DECISION

Fair Work Act 2009
s.739—Dispute resolution

CPSU, the Community and Public Sector Union
-and-
Australian Institute of Marine and Power Engineers
v
Commonwealth of Australia (represented by the Department of Home Affairs)
(C2019/4750)

Dispute about a matter arising under a workplace determination

INTRODUCTION

[1] This decision deals with a dispute about the rostering arrangements for large-hulled vessels (LHV) operated by the Australian Border Force in the context of the operation of the Department of Home Affairs Workplace Determination 2019¹ (2019 Workplace Determination).

[2] The dispute was initiated the Community and Public Sector Union (CPSU). The Australian Institute of Marine and Power Engineers (AIMPE) joined the CPSU (collectively, the Unions) in the dispute. The Respondent is the Commonwealth of Australia (as represented by the Department of Home Affairs) (Department).

[3] In short, the Unions contend that crew are afforded insufficient rest time after extended travel while on duty from their home Locations until they board a LHV such that there is non-compliance with clause 9.28 of the 2019 Workplace Determination. There is also a concern about the amount of time afforded to travel to a LHV deployed in a remote or overseas location. This concern relates to the operation of clause 10.3 of the 2019 Workplace Determination.

[4] By consent the parties agreed that the Fair Work Commission (Commission) would answer the following articulated questions:

Question 1: Are the existing arrangements* implemented by the Department for rostering the ABFC Ocean Shield (or other similar large hulled vessels including the ABFC Ocean Protector) consistent with clauses 9.28, and 10.13 of the Department of Home Affairs Workplace Determination 2019 (WD)?

Question 2: If the answer to question 1 is ‘no’, what modification or variation to the Department’s existing arrangements would bring these arrangements into compliance with clauses 9.28, 10.12 and 10.13 of the 2019 Workplace Determination?

* The “existing arrangements” are those arrangements (including formal rostering arrangements and actual practices) implemented by the Department since the commencement of the 2019 Workplace Determination and that remain in effect on the date of the parties’ agreement to these questions for arbitration (being 12 March 2020).

(Articulated Questions)

[5] However, before me, the parties agreed that, if the answer to question 1 is “no”, I should not go on to decide Question 2, but rather refer the matter back to the parties. 2

JURISDICTION

[6] The Application was made in August 2019. Conciliation was attempted in September and October 2019, without success.

[7] The matter was not immediately programmed for hearing. This is because the 2019 Workplace Determination only invests the Commission with jurisdiction to arbitrate a dispute “if the parties consent”.³

[8] The Unions pressed the Department to agree to consent arbitration. It did so in November 2019. Thereafter, the parties determined the Articulated Questions and then the matter was able to be programmed for hearing.

THE 2019 WORKPLACE DETERMINATION

[9] The 2019 Workplace Determination was determined by a Full Bench of the Commission constituted by Vice President Catanzariti, Deputy President Kovacic and Commissioner Johns on 8 February 2019 following a decision of the Full Bench published on 11 January 2019 (Decision).⁴

[10] By order⁵ of the Full Bench the 2019 Workplace Determination commenced operation on 8 February 2019.⁶ The nominal expiry date of the 2019 Workplace Determination is 2 years after the date of commencement (i.e. 7 February 2021).⁷

[11] The 2019 Workplace Determination covers⁸:

a) the Secretary of the Department of Home Affairs on behalf of the Commonwealth,

b) all Employees of the Department, with the exception of any Senior Executive Service (SES) Employees,

c) the CPSU, and

d) the AIMPE.

[12] The Department is the employer of each employee covered by the 2019 Workplace Determination.

[13] The CPSU is:

a) an association of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FW(RO) Act); and

b) eligible to represent the industrial interests of employees to whom the 2019 Workplace Determination applies.

[14] AIMPE is:

a) an association of employees registered under s 26 of the FW(RO) Act; and

b) eligible to represent the industrial interests of employees to whom the 2019 Workplace Determination applies who work as marine engineers.⁹

[15] Essentially, the dispute is about whether the Department has correctly applied clauses 9.28 and 10.13 of the 2019 Workplace Determination.

[16] The relevant clauses provide that,

“Rest periods

9.28 If an Employee:

(a) undertakes a journey in the course of the performance of their duties, and

(b) that journey involves continuous travelling time of more than 12 hours,
the Employee will be entitled to a paid rest period of sufficient duration to enable overnight rest before recommencing duty. A rest period must not be longer than 24 hours.

….

Working patterns

….

10.13 Where ABFC Ocean Shield (or other similar large hulled vessels designated by the Secretary for the purposes of this clause) are deployed to remote or overseas locations, a roster of 31 days on and 27 days off may apply in order to afford travel to and from the vessel for a 27 day patrol.”

THE DECISION

[17] Rest periods were addressed as follows in the Decision:

“Rest periods

[495] The only difference between the Department’s and the CPSU’s proposed determinations concerns whether an agreement for a lesser rest period must be in writing as proposed by the CPSU. The CPSU also proposes that the reduction can only be agreed after the health and safety implications have been considered. The Department contended that neither requirement assisted with the administration of rest periods, adding that the requirement that agreement be in writing added an unnecessary administrative burden while health and safety would be considered as a matter of course.

[496] AIMPE, relying on Mr Regan’s evidence, sought deletion of the provision in the Department’s proposed workplace determination which stated that subject to operational requirements rostered days off would normally be provided at the employee’s home location. AIMPE did not set out the basis of its opposition to the provision.

[497] While we accept that there is an administrative overhead associated with committing to writing an agreement to a lesser rest period, we consider that doing so constitutes good practice and provides protection to the parties should compliance issues subsequently arise. For this reason, we will include a requirement for agreement to be in writing. However, the absence in the determination of a provision requiring consideration of the health and safety implications does not in any way derogate the Department’s obligations under work health and safety legislation. As such, we will not include such a requirement in the determination we will make. As to AIMPE’s proposal, in the absence of any submissions on the issue, we are not satisfied of the merits of deleting the relevant provision, particularly as the CPSU does not object to the provision.”

[18] Working patterns were addressed as follows in the Decision (footnotes omitted):

“Working patterns

[480] The Department’s proposed workplace determination varies the working patterns for particular vessels from those specified in the ACBPS Agreement. Specifically the Department seeks a 29 days on, 27 days off pattern for other sea-going vessels (currently these vessels work a 28:28 pattern) and 31:27 pattern for the ABFC Ocean Shield and similar large hulled vessels that are deployed to remote or overseas locations (these vessels also currently work a 28:28 pattern).

[481] The Department submitted that it sought these patterns in order to account for the duty time required to be performed to travel to the vessel and the duty required to complete crew changeover, adding that it was experiencing delays in manning vessels which had inter alia resulted in increased reliance on contract crews costing up to $1.5 million per annum. The Department further submitted that allowing for a greater overlap of duty between crews at port to enable crew changeover to occur would result in less reliance on contractor crews and at the same time not compromise vessel patrols at sea. The Department contended that increasing the tour spans as it proposed would also assist it in utilising Marine Unit employees to capacity and had the potential to contribute to productivity. The Department in its submissions also disputed aspects of Mr Selim’s evidence, e.g. the Department submitted that Mr Selim’s safety and fatigue concerns were not justified particularly when regard was had to the industrial instruments which were attached to Mr Regan’s witness statements which contained swings of up to 10 weeks on:10 weeks off per year.

[482] Mr Leonard’s evidence was that due to rostering constraints the Department was using contract crews to tend the ABFC Ocean Shield during changeover to meet minimum manning requirements despite 60 per cent of Departmental employee crew members not completing the required number of duty days each year. Mr Leonard further deposed that a 31:27 roster pattern for the ABFC Ocean Shield would allow for overlap which in turn would avoid the need to use contract crews.

[483] The CPSU sought no change to the existing arrangements, contending that the Department’s proposed arrangements represented a significant degradation of employee entitlements. The CPSU relied on Mr Selim’s evidence. Mr Selim’s evidence was that working patterns were a feature of the ACBPS Agreement and were the result of extensive discussions at the time. More particularly, Mr Selim’s evidence included, among other things, that:

•  the proposed working patterns raised significant concerns for marine employees given that the ABFC Ocean Shield over the period of the ACBPS Agreement and s.24 determination performed all of its deployments at locations that may be considered remote, i.e. Christmas and Cocos Islands;

•  the Department’s proposal disregarded work health and safety considerations;

•  CPSU’s proposed workplace determination included an approach that allowed for greater variation in working patterns in circumstances related to tactical, emergency or other operational reasons, with any days worked beyond the normal work pattern for each category of vessel to be paid as overtime at double time and not to be counted as part of the annual duty requirement;

•  Mr Leonard’s evidence understated the factors involved in operating vessels such as the ABFC Ocean Shield with factors such flight schedules to and from remote locations, minimum manning requirements and weather also playing a part;

•  as to Mr Leonard’s claim that 60 per cent of Departmental employee crew members did not complete the required number of duty days each year, this was also affected by other factors not related to swing lengths, e.g. inadequate management of the duty days of employees;

•  Mr Leonard’s suggestion that a 31:27 work pattern would eliminate these issues did not hold true; and

•  with regard to Mr Regan’s evidence, he was aware that in the maritime industry in general different roster patterns did apply resulting in employees being on vessels for periods of more than 30 days.

[484] AIMPE relied on Mr Worthington’s submissions which inter alia stated that the “28 days on, 28 days off roster is infinitely possible within the bounds of the current EA independent of the Holding crew option” and that vessels similar to the ABFC Ocean Shield are routinely operated on the Australian coast and internationally though “None of these vessel’s [sic] attempt to maintain a 28 days on, 28 days off crewing roster.”

[485] Dealing with the merits of the Department’s proposed provisions regarding working patterns, we note that the Full Bench in Qantas Airways stated that it was relevant to have regard to the practice of other employers in the industry (in that case the airline industry) and the terms and conditions applying to their employees. To that end, we further note that the Teekay Shipping (Australia) Pty Ltd/AIMPE (Engineer Officers) Government Services & Security Fleet Enterprise Agreement 2011 which was appended to Mr Regan’s witness statement specified a normal swing cycle for the MV Ocean Shield and MV Ocean Protector of “eight weeks +/- 7 days”302. Further, as mentioned above, Mr Selim in his oral evidence acknowledged different roster patterns do apply in the maritime industry resulting in employees being on vessels for periods of more than 30 days. Against that background, the Department’s proposed working patterns do not appear to be any more demanding (and perhaps even less demanding) than those operating elsewhere in the maritime industry.

[486] Also relevant is Mr Leonard’s evidence that 60 per cent of Departmental employee crew members do not complete the required number of duty days each year under the current working patterns. While we accept Mr Selim’s evidence that other factors impact on this utilisation rate, the material before us points to the Department’s proposed provision resulting in costs savings from reduced reliance on contract crews and potential productivity improvements [s.275(e)].

[487] Having regard to the above analysis, we are satisfied as to the merits of the Department’s proposed provisions relating to working patterns [s.275(a)] and consider that they appropriately balance the interests of the Department and employees. To the extent that issues arise from implementation of the revised working patterns these can be considered in the context of bargaining for an enterprise agreement to replace the workplace determination [s.275(h)].”

HEARING

[19] At the substantive hearing on 8 September 2020,

a) the CPSU was represented by Ms Annette van Gent, Industrial Officer,

b) AIMPE was represented by Mr Michael Bakhaazi, Director of Government Relations & National Legal Director, and

c) the Department was represented by Mr Simon Meehan of counsel, instructed by Mr Stephen Reeves, Senior Lawyer, Australian Government Solicitor.

[20] In advance of the substantive hearing the parties filed material. At the hearing further exhibits were tendered. For completeness I set out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.

[21] Evidence was received from:

For the CPSU

a) Adam Elder, Marine Tactical Officer, National Marine Unit, Department of Home Affairs.

b) Peter Harris, Marine Tactical Officer, National Marine Unit, Department of Home Affairs.

c) Health Jones, Senior Marine Communications and Technical Officer, ABF Marine Unit, Department of Home Affairs.

d) Jake Sparke, Marine Tactical Officer, ABF Marine Unit, Department of Home Affairs (who was not required for cross-examination).

For AIMPE

e) Dominic Worthington, Marine Engineer Officer (principally as one of the Chief Engineers on ABFC Ocean Shield), ABF Marine Unit, Department of Home Affairs.

For the Department

f) Dannielle Robinson, Acting Superintendent, Marine Workforce Capability Branch, Close Support Command, Australian Border Force.

STATEMENT OF AGREED FACTS

[22] On 22 May 2020 the parties filed a Statement of Agreed Facts (SAF). Consequently, I make the following findings of fact:

THE PARTIES

[23] The Australian Border Force (ABF) is the operational arm of the Department, established under the Australian Border Force Act 2015. The ABF has a separate operational and organisational structure to the Department, led by the Australian Border Force Commissioner. Employees in the ABF (ABF officers) are engaged by the Secretary of the Department under the Public Service Act 1999, and the Secretary is an employing authority for the purposes of s 795 of the Fair Work Act 2009 (rather than the ABF Commissioner). The 2019 Workplace Determination applies to employees in the ABF.

THE LARGE HULLED VESSELS

[24] This dispute relates to the rostering arrangements of two large hulled vessels operated by the ABF: the Australia Border Force Cutter Ocean Shield (ABFC Ocean Shield), and the Australia Defence Vessel Ocean Protector (ADV Ocean Protector) (collectively, the LHVs).

The ABFC Ocean Shield

[25] The ABFC Ocean Shield was launched in 2012 and has a length overall of 110.9 meters with a beam of 22.0 metres.

[26] The ABFC Ocean Shield operates under the Australian Border Force Vessel Management Plan — ABFC Ocean Shield (Ocean Shield VMP).¹⁰

Crewing arrangements and requirements — General

[27] The ABFC Ocean Shield is crewed by a combination of ABF officers, crew contracted through Teekay Shipping (Australia) Pty Ltd (Teekay) and medical personnel contracted through Aspen Medical Pty Ltd (Aspen).

[28] Under the Ocean Shield VMP the optimal operational crew for the ABFC Ocean Shield for ‘Northern Operations’ (which include operations in the Christmas Island / Cocos (Keeling) Island corridor) is 37.

[29] Teekay provides 7 crew per swing and has surge crew available on request.

Crewing requirements and arrangements —crew change

[30] Under the Ocean Shield VMP, the Ocean Shield must maintain a minimum crew of 14 at all times while at sea, including during the change between incoming and outgoing crew (referred to in this document and ABF policies as ‘handover’).

Accommodation

[31] Part 3 of the Ocean Shield VMP sets out minimum standards for crew accommodation and sleeping arrangements.

[32] Each crew member is normally provided with their own cabin on board, containing:

a) single or bunk beds;

b) an ensuite containing a toilet, shower and sink;

c) a table and chair;

d) a television; and

e) a porthole.

[33] The vessel can accommodate 60 crew or passengers without doubling up in cabins.¹¹ If all cabins are used, this includes 24 interior cabins not fitted with a porthole to admit natural light.

[34] The ABFC Ocean Shield also provides a mess room, a recreation room (which also functions as a briefing, lecture and training room), gyms and laundry facilities.

Deployment

[35] LHVs have been deployed to remote and overseas locations including the Christmas Island / Cocos (Keeling) Island corridor since the establishment of Operation Sovereign Borders (OSB) in 2013, with the ABFC Ocean Shield deployed since late 2015. Remote handovers (that is, handovers away from the mainland) have been conducted periodically since 2015. Remote handovers became common in 2017.

[36] The first deployment of the ABFC Ocean Shield using a 31 day on / 27 day off working pattern under the 2019 Workplace Determination with a remote handover was from 5 May 2019 to 4 June 2019.

The ADV Ocean Protector

[37] The ADV Ocean Protector was launched in 2007 and has a length overall of 105.9 meters long with a beam of 21.0 metres.

[38] The ADV Ocean Protector has been designated by a delegate of the Secretary of the Department for the purposes of cl 10.13 of the 2019 Workplace Determination.

Crewing arrangements and requirements — General

[39] The marine crew of the ADV Ocean Protector are contracted by the Australian Defence Force through Teekay, with medical services (a medic and a doctor) provided by Aspen.

[40] The ABF is responsible for the provision of enforcement crew, who provide the vessel’s boarding and interdiction capability. When assigned to OSB activities, a minimum of 20 ABF officers are embarked on the ADV Ocean Protector comprising:

a) an Enforcement Commander;

b) a Deputy Enforcement Commander and Team Leaders;

c) a Senior Marine Communications and Technical Officer; and

d) Marine Tactical Officers.

Crewing requirements and arrangements — handover or crew change

[41] Under its International Convention for the Safety of Life at Sea (‘SOLAS’) certification requirements (which are administered by ASMA under the Navigation Act 2012), the ADV Ocean Protector must maintain a minimum crew of 20 enforcement crew at all times while at sea deployed to OSB operations, including during handover between incoming and outgoing crew when there are transportees on board the vessel. The minimum of 20 enforcement crew is not maintained during handover when there are no transportees on the vessel. However, a minimum of two suitably qualified ABF officers must be maintained on the vessel in any case to ensure the security of the armoury and ABF communications systems.

[42] During the usual handover period, the vessel is not available for operational tasking but is maintained by contracted marine crew (see 27, above), with the ABF presence referred to in [30] above maintained to secure the armoury and ABF communication systems.

Accommodation

[43] Each crew member is normally provided with their own cabin on board, containing:

a) single or bunk beds;

b) an ensuite containing a toilet, shower and sink;

c) a table and chair;

d) a television; and

e) a port hole.

[44] The vessel can accommodate 60 crew or passengers without doubling up in cabins.¹²

[45] The cabins of the Enforcement Commander and Duty Enforcement Commander include a larger sitting area and computer facilities.

[46] The ADV Ocean Protector also provides a mess room, recreation rooms, gyms and laundry facilities.

Deployment

[47] LHVs have been deployed to remote and overseas locations including the Christmas Island / Cocos (Keeling) Island corridor since the establishment of OSB in 2013, with ADV Ocean Protector deployed to this location since 2016. Remote handovers have been periodically conducted since 2013, when the vessel was the “Australian Customs Vessel Ocean Protector”. Remote handovers (that is, handovers away from the mainland) became routine in 2017.

[48] The first deployment of the ADV Ocean Protector using a 31 day on / 27 day off working pattern with a remote handover was 13 June 2019 to 13 July 2019.

GENERAL ROSTERING ARRANGEMENTS

The Employees

[49] The ABF officer crew of both LHVs form part of the Marine Workforce Capability Branch of the ABF. As at 31 March 2020, there are 524 marine sea-going employees within the Marine Workforce Capability Branch.

[50] 112 employees are regularly rostered on the LHVs (Regular Crew Members). Additional employees are from time to time surged from other vessels in the ABF fleet.

[51] Employees in the Marine Workforce Capability Branch of the ABF live in locations across Australia.

[52] Under clause 10.41 of the 2019 Workplace Determination an employee’s rostered duty commences when they depart their ‘home Location’¹³ for duty.

Travel arrangements

Travel between the mainland and Christmas Island

[53] Direct commercial flights from mainland Australia to Christmas Island are only available from Perth.¹⁴

[54] Travel from any home location other than Perth therefore requires at least one connecting flight.¹⁵

Travel between Christmas Island and the LHV

[55] The ABF is provided with barge transportation between the Christmas Island wharf and the LHVs through a subcontractor (Barge Contractor).

[56] The Barge Contractor provides transport for the crew members and their baggage from the wharf to the vessel. Due to the capacity of the barges, three to five trips between the wharf and the vessel are normally required in relation to each handover.

[57] The Barge Contractor has three barges, although only two are generally operational at any one time. Crew handovers are normally conducted with a single barge. Using an additional barge provides no greater efficiency, but has additional costs.

[58] There are minimal restrictions in the availability of barges during the early hours of the morning, provided the ABF can provide adequate notice to the Barge Contractor. However, the Barge Contractor will prioritise commercial shipping clients over the ABF. The current arrangements (set out below) avoid this issue, as there is limited competition for barge availability in the early morning.

[59] Poor weather or visibility may restrict handover activities and can result in barge transportation being cancelled. Risk assessments are undertaken by ABF and the Barge Contractor at the time of handover to ensure the safety of crew members.

Accommodation provided on Christmas Island

[60] When staying overnight on Christmas Island, ABF officers are provided with Department-owned accommodation.

[61] Before and after each stay, rooms are attended by the service provider for general cleaning (such as bedding, floors, bathrooms and the fridge), however, employees are responsible for washing utensils during their stay.

[62] The accommodation provided is in the town of Poon Saan. The accommodation is a short walk from the local store (which sells food and general items), which is open until 9pm, a local café and the Lucky Ho restaurant.

General Rostering Requirements and Arrangements

[63] Each LHV has a Crew A and a Crew B (also referred to as a ‘Port crew’ and a ‘Starboard crew’) who alternate between crewing and rest periods.

[64] Minimum crewing requirements (14 on ABFC Ocean Shield and 20 on ADV Ocean Protector), mean that the outgoing crew cannot leave the LHV until they have completed handover with the incoming crew. As such, during a remote handover there must be an overlapping period where both Crew A and Crew B are present on the LHV. Enforcement crew and marine crew are, however, not both maintained to operational levels during the entirety of the handover process, only minimum crew requirements must be maintained.

[65] The handover process (that is, the process of changing from one crew to another) consists of:

a) Tasks which can generally be performed by the outgoing crew before the incoming crew embark such as the preparation of handover notes, fresh water wash-down, deep clean of the engineering spaces, weapons muster, stock take of chemicals, stock take of minor and major lubricants, preparation and dispatch of logistics support requisitions, deep clean of the accommodation spaces post- patrol reports, and the finalisation of maintenance and maintenance reports. Enforcement crew return their personal defensive equipment (PDE). Once PDE has been returned, enforcement crew cannot be operationally deployed without allowing time for the re-allocation of PDE (which takes approximately two hours). Handover of PDE must be undertaken face-to-face between the 2 members of the incoming and outgoing crew (so requiring 4 officers in total).

b) Tasks that require both crews to be present on the vessel, including face to face handovers between key positions including the Commanding Officer, Chief Engineers, Enforcement Commanders, Chief Cooks, Senior Marine Communication and Technical Officers and other senior officers. The face-to-face handovers includes briefing on current engineering configurations or defects, confirmation of navigational, maintenance and operational plans, and importantly, transferring of command to the incoming Commanding Officer via the vessel’s log.

c) Tasks which can be performed by the incoming crew after the outgoing crew’s departure, which complete the process of readying the vessel for the next patrol.

[66] When the ABFC Ocean Shield is undergoing handover, it is regarded by the ABF as ‘chopped out’. This means that the vessel cannot be given an operational tasking by Maritime Border Command (MBC) (except in an emergency situation¹⁶). During this time, ABF treat the vessel as being under the management of Close Support Command (CSC) rather than MBC. As a Defence vessel, ADV Ocean Protector does not ‘chop’ to CSC but is recognised as not being available for routine operations in the Asset Availability Plan.

[67] This means that to have the LHV perform a 27-day patrol, the following crew deployment pattern is used:

CURRENT ROSTERING ARRANGEMENTS

[68] The following arrangements have been adopted by the ABF to manage crew travel to the LHVs for handover near Christmas Island, and remained in place as of 12 March 2020.

Arrangement 1

Travel to the vessel

[69] Employees in Crew A commence travelling from their home Location to Christmas Island on the first day of their 31 day on swing (Crew A Day 1).

[70] The employees travel to Christmas Island by plane.²⁰ Most employees have travelled for at least 12 hours prior to arriving on Christmas Island.

[71] The employees are not assigned any duties on arrival on Christmas Island.²¹

[72] The ABF provides the employees with accommodation on Christmas Island.

[73] The employees commence travel from their accommodation on Christmas Island to the LHV at 0345 hours the next day (Crew A Day 2). This starts with a bus ride from the accommodation to the wharf that the barge departs from which normally takes approximately 15 minutes.

Travel from the vessel

[74] The LHV completes its patrol and arrives at Christmas Island on the 29th day of the current crew’s on-swing (Crew A Day 29).

[75] On the 30th day on the crew’s on-swing (Crew A Day 30), the crew prepare the vessel for handover to the incoming crew.

[76] On the 31st day of the current crew’s on-swing (Crew A Day 31), the incoming crew arrive, (Crew B, Day 2). Crews A and B complete the face-to-face handover of the vessel.

[77] After completing handover to Crew B, the employees in Crew A commence travelling home, arriving at their home Location (subject to any missed flight connections), prior to the end of Crew A Day 31.

Arrangement 2

[78] Arrangement 2 has only been used for a remote handover in relation to the ADV Ocean Protector.

Travel to the vessel

[79] Employees in Crew A commence travelling on the first day of their 31 day on swing (Crew A Day 1).

[80] On arrival on Christmas Island (at approximately 1600 hours of Crew A Day 1) the employees immediately transfer to the LHV, via a bus trip from the airport to the wharf, followed by barge transfer of the employees and their baggage from the wharf to the LHV (subject to barge availability, weather and sea state).

[81] The employees arrive on the LHV at approximately 1730 hours on Crew A Day 1. Most employees have travelled for at least 12 hours prior to arriving on Christmas Island.

[82] At approximately 0430 hours²⁵, the employees commence handover and patrol preparation activities.

Travel from the vessel

[83] The LHV completes its patrol and positions itself near Christmas Island on the 29th day of the current crew’s on swing (Crew A Day 29).

[84] On the 30th day on the crew’s on-swing (Crew A Day 30), the crew prepare the vessel for handover to the incoming crew, performing the type of tasks referred to at 65.a, above.

[85] On the 30th day of the current crew’s on-swing (Crew A Day 30), the incoming crew arrive, as set out in paragraph 70, above (Crew B, Day 2).

[86] After Crew B have completed their rest period, Crew A and Crew B complete the face-to-face handover of the vessel.

[87] After handover is complete, employees in Crew A commence travelling home, arriving at their home Location (subject to any missed flights connections), prior to the end of Crew A Day 31.

PREVIOUS INDUSTRIAL ARRANGEMENTS

[88] Prior to the commencement of the 2019 Workplace Determination on 8 February 2019, the terms and conditions of employees in the Department were (relevantly) contained in:

a) the Department of Immigration and Citizenship Enterprise Agreement 2011-2014; and

b) a determination made under section 24(3) of the PS Act²⁶ (Determination) which in effect adopted the terms of the Australian Customs and Border Protection Service Enterprise Agreement 2011-2014 for ‘Marine Unit employees’.²⁷

PRINCIPLES OF INTERPRETATION

[89] A Workplace Determination is not an enterprise agreement. It is not the result of a bargain. Consequently, the principles relevant to the task of construing an enterprise agreement as distilled in The Australasian Meat Industry Employees Union v Golden Cockerel²⁸ and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited²⁹ do not apply.

[90] However, as the Full Bench (still relevantly for present purposes) observed in Berri,

[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided,³⁰ and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.³¹

[91] A Workplace Determination is a creation of the Commission. Consequently, the principles applicable to interpreting a Workplace Determination are the same as those applicable to interpreting other industrial instruments, like industrial awards.

[92] The general approach to the construction of industrial instruments was set out by Flick J in Australian Workers’ Union v Cleanevent Australia Pty Ltd,³²

13 When construing the terms of an award, it is well-settled that a “narrow or pedantic approach” is to be shunned and that the “search is for the meaning intended by the framer(s)”: Kucks v CSR Ltd (1996) 66 IR 182 at 184. Madgwick J there observed:

Legal principles

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

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.

See also: Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30], (2014) 318 ALR 54 at 58 per Tracey J; Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCA 532 at [6] per Logan J; Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 at [240] per Murphy J. The words used in an agreement or an award are to be given their “natural and ordinary meaning”: Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [16].

14 It is also well-settled that the words of an award are not to be construed “in a vacuum divorced from industrial realities”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57], (2006) 153 IR 426 at 440. French J (as his Honour then was) there observed:

[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or 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’. It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ — Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).

His Honour continued on to observe:

[57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

15 There is repeated reference in the authorities to the need to take into account the “context” in which an industrial agreement or award emerges. Thus, by way of example, in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2], (2005) 222 CLR 241 at 246 Gleeson CJ and McHugh J observed:

The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose …

Kirby J there also observed:

[66] … In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.

[67] In the present case, the Union’s submission was that these generalities were all very well, but that in the end, the Court had to give effect to the language of the Agreement. Clearly, this is correct. Interpretation is always a text-based activity …

In Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, (2014) 245 IR 449 at 455 Siopis, Buchanan and Flick JJ similarly stated:

[22] The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination.

Their Honours continued:

[46] … giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted.”

[93] With respect, I adopt the above principles of construction.

[94] I note also that I must apply the Acts Interpretation Act 1901 (Cth) in interpreting the 2019 Workplace Determination.³³

SUBMISSIONS

[95] The CPSU submitted that,

Question One

In response to Question One, the CPSU submits that the Department’s rostering arrangements for its large hulled vessels are not consistent with clauses 9.28 and 10.13 of the Workplace Determination.

Clause 9.28

Clause 9.28 of the Workplace Determination states that:

If an employee:

(a) Undertakes a journey in the course of the performance of their duties, and

(b) That journey involves a continuous travelling time of more than 12 hours

The employee will be entitled to a paid rest period of sufficient duration to enable overnight rest before commencing duty. A paid rest period must not be longer than 24 hours.

14. The CPSU submits that the Department’s rostering arrangements with respect to its large hulled vessels are not consistent with clause 9.28 because they do not allow for a paid rest period “of sufficient duration to enable overnight rest before commencing duty”, after employees have travelled for more than 12 hours “in the course of the performance of their duties”.

15. Clause 9.28 of the Workplace Determination requires that the Department provide employees who have undertaken more than 12 hours travel “in the course of the performance of their duties” with a paid rest period “of sufficient duration to enable overnight rest before commencing duty”. Clause 9.28 stipulates that the paid rest period is to be no longer than 24 hours but does not stipulate a minimum duration for the rest period. To determine whether a particular rostering arrangement is consistent with clause 9.28, it is therefore important to identify what is meant by a paid rest period “of sufficient duration to enable overnight rest before commencing duty”, and what is meant by more than 12 hours travel “in the course of the performance of their duties”.

Paid Rest Period

16. The natural and ordinary meaning of the words of clause 9.28 relating to rest is extremely clear. A rest period “of sufficient duration to enable overnight rest before commencing duty” is clearly meant to refer to an overnight rest. The ordinary meaning of the word “overnight” (used as an adjective) is “done, occurring or continuing during the night: an overnight stop; staying for one night: overnight guests.³⁴ A rest period that was interrupted in the middle of the night (for example, at 0300) would not be an “overnight rest” in the natural and ordinary meaning of those words.

17. The purpose of clause 9.28 as it relates to rest periods is also clear. Its purpose is to ensure that employees who have been engaged in extended travel are provided with adequate rest prior to the commencement of their duties. This specific purpose is consistent with the broader purpose of requiring that the Department fulfil its primary duty under s 19 of the Work Health and Safety Act 2011 (Cth), which is to ensure the health and safety of its employees. In this context, this entails a duty to take reasonable steps to manage the risk to employees arising from fatigue.

18. That the Department is aware of the risk of fatigue, and the need to take appropriate measures to manage the risk arising from fatigue, is evident from its Work Instruction 1002 – Fatigue Management and Recording of Hours Aboard (annexed to the witness statement of Ms Danielle Robinson). Work Instruction 1002 recognises that “The presence of fatigue provides the potential for an increase to accidents and injuries to occur when completing tasks” (at Annex A). It acknowledges that contributing factors to fatigue include “the time of day or night that work is performed and the number of

hours worked in a working shift” and “working at a time when workers are biologically programmed to sleep” (at Annex B of Work Instruction 1002). Finally, Work Instruction 1002 sets out a series of measures to control the risk of fatigue, which include “provide fatigued personnel with time for restorative sleep (minimum 6 hours)”, and “schedule safety critical work outside low body clock periods (for instances, not between 0200 and 0600” (at Annex D of Work Instruction 1002).

19. Read in accordance with its purpose, the natural meaning of clause 9.28 in so far as it relates to paid rest periods after travel is clearly that employees are entitled to a period of overnight rest (i.e. rest for the duration of the night, enabling sleep) prior to commencing their duties. They are entitled to this period of rest in each instance where they have undertaken more than 12 hours travel “in the course of the performance of their duties”.

Travel

20. The words travel “in the course of the performance of their duties” in clause 9.28 must be interpreted in accordance with their natural and ordinary meaning, and their context. That context includes the provisions of Part 10 of the Workplace Determination, which set out the conditions specifically applicable to sea-going marine employees.

21. At clause 10.2, the Workplace Determination includes “travel days” in its definition of “duty days”. At clause 10.42, the Workplace Determination provides that, for the purpose of rostered duty, “time commences when the employee leaves their home Location”. At clause 10.43, the Workplace Determination provides that employees “who are required to travel to a vessel located in the Employee’s home Location that is scheduled for deployment….” are entitled to an allowance to assist with meeting the costs of that travel.

22. As clause 10.43 makes plain, travel from an employee’s residence to their home Location for the purpose of joining their vessel is a recognised and “required” element of the employee performing their duty. This is reflected in the Department’s Marine Domiciling Policy, which is annexed to the Witness Statement of Ms Danielle Robinson. The Marine Domiciling Policy refers to travel from the marine employee’s residence to their home Location for the purpose of joining their vessel as occurring on “rostered on” days and attracting an allowance to assist in meeting the costs of travel. This is in contrast to travel to a work site in the marine employee’s nominated home port, which is not referred to as occurring on rostered time and which does not attract an allowance. In this context, marine employees’ travel from their residence to their home Location for the purpose of joining their vessel is clearly undertaken “in the course of the performance of their duties” within the natural and ordinary meaning of those words in clause 9.28.

23. The CPSU does not support a characterisation of marine employees’ travel during their “rostered on” time from their residence to their home Location for the purpose of joining their vessel as not being a journey taken “in the course of the performance of their duties” for the purpose of clause 9.28. This would involve an unduly narrow and pedantic interpretation of that clause (Kucks v CSR at [184]). It could also create an absurd result: for example, a journey of 12 hours comprising 4 hours of travel from the marine employee’s residence to the home Location and then 8 hours of travel from the home Location to the vessel being characterised as a journey of less than 12 hours for the purpose of clause 9.28. As this example demonstrates, it would also be a reading of clause 9.28 that would undermine its overarching purpose, which is to ensure that employees who have undertaken actual travel of more than 12 hours are adequately rested prior to commencing duty, in accordance with the Department’s obligations to its employees under the Work Health and Safety Act.

Arrangements Required by Clause 9.28

24. Read in a manner consistent with its natural and ordinary meaning, its purpose and its context, clause 9.28 requires that employees who have undertaken a journey of more than 12 hours in the performance of their duties are entitled to be rested overnight (i.e. permitted to rest for the duration of the night in order to facilitate sleep). For sea-going marine employees, travel “in the performance of their duties” for the purpose of clause 9.28 must include travel from their residence to their home Location to join their vessel.

Consistency of Rostering Arrangements with Clause 9.28

25. The Witness Statements of Adam Elder, Peter Harris and Heath Jones provide examples of the travel arrangements for marine employees on the ABFC Ocean Shield and ADV Ocean Protector.

26. The witness statement of Adam Elder describes a travel arrangement which involves Mr Elder leaving his residence at 0430 hours, to undertake a journey of approximately 14 hours and 30 minutes to reach Christmas Island (Witness Statement of Adam Elder at paragraphs [13] and [15]). Mr Elder then describes having to wake at 0330 on Christmas Island, in order to join the vessel at 0400 (at paragraph [18]). What is described in the witness statement of Mr Elder is a typical journey undertaken in the course of the performance of his duties of more than 12 hours, after which overnight rest is not provided prior to him being required to commence duty. This is not consistent with clause 9.28.

27. The witness statement of Peter Harris describes Mr Harris departing his residence at 0545 and then undertaking a journey of approximately 15 hours and 10 minutes to reach Christmas Island (Witness Statement of Peter Harris at [14] – [16]). Mr Harris then awakens at 0300 hours on Christmas Island in order to depart his accommodation at 0330 hours, after a period of broken sleep (Witness Statement of Peter Harris at [13] – [15]). Mr Harris’s statement describes a journey in the course of the performance of his duties of more than 12 hours, after which he is not afforded an overnight rest prior to commencing duty. This is not consistent with clause 9.28.

28. The witness statement of Heath Jones describes his travel commencing at 0430 hours and continuing for approximately 14 hours and 50 minutes to arrive at Christmas Island (Witness Statement of Heath Jones at [13]-[14]). Mr Jones then describes awakening at 0250 hours after approximately 5 or 6 hours of broken sleep in order to join the vessel at 0330 hours (Witness Statement of Heath Jones at [16]. Again, Mr Jones is describing a journey, undertaken in the performance of his duties, of more than 12 hours after which he is not afforded an overnight rest prior to commencing duty. This is not consistent with clause 9.28 of the Workplace Determination.

29. The witness statement of Danielle Robinson indicates that the arrangements described by Mr Harris in his witness statement are “not common” (Witness Statement of Danielle Robinson at paragraph [49]). Ms Robinson does not state that the arrangements described by Mr Harris do not occur.

30. Further, the Statement of Agreed Facts confirms that most marine employees have travelled for at least 12 hours prior to arriving on Christmas Island (Statement of Agreed Facts at [52]) and leave their accommodation on Christmas Island at 0345 hours the following day (Statemen of Agreed Facts at [54]).This is consistent with the description of travel arrangements to join the vessels provided in the witness statements of Adam Elder, Peter Harris and Heath Jones to which we refer at paragraphs [24] – [28]. Those travel arrangements are representative of the travel arrangements across the Marine Unit for employees working on large hulled vessels.

31. The Department’s rostering arrangements for its large hulled vessels require most marine employees to travel greater than 12 hours and then do not allow a “rest of sufficient duration to enable overnight rest” after this journey. The travel arrangements and any rest or accommodation arrangements after this travel are therefore inconsistent with clause 9.28 of the Workplace Determination Clause 10.13

32. Clause 10.13 of the Workplace Determination states:

When the ABFC Ocean Shield (or other similar large hulled vessels designated by the Secretary for the purpose of this clause) are deployed to remote or overseas locations, a roster of 31 days on and 27 days off may apply in order to afford travel to and from the vessel for a 27 day patrol.

33. Clause 10.13 creates an exception to the general rostering arrangements provided in clause 10.12. Clause 10.12 provides:

Working patterns for Strategic Patrols will normally be in periods of:

(a) 22 days rostered on and 20 days rostered off for duty on Bay class and Torres Strait vessels;

(b) 28 days rostered on and 28 days rostered off for duty on Cape class and Thayiak vessels;

(c) 29 days rostered on and 27 days rostered off on all other sea-going vessels;

(d) 42 days rostered on and 42 days rostered off on Southern Oceans operations.

34. Clause 10.12(c) is applicable to large hulled vessels (as they are neither Bay class vessels, Torres Strait vessels, Cape Class or Thayiak vessels or deployed to Southern Oceans operations). Its effect is that, for a “Strategic Patrol”, large hulled vessels should ordinarily be rostered on for a period of 29 days and rostered off for a period of 27 days. While the term “Strategic Patrol” is not defined in the Workplace Determination, clause 10.2 does define “duty day” as:

…..a day on which work in performed and includes, but is not limited to, duty performed on a Sea-going vessel (sea duty), travel days, administrative support days, training days that attract sea-going commuted allowance, shore-based duty and days in port.

35. The days “rostered on for duty” for an ordinary Strategic Patrol to which clause 10.12 refers would logically be “duty days” within the meaning of clause 10.2: i.e. days on which work is performed, including travels days, days in port and sea duty.

36. The structure of clauses 10.12 and 10.13 show the purpose of clause 10.13 of the Workplace Determination is to create an exception to the usual rostering arrangements provided by clause 10.12. The exception from the usual rostering patters is for circumstances in which the large hulled vessels are deployed to remote and overseas locations. Clause 10.13 recognises that an exception to the usual rostering arrangements provided by clause 10.12 is required when a vessel is deployed to a remote or overseas location, because additional travel time is required to access those locations. Clause 10.13 explicitly states this, when it states that the alternate roster pattern may be used “to afford travel to and from the vessel for a 27 day patrol” (emphasis added).

37. As the Statement of Agreed Facts at paragraph [49] makes clear, the arrangements provided by clause 10.13 are not being utilised as on an exceptions basis to afford greater travel time for marine employees deployed to remote or overseas locations, but in the CPSU’s view are rather purportedly being applied as the general rostering practice for large hulled vessels and to afford those vessels a longer period of patrol than 27 days.

38. The CPSU submits that the Department’s rostering practices with respect to its large hulled vessels do not meet the requirements of clause 10.13 in two respects: namely, that they do not allow for the additional travel time required by that clause and they do not allow for a “27 day patrol”, but rather for a longer period of patrol.

Patrol

39. The Workplace Determination does not define the word “patrol”. The word must therefore be interpreted in accordance with its natural and ordinary meaning, as well as its purpose and context in the Workplace Determination, and its broader industrial context.

40. The natural and ordinary meaning of a “patrol” (used as a noun) is “the act of patrolling: on patrol”, and as a verb it means “to go about in or traverse for the purpose of guarding or protecting”.³⁵

41. “Patrolling” in the sense of conducting surveillance is clearly a critical component of the work of ABF Marine Unit employees on the ABFC Ocean Shield and ADV Ocean Protector. However, there are a range of other components to the work that these employees conduct at sea, beyond “patrolling” activities. This is reflected in the witness statements of Adam Elder (at paragraph [3]) and of Peter Harris (at paragraph [3]). The literal meaning of the word “patrol” therefore is of limited utility in understanding its meaning for the purpose of clause 10.13.

42. In the context of the Workplace Determination (particularly at clause 10.12), the term “patrol” should be read as meaning the period in which a marine employee is rostered on for duty. The reasons for this are set out at paragraphs [34]- [35] of this submission. The witness statement of Heath Jones at paragraph [19] also supports this interpretation. At paragraph [19] of his witness statement, Mr Jones has annexed a communication from the Department regarding his travel arrangements to join his vessel, which refers to his rostered on period (including travel time) as his “patrol”.

43. Interpreting “patrol” as meaning the marine employee’s rostered on period creates some difficulties in the context of clause 10.13 of the Workplace Determination, which (unlike clause 10.12) delineates a travel period within the 31 day rostered on period and a “27 day patrol”. The question remains, therefore, what is meant by a “27 day patrol” in clause 10.13. The industrial context as set out in the Statement of Agreed Facts as well as the witness statements of Adam Elder, Heath Jones, Peter Harris and Jake Sparke is instructive here.

44. As these materials and evidence make clear, marine employees on the ABFC Ocean Shield and ADV Ocean Protector board their vessels on arrival at Christmas Island between approximately 0415 and 0430, and immediately commence a handover process (Statement of Agreed Facts at paragraph [11]). During that handover process, they are required to maintain minimum crewing numbers (Statement of Agreed Facts at paragraphs [22]-[23]). The ABFC Ocean Shield is “chopped out” during handover, meaning that it cannot be given an operational tasking, however it can be deployed operationally in the event of an emergency (Statement of Agreed Facts at paragraph [48]). The ADV Ocean Protector is not “chopped out” but can only be deployed operationally in an emergency (Statement of Agreed Facts at paragraph [48]). Reference to the operational availability of both vessels in an emergency is also made at paragraphs [32]-[35] of the witness statement of Danielle Robinson. The effect of all of this is that both the ABFC Ocean Shield and the ADV Ocean Protector must maintain a minimum level of operational readiness (to respond in an emergency) throughout the handover process undertaken by incoming and outgoing crew.

45. Incoming crew are required to commence their duties from the time that they board their vessels, with a handover process. This process is described in the witness statements of Jake Sparke (at paragraphs [19] – [20]}, Peter Harris (at paragraph [22]), Heath Jones (at paragraph [19]) and Adam Elder (at paragraph [18]). As Mr Elder states in his witness statement at paragraph [18], this includes marine employees commencing surveillance activities by initiating a watch on the bridge of the vessel, on the morning of the incoming crew’s arrival.

46. On the basis of this evidence and the context of the clause in the Workplace Determination, the word “patrol” should be interpreted as referring to the period in which marine employees are working on board their vessels, from boarding their vessel for handover to disembarking the vessel for departure. A “27 day patrol” for the purposes of clause 10.13 is therefore a 27 day period in which marine employees are required to work, from the time that they board their vessel to commence duty until the time that they disembark. This reading is consistent not only with the industrial context for clause 10.13 but also the other words of the clause, around travel.

Travel to and From the Vessel

47. Clause 10.13 provides for marine employees on large hulled vessels deploying to remote or overseas locations to be rostered on for 31 days, to allow sufficient travel time to and from the vessel for their 27 day patrol. Read in accordance with its natural and ordinary meaning, clause 10.13 provides for a period of two days travel to and two days travel from a vessel which will undertake a 27 day patrol (thus creating a total “rostered on” period of 31 days).

48. This reading of clause 10.13 is consistent with its purpose. The purpose of clause 10.13 is clearly to establish a roster pattern for vessels being deployed to remote or overseas locations that allows for the additional travel required to reach those locations, without compromising the amount of time that marine employees are to be on patrol. It provides an exception for remote and overseas deployments, from clause of the Workplace Determination which provides a general rostering pattern for vessels (other than Cape Class, Bay Class and Southern Oceans operations vessels) of 29 days rostered off, and 27 days rostered on patrol. Clause 10.13 creates a distinct roster pattern involving a longer rostered-on period for vessels that are deployed to remote or overseas locations, to allow for the additional travel required in those deployments.

49. This purpose is apparent from the Department’s own evidence and submissions in Fair Work Commission Matter No. B2016/1232, annexed to the witness statement of Danielle Robinson.

50. In the Extract of the Witness Statement of David Leonard, annexed to the Witness Statement of Ms Robinson, Mr Leonard states:

The DIBP proposes a 29: 27 swing for other vessels, which are very large hulled vessels with significantly greater range and capability for continuous sea time. DIBP

10.12 further proposes that a roster of 31 days on and 27 days off may apply when ABFC Ocean Shield (or other similar large hulled vessels) are deployed to remote or overseas locations to compensate for the additional travel time required for crew changeover without compromising time at sea. (Emphasis added).

51. In the Extract of the Department’s submissions in Matter No. B2016/1232, annexed to the Witness Statement of Ms Robinson, the Department provides the following rationale for the 31 days on and 27 days off roster pattern for large hulled vessels:

Home Affairs seeks these patterns in order to account for the duty time required to be performed to travel to the vessel, and the duty required to complete crew changeovers. (Emphasis added).

52. The “additional travel time” and the “duty time required to be performed to travel to the vessel” envisaged by clause 10.13 is evident from the wording of the clause itself. Clause 10.13 creates a 31 day rostered on period that allows for a two day period for travel at the commencement and at the conclusion of a “27 day patrol”.

Conclusion: Consistency of Rostering Arrangements with Clause 10.13

53. With respect to travel, the Department’s current rosters provide the following arrangements for incoming crew (Crew A) and outgoing crew (Crew B):

(i) Crew A completes its travel to Christmas Island to join their vessel over the course of the first rostered on day of their 31 day “rostered on” period;

(ii) Crew A commences duty to commence at approximately 0345 on the morning of their second “rostered on” day;

(iii) Crew A continues their active duty until the evening of the second last “rostered on” day (Day 30 of their 31 day “rostered on” period), and;

(iv) Crew A complete their return travel on the last “rostered on” day, (Day 31 of their “rostered on” period), while

(v) Crew B completes its travel to Christmas Island to join its vessel on its first rostered day of its 31 day “rostered on” period;

(vi) Crew B commences duty at 0345 on the morning of its second rostered day of its 31 day rostered on period, starting with handover between it and Crew A;

(vii) Crew B then continues duty until the second last rostered day on for its 31 day rostered on period (day 30);

(viii) Crew B completes its travel home on the last day of rostered duty (Day 31).

54. That these are the current arrangements is apparent from the Statement of Agreed Facts (at paragraphs [32] – [35]). They are also described in detail in the witness statements of Adam Elder (at paragraphs [10] – [18]), Heath Jones (at paragraphs [9] – [17] and Peter Harris (at paragraphs [9] – [16]).

55. These arrangements create a roster pattern which involves one day of very extended travel, for a 29-day patrol. This is entirely inconsistent with clause 10.13, which clearly created a two-day travel period coming to and returning from a 27 day patrol.

56. Through the witness statement of Danielle Robinson, the Department refers in its evidence to some of the difficulties associated with implementing the 31 day on : 27 day off roster required by clause 10.13 of the Workplace Determination (Witness Statement of Danielle Robinson at [70]), and the different rostering models which it has considered to address these difficulties (Witness Statement of Danielle Robinson at paragraphs [71] – [95]).

57. The difficulties associated with implementing the roster pattern required by clause 10.13 of the Workplace Determination do not alleviate the Department of its obligation to comply with the Determination. For the reasons provided in these submissions, those arrangements currently do not comply with either clause 9.28 or clause 10.13 of the Workplace Determination.

Question Two

58. To achieve consistency with clauses 9.28, 10.12 and 10.13 of the Workplace Determination, the Department’s roster arrangements for its large hulled vessels would need to:

58.1. Allow for two days of travel at the beginning and at the end of the 27-day patrol (required by clause 10.13), and

58.2. Allow an overnight rest prior to the commencement of duty (required by clause 9.28).

59. A model for implementing these requirements is set out in the Witness Statement in Reply of Health Jones (at paragraphs [6] – [9]). It is a model which operates on the basis of split crewing.

Split Crewing Model

60. The proposed model set out in the witness statement in reply of Mr Jones incorporates travel in accordance with clause 10.13 and an overnight rest in accordance with clause 9.28 of the Workplace Determination and uses a split crewing model to ensure minimum manning requirements are met. In summary, the proposed model operates as follows:

60.1. Crew A and Crew B are each split into two groups (G1 and G2);

60.1 G1 Crew A travels to Perth on Day 1 of its roster. It is accommodated overnight in Perth and then travels to Christmas Island (or Cocos Island) via charter on Day 2;

60.1 G 1 Crew A then meets G1 Crew B and completes handover of the vessel. G1 Crew B then uses the same charter flight to return to Perth;

60.3. G 2 Crew A travels to Perth on Day 3 of the G 1 Crew A roster, is accommodated overnight in Perth and travels to Christmas Island (or Cocos Island) on the following day by a commercial flight;

60.3. G1 and G2 of Crew A then commence a 28 day patrol. The patrol concludes at Fremantle, where handover of the vessel to Crew B will take place;

60.4 G1 Crew B travels to Perth on Day 1 of its rostered on period, and goes straight to the vessel (at Fremantle) to commence handover with G2 of Crew A. G1 of Crew A can then depart Perth, on a commercial flight;

60.5. After the completion of a handover, G2 Crew A depart on a commercial flight.

This will be on Day 31 of their “rostered on” period.

61. Extensive additional detail of this proposed arrangements is set out in the Witness Statement in Reply of Heath Jones, in the documents attached as Annexure A to his statement.

62. The option of a roster arrangement accommodating overnight rest is discussed in the Witness Statement of Ms Robinson at paragraphs [77] – [81]. At paragraphs [79] – [80], Ms Robinson identifies that the problem with this model from the Department’s perspective as being that it would require an additional day of travel, which cannot be accommodated in the 31 day rostered on : 27 day rostered off model.

63. The additional day of travel however could be accommodated under the Workplace Determination, as an additional duty day under clause 10.35. Clause 10.35 provides for marine employees to be compensated for duty days in excess of 195 days per annum by way of an excess duty day payment. On the rostering model set out in the Witness Statement in Reply of Mr Jones, the excess duty days would be as few as one additional day per annum.

64. The Witness Statement in Reply of Peter Harris at paragraphs [12] – [15] also refers to the feasibility of a split crewing model, which allows for the travel period required by clause 10.13 and rest period required by clause 9.28 of the Workplace Determination.

Changes to the Domiciling Policy

65. At paragraphs [88] – [90] of her Witness Statement, Danielle Robinson discusses the Department’s consideration of variations to its Domiciling Policy. The CPSU does not support these variations. The Witness Statement in Reply of Adam Elder at paragraphs [13] – [14] and the Witness Statement in Reply of Peter Harris at paragraphs [12] –[15] set out the difficulties associated with changes of the type discussed by Ms Robinson in her Witness Statement. Most significantly, those difficulties include manning the large-hulled vessels with appropriately qualified crew and accommodating future changes to the manner in which large hulled vessels are deployed.”

[96] AIMPE largely adopted the submissions of the CPSU.

[97] The Department submitted that,

12. “In its published reasons relating to the making of the Determination (the Full Bench Decision)³⁶ the Full Bench at [30] cited with approval the following passage from the decision of the Full Bench of Fair Work Australia in Transport Workers' Union of Australia v Qantas Airways Limited; Q Catering Limited [2012] FWAFB 6612:

“[34] EBA7 is an appropriate starting point because it represents the package of terms the parties have previously agreed to apply, the terms under which the parties are presently operating, and the basis for the negotiations conducted by the parties. If terms have not been operating satisfactorily or if circumstances have changed such as to warrant a change, then a party seeking the change must make out a case for the change. Traditional merit considerations will be relevant. These fall generally within the concepts contained in the objects of the Act including the achievement of productivity and fairness through enterprise level collective bargaining, noting that this arbitration is in substitution for bargaining between the parties that did not result in an agreement.”

13. In making the Determination the FWC was required to determine conditions specific to marine employees including: hours of duty, minimum crewing levels, working patterns, notice period, rest periods, tactical or emergency response, sea-going commuted allowance, marine accommodation allowance, weekend work and other matters (at [469]).

14. The Department advanced a case for particular changes in respect of the ABFC Ocean Shield (and other similar large hulled vessels designated by the Secretary) deployed to remote or overseas locations, which is reflected in clause 10.13 of the Determination. The proper interpretation of clause 10.13 is now in dispute.

15. The Full Bench decided at [476] that, “we consider it appropriate to increase the annual duty day requirement for marine employees from 191 to 195 days per annum to reflect the increase in hours of work.’’ Reference to the increase in hours of work was a reference to its decision at [203] to provide that hours of work for all employees are 7 hours 30 minutes per day or 37.5 hours per week. The CPSU’s proposed determination provided for hours of work of 7 hours 21 minutes per day or 36.75 hours per week.

16. At paragraphs [480] – [482] the Full Bench stated: …

17. It is clear from paragraph [486] of the Full Bench Decision that the Full Bench was persuaded by the Department’s merit case for change to existing arrangements for the remote deployment of the ABFC Ocean Shield, and in particular for those changes to achieve cost savings from reduced reliance on contract crews and potential productivity improvements.

18. The proposal advanced by the Department to the Full Bench and the Full Bench’s reasoning in deciding to grant the clause proposed by the Department is of importance in understanding the context in which the proper interpretation of clause 10.13 of the Determination is to be ascertained.

19. ….

20. ….

21. Part 10 of the Determination deals with, ‘Conditions specific to marine employees’. When Part 10 applies, it is given primacy over the rest of the Determination by clause 10.1.

22. ….

23. It is the application and interaction of [clause 9.28 and 10.13] that is in dispute.

24. A principal issue for resolution in these proceedings is the correctness of the Unions’ contention that the introduction of the 31:27 swing in clause 10.13 of the Determination has as its purpose, the provision only of additional travel time for officers to join and leave the vessels. The Unions’ position is that crew should not spend more than 27 days on board the vessel and the remaining days should be utilised for travel only.

25. It is further alleged by the Unions that prevailing crewing arrangements infringe clause 9.28 of the Determination because crew members are not receiving sufficient periods of overnight rest following their travel on day 1 of duty before recommencing duty on day 2.

26. …

27. …

28. …

29. …

30. …

31. The CPSU (and the AIMPE which has adopted the CPSU submissions in respect of the proper interpretation) have failed to recognise an important contextual provision which must be considered by the FWC, namely clause 10.1 (in Part 10) of the Determination, which provides:

“The working arrangements and conditions in this Part apply to sea-going marine employees and temporary sea-going marine employees and displace all other provisions of this Determination to the extent of any inconsistency.”

32. The contextual significance is dealt with later in these submissions. However it is clear that paramount force is to be given to the working arrangements and conditions in Part 10 of the Determination to the extent that other provisions operate inconsistently. For that reason it is apposite to consider clause 10.13 before clause 9.28, which appears in Part 9 of the Determination.

The proper interpretation of clause 10.13

33. It is apparent from the Full Bench Decision, in particular paragraphs [481] – [482] (referred to in paragraph 16 above), that considerable weight was given to the cost savings that would result from the Department’s proposed clause 10.13 due to reduced reliance on contract crews during crew changeovers as well as potential productivity improvements. The Department emphasises the reference by the Full Bench at [482] to Mr Leonard’s evidence that a 31:27 roster pattern for the ABFC Ocean Shield would allow for crew overlap which in turn would avoid the need to use contract crews. That overlap, in operation, is set out in SAF [45] – [49].

34. It is clear that the Full Bench did not intend that the increase in rostered duty days from the existing pattern of 28:28 to a 31:27 pattern was concerned exclusively with allowing additional travel time for crew members.

35. The Full Bench expressly stated that reduced reliance on contract crews and potential productivity improvements was relevant to its decision to accept the Department’s proposed clause. That is, both the duty time required to be performed to travel to the vessels as well as the duty time required to complete crew changeover were matters directly addressed by the clause. Notably the Department had been experiencing delays in manning vessels which had resulted in patrol delays, and the Full Bench expressly referred to this: see paragraph [481] of the Full Bench Decision.

36. Thus when it adopted the following words in clause 10.13, namely “in order to afford travel to and from the vessel for a 27 day patrol’’ the Full Bench was not intending to stipulate that four days of rostered duty must be limited only to travel.

37. Such an interpretation would be erroneous because it would undermine the purpose expressed by the Full Bench (which adopted the Department’s expressed objective) to allow for crew overlap and reduce reliance on contract crews during crew changeovers as well as generate potential productivity improvements.

38. Furthermore, such an interpretation overlooks the words, “a roster of 31 days on” in clause 10.13. As the CPSU correctly identifies in its outline of submissions at [34] – [35], ‘duty day’ is defined in a way that makes no distinction between travel time and duty performed on a vessel. The CPSU’s proposed interpretation implicitly requires that four of the rostered ‘31 days on’ be rostered only as travel time. Had it been the intention of the Full Bench to limit ‘duty’ to travel duty only on four days of the roster, one would expect clear words in the Determination to that effect, because it would have involved a departure from the defined meaning of ‘duty day’. It would have been a simple matter for the Full Bench to stipulate in clause 10.13 that for 2 days either side of active patrol duty, employees will be rostered for travel time only.

39. It would also be expected that if the Full Bench had intended that four of the 31 days rostered on, were to be confined to travel time only, it would have discussed the matter in its evaluation of the “merits of the case”, because it would have known that four dedicated travel time days would not enable overlap for crew changeovers and would entrench the Department’s need to use contractors for that purpose.

40. The CPSU submission that clause 10.13 is concerned with exceptions to usual rostering should be rejected. The remote deployment of large hulled vessels was an existing means of deployment and was not ‘exceptional’ when the Determination was made by the Full Bench (SAF, [16]). Moreover as paragraph [483] of the Full Bench Decision reveals, the CPSU evidence presented to the Full Bench was to the effect that over the period of the ACPBS Agreement and the s.24 determination the ‘Ocean Shield’ performed all of its deployments at locations that may be considered remote.

41. The CPSU submission at [38] that the Department is failing to comply with clause 10.13 because it does not allow for a ‘27 day patrol’ should be rejected. Paragraph [49] of the SAF demonstrates how a 27 day patrol deployment pattern is achieved in compliance with clause 10.13.

42. The CPSU contention (at [46]) that the reference to a ‘27 day patrol’ limits the period employees can be embarked on the vessel ignores the context in which clause 10.13 operates. Paragraphs [46] to [48] of the SAF demonstrate that an overlapping period is required between the two crew. As discussed above, the intention of the Full Bench was to facilitate the overlapping arrangement without recourse to contractors.

43. The interpretation of the word ‘patrol’ that the CPSU contends for plainly cannot be sustained in the context in which it appears. The CPSU itself appears to recognise this in paragraph [43] of its outline of submissions. The substance of its submission is that the reference to ‘a 27 day patrol’ in clause 10.13 is to be equated with ‘27 duty days’. That submission runs headlong into absurdity, given that clause 10.13 stipulates for a roster of 31 (duty) days, and the term ‘duty day’ is defined in clause 10.2 to include travel days.

44. Further, paragraph [48] of the SAF, which is elaborated on by Ms Robinson in paragraphs [32]-[34] of her statement, demonstrates that the during the initial and final two days of the 31 day roster, the vessels are unavailable for operational deployment, outside of emergency situations. The Department’s purpose in bringing the incoming crew on board on the second day of their patrol is to allow for an effective 27 day patrol, and ensure that the outgoing crew can depart on time. Contrary to the claim by Mr Harris (at [13] of his reply statement), the vessel does not conduct a 29 day patrol.

The proper interpretation of clause 9.28

45. The Unions correctly submit that clause 9.28 of the Determination does not stipulate a minimum duration for the rest period for which clause 9.28 provides.

46. The Unions also submit that, ‘rest period of sufficient duration to enable overnight rest’ is meant to refer to ‘an overnight rest’. The Unions also contend at [26] for an interpretation that “overnight rest” means “for the duration of the night”. It follows, so the Unions’ argument goes, that a rest period that does not extend uninterrupted for the duration of the night, would not be an overnight rest (at [21]), and would not comply with clause 9.28.

47. The first obvious difficulty with the Union’s approach to the interpretation of clause 9.28 is it impermissibly involves creating substitutes for the actual language used.

48. Another difficulty with the Unions’ approach is that if the words, “rest period of sufficient duration to enable overnight rest” are to be equated with provision of “an overnight rest’’ there would have been no need for the words, “rest period of sufficient duration to enable…’’. Similarly, if it was intended that employees were to be afforded a rest period “for the duration of the night” the inclusion of the word “sufficient” to qualify the word “duration” would be otiose. The inclusion of the word “sufficient” strongly suggests that flexibility was intended, as distinct from a rest period of fixed duration for all employees on all occasions. The last sentence in clause 9.28 which states, “A rest period must not be longer than 24 hours”, further tells against the interpretation advanced by the Unions as it sits uncomfortably with the notion that the rest period to be provided is to me measured by “the duration of the night.”

49. A further reason to doubt that what was intended by the language of clause 9.28 was the provision of rest “for the duration of the night” is that the duration of the “night” is an uncertain touchstone, being variable depending on location and time of year.

50. ‘Overnight rest’ is not defined in the Determination. The Unions’ contention attributes very little or no significance to the words, “rest period of sufficient duration to enable…”. A rest period is not to be equated wholly with sleep, as the language in clause 9.28 makes no reference to sleep. The last sentence also makes that clear.

51. The focus of the language in clause 9.28 is on the duration of the rest period and its sufficiency to provide (i.e. enable) overnight rest, without prescribing by reference to a time of day or night what rest period will be of sufficient duration in any particular case. The sufficiency of the duration of the rest period is to be informed by the actual travelling time undertaken by the employee (the extent to which it exceeds 12 hours) and the time at which the journey undertaken in the course of the performance of the employee’s duties is completed.

52. The Department accepts in the circumstances of this dispute that employees who have undertaken a journey involving continuous travelling time of more than 12 hours on day 1 of duty, are entitled to be afforded some ‘overnight rest’ before recommencing duty on day 2 (while noting that not all of the employees have travelled more than 12 hours: SAF-4). However in the absence of any attempt in the Determination to prescribe the start or finish time of the rest period, the evident purpose of clause 9.28 will be satisfied if a sufficient period of rest during the course of the night, before re-commencing duty, is afforded to employees who have undertaken the requisite continuous period of travel on that day.

53. Clause 9.28 is directed to the individual circumstances of an employee. Clause 10.1 of the Determination has interpretative significance in that it requires that clause 9.28 be interpreted in a way that avoids inconsistency with clause 10.13. It is submitted therefore that the sufficiency of the rest period must be evaluated not only by the length of the journey undertaken by the employees and the time of completion of their journeys, but also by reference to the operational imperatives associated with the remote deployment of the large hulled vessels and the necessary crew rostering and handover arrangements described in the SAF, which are regulated by clause 10.13.

54. The FWC would strive against an interpretation of clause 9.28 that would undermine or impair the capacity of the Department to roster employees in conformity with clause 10.13 to meet the operational needs of large hulled vessels deployed to remote or overseas locations. Clause 10.1 of the Determination dictates such an approach.

55. Employees who arrive on Christmas Island on flights that are detailed in Annexures SAF-3 and SAF-4 have an opportunity for a rest period of sufficient duration to enable overnight rest before recommencing duty on day 2. ….

56. There is adequate provision for sleep during the rest period, and suitable accommodation for that purpose is provided.

57. Accordingly the FWC should conclude that the answer to Question 1, is “Yes”, and need not deal with Question 2.

Question 2

58. The Department does not propose in this outline of opening submissions to address Question 2 in detail. That is because:

(a) Question 2 arises only if the FWC concludes that the existing arrangements are not consistent with clauses 9.28 and 10.13;

(b) The answer to Question 2, if its arises, will depend upon the reasoning of the FWC in respect of Question 1; and

(c) It will be necessary for the Department to address the FWC in detail in closing submissions in relation to the evidence that the parties intend to rely upon in relation to Question 2, including the efficacy of the split crewing model sought to be advanced by the CPSU as a model for implementing what it contends are the requirements of clauses 9.28 and 10.13.

59. For the purposes of these opening submissions the Department makes the following preliminary submissions as to how the FWC would approach Question 2, should it arise.

a) First, any modification or variation must not be inconsistent with the Determination; any contrary approach would be contrary to the limitation on arbitrated outcomes available to the FWC due to s 739(5).7 This excludes alternative arrangements which require a rostering pattern that is not provided for by the Determination. For example, the rostering arrangement proposed by Mr Jones in his reply statement (at [6]) uses a 31 days on 32 days off rostering pattern. This is not provided for by the Determination. The CPSU submission at [63] does not address this.

b) Second, Question 2 asks that FWC to identify modifications or variations to existing arrangements which would bring these arrangements into compliance with the Determination (should the FWC conclude that they are not compliant). The starting point for this exercise is the existing arrangements, and variations or modifications to those arrangements should go no further than to address any non-compliance. The agreed questions do not ask the FWC to step into the shoes of the Department or ABF and re-design the rostering and deployment practices of the vessel. They also do not ask the FWC to assess the overarching merits of any rostering practices. Issues such as the location of the port used for handover should only arise if the FWC is satisfied that such a change is necessary to comply with the Determination. The FWC is certainly not required to consider whether the operational tasking or areas of operation for the vessels should be varied.

CONSIDERATION

[98] Although Articulated Question 1 asks whether the current arrangements are “consistent with clauses 9.28 and 10.13” of the 2019 Workplace Determination, I understand that question to require two separate considerations, that is to say, I am required to consider consistency with each of clause 9.28 and clause 10.13.

Consistency with clause 9.28

[99] It is appropriate to again set out clause 9.28,

“Rest periods

9.28 If an Employee:

(a) undertakes a journey in the course of the performance of their duties, and

(b) that journey involves continuous travelling time of more than 12 hours, the Employee will be entitled to a paid rest period of sufficient duration to enable overnight rest before recommencing duty. A rest period must not be longer than 24 hours.

[100] The phrase “of sufficient duration to enable overnight rest” is not defined in the 2019 Workplace Determination. Ideally, the Full Bench should not have used a subjective term like “sufficient”. We could, and should, have been more precise. For example, if clause 9.28 read, “the Employee will be entitled to a paid rest period of 7 hours before recommencing duty” it would have made the task of determining whether current rostering arrangements are consistent with the 2019 Workplace Determination much easier.

[101] Clause 9.28 stipulates that the paid “rest period must not be longer than 24 hours”. That is to say, there is an express maximum period of rest. When the parties come to negotiate an enterprise agreement to replace the 2019 Workplace Determination it is open to them to amend clause 9.28 so that it is more precise in its terms in relation to the minimum duration for a rest period.

[102] However, to paraphrase Madgwick J in Kucks, it is “justifiable to read [clause 9.28] to give effect to its evident purposes, having regard to [relevant industrial] context.” Further, a meaning which avoids “injustice may reasonably be strained for.” In Wanneroo it was observed that “there is a long tradition of generous construction over a strictly literal approach…”

[103] The relevant context is that many employees will have travelled from interstate home Locations to Perth and then on to Christmas Island (XCH). This is an industrial reality from which the interpretation of clause 9.28 cannot be divorced.

[104] According to Annexure SAF-2, 79.5% of crew will have commenced travel on the East coast of Australia, travelled across the country and then had to take another 3 ½ flight in respect of the last 2,608 kms to XCH. In addition to travel time, their journey requires transit time and an adjustment to a different time zone. It is common ground that “at least” 12 hours travel is required. Consequently, clause 9.28 is enlivened.

[105] Also, because, in the present case, clause 9.28 uses “ordinary and well-understood words” it is necessary “to accord [those words] … their ordinary and usual meaning.” The Macquarie Dictionary defines relevant words in clause 9.28 as follows:

•  “sufficient” means, “that suffices; enough or adequate”.

•  “to enable” means, “to make possible or easy”.

•  “overnight”, means, “of or relating to the previous evening”.

•  “rest” means, “refreshing ease or inactivity after exertion or labour”, “a pause or interval”.

[106] “Sufficient” does not mean “preferred” or “ideal”. The duration of the rest period need only be adequate.

[107] The Unions contended that a rest period “interrupted in the middle of the night (for example, at 0300) would not be an “overnight rest” in the natural and ordinary meaning of those words.” I disagree. The use of the phrase “overnight” only signifies that the rest must occur “during the night”. It does not mean that it must be for the entirety of the night. If the rest was for the entirety of the night, then the use of phrase “of sufficient duration” would be redundant. Meaning must be given to those words.

[108] The use of the word “rest” is also noteworthy. The Full Bench did not use the word “sleep”. A person can rest without sleeping.

[109] However, after “at least” 12 hours of travel and moving across time-zones, it is not unreasonable to conclude that some of the necessary inactivity will involve sleep. Sleep is essential to health for a whole range of reasons, including fatigue management. It is recommended that most adults receive 7 hours of sleep per night.³⁷ Getting fewer than six hours of sleep a night on a regular basis is considered inadequate to sustain health.

[110] This is consistent with Australian Border Force’s own “Work Instruction SM 1002 – Fatigue Management and Recording of Hours Aboard” document³⁸ which identifies in Annex D – Fatigue Control Measures, which identifies the following control,

•  “Provide fatigued personnel time for restorative sleep (minimum of 6 hours).”

[111] I also consider it relevant context that a number of industrial awards require breaks between shifts of between 8 – 10 hours.

[112] So, while there is no substitute for the actual words used in the clause, it is apparent that the purpose of clause 9.28 is to ensure that rostering arrangements will result in enough or adequate inactivity (pause or interval) after the employees’ journey to Christmas Island such that employees feel refreshed before recommencing duty.

[113] That re-casting of clause 9.28 remains somewhat subjective. Different people require varying amounts of rest and clause 9.28 is directed at individual circumstances of employees.

[114] However, for present purpose, it seems to me that a “rest period of sufficient duration” is likely between 7 – 10 hours. This is a practical construction of clause 9.28.

[115] Further, the interpretation above does not undermine or impair the capacity of the Department to roster employees consistent with clause 10.13 (which has primacy).

[116] Noting that crew start their journey to the LHV at around 0345 hours under Arrangement 1, in order for them to have a “rest period of sufficient duration” (7 hours), they must be at their accommodation on Christmas Island by 2045 hours.

[117] The CPSU’s evidence in this matter is as follows:

[118] The Department’s contention (based on SAF-3 and SAF-4 to the Statement of Agreed facts), was that:

(a) under Arrangement 1 — employees arrive at their accommodation on Christmas Island by 6pm local time (SAF-4). They are not required to recommence duty until 3:45am the next morning, 9 hours and 45 minutes later (SAF at [54]);

(b) under Arrangement 2 — employees arrive on the vessel 5:30pm local time (SAF at [62]). As Ms Robinson explains in [38]– [40] of her statement, they are not assigned any duties and are directed to rest. They are not required to recommence duty until 4:30am the next morning (at the earliest), 11 hours later (SAF at [63]).

[119] Noting my observation above that, “for present purpose, it seems to me that a “rest period of sufficient duration” is likely between 7 – 10 hours,” the evidence in this matter supports a finding that the current rostering arrangements are consistent with clause 9.28.

[120] However, my finding in this matter does not prevent the crew and the Unions from pursuing the matter as a workplace, health and safety matter in another forum.

Consistency with clause 10.13

[121] It is appropriate to again set out clause 10.13,

Working patterns

….

10.13 Where ABFC Ocean Shield (or other similar large hulled vessels designated by the Secretary for the purposes of this clause) are deployed to remote or overseas locations, a roster of 31 days on and 27 days off may apply in order to afford travel to and from the vessel for a 27 day patrol.”

[122] Before progressing, it is necessary to understand that under clause 10.2 of the 2019 Workplace Determination a,

“Duty day” is a day on which work is performed and includes, but is not limited to, duty performed on a Sea-going vessel (sea duty), travel days, administrative support days, training days that attract sea-going commuted allowance, shore-based duty and days in port.”

[123] It is common ground that under the 31:27 day arrangement, crew have 27 days off. The dispute is about what comprises the “31 days on”.

[124] Clause 10.13 is an exception to the usual rostering arrangements provided for in clause 10.12 of the 2019 Workplace Determination. It relates only to LHVs “deployed to remote or overseas locations.”

[125] The exception provides for additional travel time because of that deployment.

[126] In summary the Unions contend that:

a) because clause 10.13 states that the 31:27 day arrangement is permissible “in order to afford travel to and from the vessel for a 27 day patrol”,

b) it must follow that “31 days on” less “a 27 day patrol” leaves 4 days for travel (i.e. 2 days each side of the 27 day patrol).

[127] It seems a logical mathematical conclusion. However, that is not what the 2019 Workplace Determination expressly provides for. The reference to “31 days on” makes no distinction between travel time and duty time. If the Full Bench had intended that 2 days in advance and 2 days after a 27 day patrol could only be used for travel, it would have decided so in clear terms. The use of the phrase “in order to afford travel” does not mean all of the time is exclusively for travel.

[128] If less of the “31 days on” are used for travel and other non-patrol activities, the more time the Department can have the LHV on patrol. The Unions contend that a rostering arrangement that provides for a patrol that is longer than 27 days is inconsistent with clause 10.13.

[129] The Unions advanced an argument that “the term ‘patrol’ should be read as meaning a period in which a marine employee is rostered for duty”. However, that is also not what the 2019 Workplace Determination says.

[130] Because the word “patrol” is not defined in the 2019 Workplace Determination it too should be given its natural and ordinary meaning,⁴³

•  1.  to go the rounds in a camp or garrison, as a guard.

•  2.  to traverse a particular district, as a police officer.

•  3.  to go about in or traverse for the purpose of guarding or protecting.

[131] Therefore, the rostered period encompasses all duty time (including travel time), but not necessarily all patrol time. Different terms are used in clause 10.13 and they should, according to ordinary rules of construction, be given different meanings. It would be wrong to equate the word “patrol” with “work” or “duty”.

[132] The “27 day patrol” is a lesser period than the “31 days on”. The “31 days on” includes travel time, hand-over time and preparatory work (of the type described by the Unions’ witnesses) in advance of the actual “27 day patrol” as that phrase must naturally and ordinarily be understood. Not all duty time will be patrol time.

[133] For these reasons I reject the construction advanced by the Unions that,

“46. … the word “patrol” should be interpreted as referring to the period in which marine employees are working on board their vessels, from boarding their vessel for handover to disembarking the vessel for departure.

A “27 day patrol” for the purposes of clause 10.13 is therefore a 27 day period in which marine employees are required to work, from the time that they board their vessel to commence duty until the time that they disembark. …

[134] What is also necessary “for a 27 day patrol” is the travel arrangements that will allow for Crew A and Crew B to have a face-to-face handover. That overlap is an operational need. This was recognised by the Full Bench. It facilitates the patrol. The 31:27 arrangements (above), therefore, facilitate the overlap and the patrol. Four dedicated travel days would not facilitate the overlap needed for operational reasons. This is another reason for rejecting the Unions’ construction.

[135] I am satisfied that the Statement of Agreed Facts establishes that a 27 day patrol pattern is achieved. Consequently, I find that the rostering arrangements are consistent with clause 10.13.

CONCLUSION

[136] For the reasons set out above, the Commission, as presently constituted, answers the Articulated Questions as follows:

Question 1: Are the existing arrangements* implemented by the Department for rostering the ABFC Ocean Shield (or other similar large hulled vessels including the ABFC Ocean Protector) consistent with clauses 9.28, and 10.13 of the Department of Home Affairs Workplace Determination 2019 (WD)?

Answer: Yes.

Question 2: If the answer to question 1 is ‘no’, what modification or variation to the Department’s existing arrangements would bring these arrangements into compliance with clauses 9.28, 10.12 and 10.13 of the 2019 Workplace Determination?

Answer: Question 2 is not enlivened.

COMMISSIONER

Appearances:

Ms Annette van Gent, Industrial Officer, for the CPSU.

Mr Michael Bakhaazi, Director of Government Relations & National Legal Director, for AIMPE.

Mr Simon Meehan of counsel, instructed by Mr Stephen Reeves, Senior Lawyer, Australian Government Solicitor for the Commonwealth of Australia (represented by the Department of Home Affairs)

Hearing details:

Sydney, 8 September 2020 (via video)

Printed by authority of the Commonwealth Government Printer

<PR726059>

1 AG501682.

 2   Transcript PN 724-238.

3 Clause 12.6(b)(i), the 2019 Workplace Determination.

4 [2019] FWCFB 143.

5 AG501682 PR704687

6 Clause 1.3, the 2019 Workplace Determination.

7 Ibid

8 Clause 1.2, the 2019 Workplace Determination.

9 As that term is defined in the registered rules of AIMPE.

10 A redacted version of the Ocean Shield VMP was Annexure SAF-1 to the Statement of Agreed Facts (and Exhibit 1b in the proceeding).

11 Transportee accommodation is separate, so crew accommodation is not affected by the number of persons detained on the vessel.

12 Transportee accommodation is separate, so crew accommodation is not affected by the number of persons detained on the vessel.

13 Annexure SAF-2 to the Statement of Agreed Facts was a table of the cities which are the ‘home Locations’ of the Regular Crew Members, and how many Regular Crew Member have their ‘home Location’ at that city.

14 Annexure SAF-3 to the Statement of Agreed Facts was a summary of the details of the commercial flights from Perth to Christmas Island which were available in February 2020.

15 Annexure SAF-4 to the Statement of Agreed facts was a summary of the travel arrangements used from each of the other home location airports to Christmas Island, and from Christmas Island to each home location airports for crew handovers between Ocean Shield Patrols 06 and 07 (23-24 December 2019), and Ocean Protector Patrols 06 and 07 (2-3 January 2020).

16 Variations to normal rostering to meet a Tactical response, Emergency response or Strategic response are permitted by clauses 10.27 to 10.29. The parties agree that this dispute is only concerned with circumstances that fall outside the application of clauses 10.27–10.29.

17 Subject to any missed flight connections

18 Subject to any missed flight connections

19 Subject to any missed flight connections

20 see SAF-4 for a sample of typical flight arrangements.

21 see SAF-4 for a sample of arrival times

22 Subject to any missed flight connections

23 Subject to any missed flight connections

24 Subject to any missed flight connections

25 In the Statement of Agreed Facts, it does not say that this occurs on Day 2, however, it seems that must be the case. If that is the case, it is difficult to understand how the handover occurs if the alternative crew depart on Day 30.

26 The Determination under subsection 24(3)— Non-SES employees in the Marine Unit to be moved to the Department of Immigration and Border Protection by determination under paragraph 72(1)(a) of the Public Service Act 1999 on 1 July 2015 (F2018C00547).

27 As defined by clause 7.1 of that Determination.

28 [2014] FWCFB 7447 (‘Golden Cockerel’).

29 [2017] FWCFB 3005 (‘Berri’).

30 Kucks v CSR Limited (1996) 66 IR 182 at 184.

31 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440.

32 [2015] FCA 1477.

33 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426.

34 Macquarie Dictionary 2020 Online Edition, accessible at https://macquariedictionary.com.au

35 Macquarie Dictionary, 2020 Online Edition, accessible at https://macquairedictionary.com.au

36 Commonwealth of Australia as represented by the Department of Home Affairs [2019] FWCFB 143

37 https://www.cdc.gov/sleep/about_sleep/how_much_sleep.html also https://www.sleephealthfoundation.org.au/files/pdfs/Sleep-Needs-Across-Lifespan.pdf

38 Annexure DR-2 to the Witness Statement of Dannielle Robinson (Exhibit 8 in the proceedings).

39 Paragraphs 10 – 17 Exhibit 4a.

40 Paragraphs 11 – 22 Exhibit 4c.

41 Paragraphs 10 – 22 Exhibit 4d.

 42   Paragraphs 10 – 17 Exhibit 4g.

43 https://www.macquariedictionary.com.au/features/word/search/?search_word_type=Dictionary&word=patrol