 and 2016 enterprise agreement negotiations, amongst many other matters concerning Svitzer.

[36] Mr Umansky has extensive industrial relations experience and although no longer working for Svitzer, he was also directly involved in those negotiations at the time in his role as the Manager of Industrial Relations at Svitzer.

[37] Ms Figg has significant first-hand knowledge of the Port Adelaide operations, having worked for Svitzer since 2007 and as Port Manager from at least 2014. Ms Figg was not directly involved in the enterprise agreement negotiations but is heavily involved in the most recent POPs discussions.

[38] I found that each of the witnesses gave their evidence honestly and openly and with a view to assisting the Commission to make a determination of this matter. Some of that evidence represented the witness’s personal (subjective) understanding about the intended operation of the 2016 EA. As advised to the parties during the hearing, I have admitted that evidence on the basis that the utility of that material would be considered in light of the principles summarised in the relevant authorities of the Commission. These principles include the notions that any evidence of surrounding circumstances is not admissible to contradict language which has a plain meaning, and in effect, that evidence of solely subjective understanding is of no assistance in matters of this kind. This has meant that I have not relied upon some of the evidence.

[39] For example, the evidence provided by Ms Figg about the operations of the Port and the considerations flowing from Svitzer’s commercial arrangements was objective and useful to establishing some of the context for the disputed interpretation. Mr Paparella’s evidence about the nature of the work and the operational issues was also credible and of assistance. However, both of their views about the intended operation of the 2016 EA were largely based upon advice and statements provided by others and did not inform the common objective intent.

[40] The findings that follow regarding the factual context for this matter have also been informed by these considerations and the degree to which the evidence concerned was direct and relevant to the issues to be determined by the Commission.

6. The broad factual context

6.1 The operations of Svitzer at Port Adelaide

[41] Svitzer is a major marine towage operator and employer of maritime crews in Australia. It provides towage services to the shipping industry in 27 Australian ports, including major capital city ports and export ports.

[42] The 2016 EA covers and applies to the tug boat crews engaged in at least 17 different Ports that are set out in Schedule 1 of the enterprise agreement, including the Port of Adelaide. It is common ground that each of those Ports has different characteristics including the number of tugs, the physical layout of the Ports and the volume and nature of shipping involved. Further, there is a wide range of steaming times between the tug berths (bases) and the point at which towage jobs will commence and conclude. This may be as little as 15 minutes, or in some limited cases, a matter of hours. There are also outports which may be serviced from the major ports.

[43] Each of the Ports covered by the 2016 EA have their own discrete POPs document operating under the terms of the enterprise agreement. Indeed, POPs have existed within the tug industry for many years either as a schedule to the former Tug Boat Award 1982, as part of an enterprise agreement or, as in Svitzer’s enterprise agreements, incorporated as a term of the enterprise agreement but not set out within the agreement itself.

[44] The Port of Adelaide covers three facilities; namely, the Inner Harbour (where Svitzer has its tug base), the Outer Harbour, and Osborne, which is between the two harbours. Average steaming time for a tug between the Outer Harbour and the Inner Harbour is approximately 50 minutes. The length of a towage job depends upon a range of factors including the location, the vessel type and size, pilot preference and sea conditions. At present, the tugs must generally be returned to the tug base at the conclusion of the job; however, arrangements are being contemplated (but not confirmed) that would permit the tugs to be berthed at Outer Harbour or at other sites along the Port River.

[45] The crew of a tug operating in Port Adelaide comprises employees acting in their capacity as Master, Engineer and Ratings.

[46] The tugs (crews) at Port Adelaide are not considered to be “captive”. This means that the crews do not generally attend for work at the Port other than to undertake towage jobs or other specified work including maintenance work. In effect, the employees are on call for the period of their shift and will be notified of their required initial attendance. The AM shift commences at 01:00 hours and the PM shifts commence at 13:30 hours. Employees are given two hours’ notice to attend the Port when they are on an AM shift and four hours’ notice when on a PM shift, although often employees are asked to attend with shorter notice due to the nature of the work and do so.

[47] In August 2016, an organisational restructure occurred in South Australia regarding the number of tugs required at each Port. Prior to this restructure, Port Adelaide had 4 tugs, which covered the following:

• 2 tugs are required 24 hours a day, 7 days a week on 2 hours’ notice by the Port Authority at Port Adelaide;

• A third tug is required on an as needs basis on 24 hours’ notice; and

• A fourth tug was required to assist in Port Giles and Ardrossan if a two-tug berthing was scheduled. 14

[48] The restructure saw Port Giles and Ardrossan have one tug dedicated to service both Ports (based in Ardrossan), with a second tug available from Adelaide if required. As a result, Port Adelaide now has 3 tugs, 2 tugs on 24 hours 7 days a week on 2 hour call out, and third tug booked the day before. 15

[49] The evidence of Mr Paparella was that prior to the restructure there were occasions where employees would be required to work in excess of 12 hours, although that was “manageable” and did not occur as a matter of course. However, after the restructure, there was an increase in the number of shifts where employees would be working in excess of 12 hours and that it created concerns around fatigue management. This was attributed by Mr Paparella to the fact that there was no longer a “relief” crew to cover the middle of the day. 16

[50] The weight of the evidence is that the restructure and associated redundancies has increased the extent to which the tug crews are completing shifts beyond a 12 hour period from the commencement of their shift. That is, work arrangements under the POPs since 2013 have involved some scheduled work beyond the 12 hour period. However, this has now changed from something in the order of 4 out of each 14 day shift swing, to something in the order of 45 to 50 percent of the days involved. 17

[51] Activities by the crew are generally required upon arrival at the Port and before commencing steaming to the towage jobs in question. Further, activities are also generally required once the tug boat returns to the wharf at the end of a shift, before employees can leave for home. These (start-up and shut-down) activities, and other duties such as maintenance and various other functions, extend the work time beyond the line up and line down times usually used to signal the start and finish of a towage job.

[52] The 2016 EA and the Port licence between Svitzer and the Flinders Port South Australia (the Port Authority) require a minimum 2 hour notice to be given to crew for changes to the schedule. However, under current arrangements, crew cannot be contacted after 5:00 pm the night before regarding any changes to scheduling. Therefore, a gap can occur between midnight and 2:00 am. 18

[53] A gap may also arise in circumstances where a crew can be called in for an earlier job, because the re-scheduling was known further in advance, but as the crew is required to start early, they will be required to finish early due to the restriction on scheduling. This will then create a gap for the next crew to start as the next crew cannot start before midnight.

[54] For actual work requirements to be set, Svitzer receives daily orders from the Port Authority. The Customer Service Officers schedule the work in line with those orders and the POPs. The orders for work are then sent by text message to crew to inform them of when they will be required.

[55] If a job is ordered by the Port Authority during the gap time, Svitzer needs to make a request to the Port Authority to adjust jobs to another time. This is a regular scenario and often the job time cannot be changed so that Svitzer then need to bring the other rostered crew in early, which results in a gap later in the day, or bring in extra crew.

[56] The Port Authority does not want gaps in its services and discussions between Svitzer and the Port Authority have occurred, in conjunction with the POPs negotiations, about arrangements that would assist to maintain the present Port (operating) licence. 19

[57] The operations of Svitzer are also subject to various maritime and work health and safety obligations, which impact upon appropriate working hours and arrangements and are referenced in the enterprise agreement to some degree.

6.2 The history of the agreement provisions and the negotiations leading to the 2016 Enterprise Agreement

[58] The work in question has been covered by various awards including the Tug Boat Award 1982 and more recently, the Martine Towage Award 2010. However, for many years the work has in practice been governed by industrial or enterprise agreements and POPs, and none of the parties have contended that the terms of the awards are presently relevant to this particular matter.

[59] The present agreement has evolved from earlier arrangements involving the Unions (including the Maritime Union of Australia) and Svitzer predecessor companies, Howard Smiths and Adsteam, where local registered industrial agreements would cover a Port or region and detail the POPs.

[60] When the major consolidation of Ports occurred under the Adsteam company banner, the parties did not seek to combine twenty plus POPs into a single national instrument. Rather, a practice has evolved that involves the POPs operating at the Port level and being given formal status as a subsidiary industrial arrangement under the terms of one or more enterprise agreements. 20

[61] The more recent history of the present provision is that a term providing for hours of work and related arrangements in a broadly similar form to the present 2016 EA was found in each of the three enterprise agreements 21 operating from 2010 (the 2010 agreements).

[62] The relevant provision in the 2010 agreements read as follows:

“40.2.4 Hours of Work, Regular Duty Requirements and Off Duty Periods

… …

(iii) Scheduled hours of work should ordinarily not exceed 12 hours.

(iv) If an employee is required to be on continuous duty for 14 hours of more, the employee must be given a rest break of 10 hours at the cessation of that period of duty before the commencement of the next period of duty.

(v) A period of continuous duty must not exceed 16 hours.

(vi) A nominated rest break of 6 hours or more breaks the continuity of a period of duty.

… …” 22

[63] Although the specific provisions were significantly different, the general relationship between the POPs and the enterprise agreements in the 2010 instruments was broadly the same as that set out in clause 5.3 of the present 2016 EA.

[64] There was considerable debate and redrafting of the provision in the context of negotiations leading to the 2013 enterprise agreements. 23 This included consideration of a claim by AIMPE and AMOU to the effect that scheduled hours of work must not exceed 12 hours in the new instruments. The AMOU's log of claims identified the AMOU's starting position leading into the bargaining as follows:

“Clause 40 of the current Agreement [2010 Agreement] is to be rewritten to ensure that the daily hours of duty does not exceed twelve hours (12) together with the acknowledgement that services commencing prior to the end (sic) 12 hour will be completed. Duty in excess of the twelve (12) hours shall be remunerated at overtime hourly penalty rate”. 24

[65] The Maritime Union of Australia also raised concerns about vague wording in subclause 40.2.4 of the 2010 EAs and sought a change to the Hours of Work clause in their 2013 EA log of claims. It sought an increase in minimum rest hours from six to eight, exclusive of travel time. It further sought to incorporate a minimum 77 hours rest in a week. 25

[66] Svitzer opposed the claims on various grounds. This included concerns about the impact of an actual limit on working 12 hour shifts, including the impact of such a requirement upon Port Adelaide.

[67] During the negotiations, there were matters that were in common contemplation. These included the variation between Ports including the difference between job start times and line up/down times at different berths in each Port (both captive and non-captive) and that guidance was required in the agreement on how the objective in relation to a 12 hour duty period would be achieved. 26 In addition, the parties contemplated the desirability of enabling the full utilisation of the tugs as close to the 12 hours as possible.27

[68] The structure of what is now subclause 41.2.4 was proposed by Mr Yates 28 and agreed by Svitzer. Whilst the general role to be played by the 2016 EA and the POPs was common ground, the actual import of the final provisions is not agreed. However, the subjective views of the negotiators are of little relevance for reasons set out earlier in this decision.

[69] Ultimately, the terms of what is now subclause 41.2.4 of the present 2016 EA were agreed by all of the negotiating parties and included in each of the 2013 enterprise agreements.

[70] This involved, amongst other more minor alterations, the change in the provision from “Scheduled hours of work should ordinarily not exceed 12 hours" to:

"Scheduled hours of work should not exceed 12 hours. That is:

A. under the Port Operating Procedures, the last towage job in a period of continuous duty must not be scheduled more than 11 hours and 45 minutes after that period has commenced; and

B. jobs commenced prior to the 12^th hour shall be completed.

The parameters for scheduling the last job in the period must be set out in the Port Operating Procedures.”

[71] Other than subclause 40.2.4(viii) of the 2010 EAs, which was incorporated into a new subclause 41.2.4 of the 2013 EAs, the remainder of subclause 41.2.4 (i.e. subclauses (ii), (iii), (iv) and (v)) reflected the same terms as those in the 2010 EAs.

[72] I note also that subclauses 40.2.4(i) and (ii) in the 2013 EAs, which related to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), was subsequently moved to a separate sub-clause in the 2016 EA; being subclause 41.2.5.

[73] The explanation of the changes to the relevant provisions provided to the employees as part of their approval of the 2013 EA included the following:

• The principle that scheduled hours of work should not exceed 12 hours would continue; 29

An additional safeguard against long hours would be created by the provision that the last possible time a job could be scheduled in any Port in Australia was 11 hours and 45 minutes; 30

Weekly rest hours would be managed under the new formula endorsed by the Maritime Labour Convention. That is, an employee would have 77 hours of rest in a 7 day period to aid in fatigue management; 31 and

• The parameters for scheduling the last job in the period would be set out in the POPs (depending on local conditions e.g. average length of tug jobs). 32

[74] I observe that the Unions also relied upon this information as part of their case 33 and as this was provided to the employees as part of a relevant employee approval process it is more probative of common intention than the exchanges passing between the bargaining representatives about negotiations.34

6.3 The former and current POPs

[75] The changes to the 2013 EAs triggered discussions between Svitzer and the Unions (including the CFMMEU) concerning all relevant POPs, including those applying at Port Adelaide. The Port Adelaide discussions concluded in June 2014 with a new procedure (the 2014 POPs). The Unions and Svitzer agreed that the last line up time after the start time for the day should be up to 11.5 hours with different arrangements and assessment points (in some cases pilot times) depending upon location and the nature of the job.

[76] Clause 4.8 of 2014 POPs provided as follows:

“4.8 Last pilot times, after first start time for the day (where start time is later than start of core hours than core hours start time will apply, refer clause 4.1),

Berthings	Sailings
Inner Harbour	+ 10 hrs	+ 11.5 hrs
Osborne	+ 10.5 hrs	+ 11.5 hrs
Outer Harbour	+ 11 hrs	+ 11.5 hrs

Outport commencement of jobs (pilot times)” 35

[77] Following renewed discussions about the appropriate POPs for Port Adelaide, on 16 February 2017, Svitzer and the Unions agreed to implement a new POPs, albeit on a trial basis (the 2017 POPs). The 2017 POPs operated on a “trial” basis as they remained subject to monthly review for the first three months. This occurred in the context of concerns from the Unions about the length and extent of working hours provided under those arrangements. The 2017 POPs contains a similar provision with respect to the last pilot times, at least with respect to the three harbours within Port Adelaide. 36 In addition, the 2017 POPs provides an illustration of the last pilot times for both the AM crew (if 01:00 start) and PM crew (if 13:30 start), confirms modified arrangements for the delivery of tugs to Outer Harbour, and states that the last departure from the tug base to Outer Harbour will be on the eleventh hour from start time.

[78] The parties have been in discussions about the appropriate POPs for Port Adelaide now for many months. Although progress has been made in recent times, a new POPs has not been agreed and the 2017 POPs is disputed by the Unions. Amongst other reasons, the difference of view about whether the 2016 EA permits a POPs at Port Adelaide that contemplates last towage jobs being scheduled at any time up until 11 hours and 45 minutes into a continuous shift, is a major factor preventing any such agreement.

[79] Under the (interim) POPs now in place in Port Adelaide (about which there is a dispute), Svitzer may schedule the last towage job to commence 11 hours and 30 minutes after the shift start time, or in one case, 11 hours. This does, in practice, result in hours of work exceeding 12 hours and it is not uncommon for the hours of work to be up to 14 hours (tug boat back at the wharf from shift commencement) on a shift. 37

[80] Under the 2017 POPs, the following example may operate:

“Start of Shift 13:30; pilot on board 00:30 the next day; start of job 0110 (line up); line down 0210; arrive back at wharf and finish 0330. In this example the scheduled hours of work are 14 hours.” 38

[81] I accept that this particular example is realistic but not common and that alternatives may exist under the current POPs arrangements, and certainly under revised tug berthing arrangements that are being explored. 39

[82] Svitzer has contended that the 2014 and 2017 POPS confirm that the common intention of the relevant enterprise agreements was not to prohibit work beyond 12 hours but to leave the scheduling of the actual last towage jobs to be determined by the POPs.

[83] The Unions do not accept that proposition and indicate, in effect, that the actual working hours have increased in practice since 2014 and this has provided a focus for the proper application of the agreement provisions. Further, they contend that the appropriateness of the POPs has been in dispute in Port Adelaide for some time.

[84] In line with the approach evident in AMWU v Berri, subsequent conduct of parties to an enterprise agreement is relevant only to the extent that it demonstrates a meeting of the minds or a consensus, such as the long-standing consistent application of the same provision which might constitute an objective background fact. In AWU v Pasminco Australia Ltd 40 the Federal Court said:

“Before turning to our consideration of the disputed clause, we wish to make brief observations on the submission made by Pasminco that the conduct considered by the Deputy President was conduct prior to the making of the 2001 award and it is permissible to consider a history of consistent conduct: Short v F W Hercus Pty Ltd and Professional Radio and Electronics Institute of Australasia v Qantas Airways Ltd.

It is clear that in construing an instrument, if there is ambiguity, regard may be had to evidence of surrounding circumstances: see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352 per Mason J. However, we note that the line between prior conduct and surrounding circumstances is not always easily ascertainable. The basic principle when considering evidence of surrounding circumstances in construing an instrument is that the focus is upon the objective framework of facts and the presumed, rather than actual, intention of the parties. Evidence of prior statements and conduct which are reflective of the parties’ actual intention or expectations is not admissible for the purposes of construction: see Mason J’s consideration in Codelfa at 352. Consequently, we do not accept the appellant’s contentions that the AWU’s prior conduct is supportive of its interpretation of c1 29(vi).” 41

[85] There is some force in the proposition advanced by Svitzer, at least to the extent that the 2014 POPs did not reflect a prohibition on scheduling the last towage job so that work could be completed inside of 12 hours (from shift commencement). However, as will become clear, I consider that the provisions when read as a whole and in context have an ordinary and natural meaning and I have not found it necessary to place any weight upon the conduct of the parties in this particular respect. Accordingly, I have not done so in this matter.

7. The proper application of the Enterprise Agreement to the dispute

7.1 Are the provisions ambiguous?

[86] As is clear from the authorities, the surrounding circumstances may be considered to determine whether an ambiguity exits in the 2016 EA. Further, this should be considered at the outset. In addition, the context may also be considered to aide in determining the apparent common objective intention of an enterprise agreement but evidence of that kind cannot be admitted to contradict the plain language of the agreement.

[87] I have set out much of the context earlier in this decision, noting that some of the evidence about subjective intention has not been relevant. As will become clear, I consider that when the 2016 EA is considered as a whole and in context, it has a plain and ordinary meaning which should be applied. Further, and in any event, the admissible extrinsic material applied in a manner consistent with AMWU v Berri is also supportive of the view that I have taken.

7.2 The meaning of the 2016 EA provisions when read as a whole and in context

[88] It is convenient to initially consider the relationship between the 2016 EA and the POPs before turning to the import of subclause 41.2.4.

7.2.1 The relationship between clause 41 and the POPs

[89] The general relationship between the POPs and the provisions of the 2016 EA is set out in clause 5.3. It relevantly provides as follows:

“The POPs are incorporated as a term of this Agreement for the particular Port concerned. However, this Agreement prevails over applicable Port Operating Procedures, which have no effect to the extent of any inconsistency with any term of this Agreement.” 42

[90] Clause 41.1 requires a POPs for each Port and provides for their annual review and associated processes. The role of the POPs is, in large part, established under the procedures set out in clause 41.2 and this clause provides that:

“The Port Operating Procedures (when made or varied) will set out details in respect of the following subject matter, which provide a foundation for the guidance to the parties in developing Port Operating Procedures … …”

[91] The subject matter listed in clause 41.2 for inclusion into the POPs includes:

• Port rosters – subclause 41.2.1;

• Work orders – subclause 41.2.2;

• Availability (of labour) – subclause 41.2.3;

• Hours of work, regular duty requirements and off-duty periods – subclause 41.2.4;

• Maximum days provisions – subclause 41.2.5;

• Fatigue management – subclause 41.2.6;

• Relief arrangements to be utilised in the Port and casual usage – subclause 41.2.7; and

• Other issues of an operational nature, specific to the Port – but not to include procedures that prevent or unreasonably restrict Svitzer’s ability to meet customer and port requirements on Saturdays, Sundays or Public Holidays – subclause 41.2.8.

[92] Clause 41.4 provides that the POPs may be changed by agreement or through a process involving parties advising of proposed changes, local and if required national consultation, formal notice of a proposed change and ultimately, resolution of competing proposals through the dispute resolution procedure of clause 10.

[93] When considered as a whole and in the context of the provisions more generally, the 2016 EA contemplates a relationship between it and the POPs as follows:

• The POPs must provide for the subject matter set out in clause 41.2 relevant to a particular Port;

• The provisions of subclause 41.2.1 are intended to provide a foundation for guidance in the formation of the POPs. Where the provisions of that clause are expressed to be mandatory, the foundation guidance is also mandatory and the POPs must be consistent, given the import of clause 5.3 of the 2016 EA. I note in that regard, that by definition the POPs contain the subject matter provided for in subclause 41.2.1 and there would be no need for an inconsistency provision if the terms of subclause 41.2.1 were only aspirational;

• Where a proposed POPs is disputed (not agreed) the matter may ultimately be brought to the Commission for arbitration applying the guidance of clause 41.2 (and the 2016 EA more generally) in any decision-making exercise; and

• The POPs once made or determined becomes an incorporated term of the 2016 EA and operates at all times, subject to the overriding provisions of any inconsistent terms of the 2016 EA.

[94] I would observe that this approach is consistent with common objective facts and the history of the provisions. It is also consistent with the notion that the parties intended the provisions of clause 41.2 to be more than guidance for the POPs as this approach would make the enforceability of the 2016 EA, and the assessment of the Better Off Overall Test 43 applied by the Commission during the approval stages, problematic at best. Further, the rebuttable presumption that the parties intend to establish binding obligations in enterprise agreements,44 sits well with the above.

[95] Applying that approach, it is now appropriate to consider the import of subclause 41.2.4 of the 2016 EA upon the POPs.

7.2.2 The import of subclause 41.2.4 when read as a whole and in context

[96] The context in which the 2016 EA operates, including the considerable variation between the physical logistics associated with the Ports, is one of those factors which also informs the intended application of this provision. That is, the 2016 EA and the POPs contemplate a significant disparity in the arrangements and the POPs must have the flexibility to operate, subject to the express terms of the 2016 EA, across the range of circumstances.

[97] This is evident in the language of the provisions themselves. Expressions such as “as far as practicable” and “to the greatest extent possible” are used at some points in relation to the rosters. 45 Whereas in other subclauses, the concept of “should”, “must” and “shall” are utilised and the intention of all of these words is to be assessed having regard to the use of that language and the provision when read as a whole.

[98] It is also important at this juncture to recognise that an overly technical approach to interpretation is not appropriate given the nature of the instrument. 46 As put by Mr Niven for AIMPE, the agreement was drafted by a committee.47 It was however made by the employer and a majority of the employees and its intended objective meaning must be applied.

[99] It is apparent that the common objective intention of the changes made in the 2013 EA (reflected in the same terms as subclause 41.2.4 of the 2016 EA) was to strengthen the reference to scheduled hours not exceeding 12 hours. This is apparent from the change in words from “Scheduled hours should ordinarily not exceed 12 hours” to “Scheduled hours should not exceed 12 hours” and the context in which that change occurred. However, the change to remove the concept of “ordinarily” was accompanied by other changes such as the reference to the scheduling of the last job in subclause A and jobs being completed in subclause B, and the express requirement for the parameters for scheduling the last job in the period (of continuous duty) to be set out in the POPs for the first time.

[100] When considered in context, the concept of “should” in subclause 41.2.4(i) is intended to establish a clear objective that scheduled hours are not to exceed 12 hours, but it is not an absolute maximum, and subject to the import of subclauses A and B, which are expressed to be mandatory, the actual parameters - which will vary according to the circumstances of each Port, are to be set out in each POPs.

[101] Consistent with this approach, the requirements in subclauses 41.2.4(ii) and (iii), relating to rest breaks after 14 hours and an absolute maximum of 16 hours of continuous duty, are intended to be mandated as minimum requirements for any POPs. The other provisions of clause 41.2 that are expressed to be mandatory, that is, as “must” or as an entitlement, also have the same intended result.

[102] The remaining issue is how the constraints of subclauses 41.2.4A and B are to be applied. When considered in context and read together with the entire subclause, it is apparent that the obligation, the last towage job must not be scheduled more than 11 hours and 45 minutes after that period has commenced, is intended to provide an outer limit. That is, the POPs, depending upon the circumstances of the Port concerned, may provide for the last towage job at that time. However, this must be considered in the context of that Port and the overall objective that scheduled hours should not exceed 12 hours.

[103] In terms of whether the reference in subclause 41.2.4A is intended to be to the commencement of the job (line up) or to the completion of the job (line down), this is informed by the placement of the provision within the clause and the import of subclause B. Subclause B refers to jobs “commenced prior to the 12^th hour” being completed, and in my view this is intended to be a reference to jobs that are commenced within 12 hours of the commencement of any continuous shift. This is the ordinary and natural meaning of that provision.

[104] In that light, it is apparent that the parties intended that the POPs may provide for the commencement of the last towage job (line up or other reference point set out in the POPs) at any time prior to the 11 hours and 45 minutes after the commencement of the continuous shift, but whether the POPs should do so, is a matter for the parties to consider in the context of the Port concerned, the impact of any proposed commencement time upon the scheduled hours of work, and the objective of scheduled hours not exceeding 12 hours (from shift commencement).

[105] Given the above, there is a genuine issue as to whether the 2017 POPs operating in Port Adelaide is appropriate in light of the scheduled hours objective and terms of the 2016 EA. This is a matter for the other dispute notifications. What is clear is that the assessment of when the last towage job should be scheduled within a particular POPs would include consideration of those factors that affect the length and nature of a job, as well as the circumstances of the employees concerned, such as the roster arrangements in place (including the implications of being non-captive) and the degree of continuous duty involved. In addition, fatigue management principles and strategies would also be relevant. Further, the operational requirements and practical circumstances of the Port need to be taken into account.

[106] As observed earlier, I note that whilst not a consideration that informs the common objective intention in this case, the above approach is consistent with the stated intentions of the negotiators when the provisions were advanced by the parties in the negotiations. 48 Further, the approach is also consistent with the intent as communicated to the employees as part of their approval process in 2013.

8. Conclusions

[107] I have at the outset of this decision set out the competing questions posed by the parties and my concerns with those propositions. As would be clear from the cases presented by the parties and the nature of the actual dispute, a wider scope exists. The better characterisation of the dispute is as follows:

What are the parameters for the POPs at Port Adelaide arising from subclause 41.2.4 (and other relevant provisions)?

[108] This embraces the questions posed by the parties including whether the 2016 EA permits the last towage job in a period of continuous duty to be scheduled on or before 11 hours and 45 minutes after the period has commenced, so as to require work in excess of 12 hours. Further, this involves consideration of the implications of subclause 41.2 4 for the POPs in the context of Port Adelaide.

[109] For reasons set out above, I consider that the proper application of the 2016 EA leads to the following conclusions:

• The POPs must provide for the subject matter set out in clause 41.2 relevant to a particular Port;

• Subclause 41.2.4(i) is intended to establish a clear objective that scheduled hours are not to exceed 12 hours, but it is not an absolute maximum and subject to the import of subclauses A and B, which are expressed to be mandatory, the actual parameters, which will vary according to the circumstances of each Port, are to be set out in each POPs;

• Consistent with this approach, the requirements in subclauses 41.2.4(ii) and (iii), relating to rest breaks after 14 hours and an absolute maximum of 16 hours of continuous duty, are intended to be mandated as minimum requirements for any POPs. The other provisions of clause 41.2 that are expressed to be mandatory, that is, as a “must” or as an entitlement, also have the same intended result;

• The POPs may provide for the commencement of the last towage job (line up or other reference point set out in the POPs) at any time prior to the 11 hours and 45 minutes after the commencement of the continuous shift. However, whether the POPs should do so, is initially a matter for the parties to consider in the full context of the Port concerned including the impact of any proposed commencement time upon the scheduled hours of work and the operational and risk factors identified in this decision; all in the context of the objective of scheduled hours not exceeding 12 hours;

• Under subclause 41.2.4(i)B, jobs commenced within the 12 hours of any (continuous) shift are to be completed, even if this means working beyond the 12^th hour;

• The POPs once made or determined become an incorporated term of the 2016 EA and operate at all times, subject to the overriding provisions of any inconsistent terms of the 2016 EA.

[110] I determine accordingly.

[111] Whether the existing POPs, or those proposed by the parties in the present dispute, are appropriate in light of the proper application of the 2016 EA, is not presently before the Commission for determination. It is clear that all parties will need to reassess their respective positions, at least to some degree.

[112] I recommend that the parties reconsider their present competing POPs proposals and meet to attempt to agree upon a POPs to operate in Port Adelaide.

[113] I grant liberty to apply to have one or more of the dispute applications arising from the competing POPs proposals relisted for further conference or other action consistent with clause 10 of the 2016 EA.

COMMISSIONER

Appearances:

J Moran of the Australia Maritime Officers’ Union.

N Niven of the Australian Institute of Marine and Power Engineers.

M Easton (of counsel) with C Lenard of K&L Gates (both with permission) 49 for Svitzer Australia Pty Ltd.

Hearing details:

2018

Adelaide with video link to Sydney

5 April.

Printed by authority of the Commonwealth Government Printer

1 [2016] FWCA 794 on 10 February 2016.

2 The Maritime Union of Australia, with other Unions, amalgamated to form the CFMMEU on 27 March 2018.

3 C2017/6873, C2017/6875 and C2018/137.

4 Confirmed with the parties at the outset of the hearing – transcript PN18 to PN23.

5 Transcript PN870 to PN872.

6 Svitzer written submissions at 21.

7 [2017] FWCFB 3005.

8 See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FECFB 1621 at [21].

9 [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].

10 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17; See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.

11 (1993) 40 FCR 511.

12 This decision must be applied having regard to the fact that the instrument in that matter was an award of the Commission rather than an enterprise agreement made between the employer and a majority of the employees at the time of approval. See also AWU v Pasminco (2003) 131 IR 1 for the caution required in this regard.

13 [2013] FWCFB 8557.

14 The evidence of Ms Figg – exhibit SW3 at 17.

15 Ibid at 18.

16 Transcript PN124.

17 Based upon the evidence of Mr Paparella about the Tug Tingari and the evidence of Ms Figg.

18 The evidence of Ms Figg – exhibit SW3 at 38.

19 Ibid at 42.

20 The evidence of Mr Yates – exhibit U3 at 8 and 9.

21 At that time, three separate, but consistent, enterprise agreements operated; namely,SVITZER Australia Pty Limited and MUA Towage Enterprise Agreement 2010, SVITZER Australia Pty Limited and AMOU Towage Enterprise Agreement 2010 and SVITZER Australia Pty Limited and AIMPE Towage (Fair Work) Enterprise Agreement 2010.

22 SVITZER Australia Pty Limited and MUA Towage Enterprise Agreement 2010.

23 Svitzer Australia Pty Limited and AIMPE Towage Enterprise Agreement 2013, Svitzer Australia Pty Limited and AMOU Towage Enterprise Agreement 2013 and Svitzer Australia Pty Limited and MUA Towage Enterprise Agreement 2013.

24 Exhibit SW2, Annexure AU5.

25 Exhibit SW2, Annexure AU6.

26 The evidence of Mr Yates – exhibit U4 at 16 to 20 and Mr Umansky – exhibit SW2 at 34 and 35.

27 Ibid.

28 Attachment AU11 to the Statement of Mr Umansky – exhibit SW2.

29 Exhibit U1, Attachment 2.

30 Exhibit SW2, Annexure AU13.

31 Exhibit U1, Attachment 2.

32 Exhibit SW2, Annexure AU13.

33 Exhibit U1.

34 See AMWU v Berri and Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84 at [88] for the impact of the fact that the instrument concerns is an enterprise agreement made with the employees. See also by contrast Swickers Kingaroy Bacon factory Pty Ltd v The Bacon Factories’ Union of Employees, Queensland[2018] FWCFB 1635 at [21] and [22].

35 Attachment CF2 to the evidence of Ms Figg – exhibit SW3.

36 Exhibit CF1 to the evidence of Ms Figg – exhibit SW3.

37 Exhibit U3.

38 The evidence of Mr Paparella at 11 of exhibit U3.

39 The evidence of Mr Paparella at 9 and 11 of exhibit U3 and Ms Figg at 48 and 49 of exhibit SW3.

40 (2003) 131 IR 1.

41 Ibid at 40 and 41.

42 Clause 5.3.1 of the 2016 EA.

43 Section 193 of the FW Act. The hours of work are a central part of any assessment of the BOOT.

44 AMWU v Berri at [44], [47] and [48].

45 Subclause 41.2.1 of the 2016 EA.

46 Geo A Bond and AMWU vBerri.

47 Transcript PN863.

48 See also the evidence of Mr Yates about the context in which the new provision would operate at 16 to 20 of Exhibit U3 and the evidence of Mr Umansky at 29 to 32 of exhibit SW2.

49 Permission was given under s.596 of the FW Act for reasons provided separately to the parties.

The Australian Maritime Officers' Union v Svitzer Australia Pty Ltd

[2018] FWC 1755

20 APRIL 2018

DECISION