| [2022] FWCFB 120 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Australian Maritime Officers' Union
v
Shell Australia FLNG Pty Ltd & Anor
(C2022/1353)
DEPUTY PRESIDENT MILLHOUSE |
MELBOURNE, 5 JULY 2022 |
Appeal against decision [2022] FWC 228 of Deputy President Binet at Perth on 4 February 2022 in matter number B2021/441
[1] The Australian Maritime Officers’ Union (AMOU) has applied pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal and if granted, appeals a decision of Deputy President Binet dated 4 February 2022 (decision).
[2] The decision concerns an application by the AMOU for bargaining orders pursuant to s 229 of the Act to compel Shell Australia FLNG Pty Ltd (Shell) to recognise it as a bargaining representative in the context of its negotiations with the second respondent, the Australian Workers’ Union (AWU), for a proposed enterprise agreement. The AMOU advanced its application by asserting it has a member who will be covered by the proposed enterprise agreement.
[3] In the decision, the Deputy President dismissed the AMOU’s application on four bases, which the AMOU now challenges on appeal. The principal issue in the appeal is the correct construction of the Rules of The Australian Maritime Officers' Union (AMOU Rules) and in particular, Rule 6, Part 1.
[4] Shell operates the Prelude Floating Liquified Natural Gas platform (Prelude). There is currently no enterprise agreement covering the workforce engaged by Shell on the Prelude. 1
[5] On or around 14 December 2020, Shell issued a Notice of Employee Representational Rights to its employees on the Prelude, 2 giving notice that it was bargaining in relation to a enterprise agreement “which is proposed to cover employees that are appointed to an offshore operational classification in the areas of Production, Maintenance and Service” (proposed agreement).3
[6] Since on or around 17 February 2021, Shell has been bargaining with the AWU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in relation to the proposed agreement.
[7] In January 2021, the AMOU gave Shell notice of its interest as a bargaining representative on the basis that it had a member who would be covered by the proposed agreement, Mr Brendon Sticpewich. Shell refused this request as it did not consider Mr Sticpewich to be eligible for membership of the AMOU. 4 From February 2021 to the time the application was filed in the Commission on 18 June 2021, the AMOU and Shell corresponded and held six meetings (with an additional meeting held after the AMOU applied to the Commission) but failed to reach agreement as to the AMOU’s eligibility as a bargaining representative for the proposed agreement.5
[8] Mr Sticpewich is employed by Shell as a Lead Production Technician, 6 a title which appears to be used interchangeably with Production Specialist. Mr Sticpewich holds a Master (Unlimited) Certificate of Competency issued by Australian Maritime Safety Authority (AMSA) and was a member of the AMOU at the notification time.7 Mr Sticpewich has worked with the Prelude since it was first built in Korea in 2014.8
[9] The proceeding before the Deputy President concerned an application by the AMOU for bargaining orders. By way of an application under s 229 of the Act, a bargaining representative for a proposed enterprise agreement may apply to the Commission for a bargaining order. Pursuant to s 176(3) of the Act, an employee organisation cannot be a bargaining representative unless the organisation is entitled to represent the industrial interests of the employee in relation to the work that will be performed under the agreement.
[10] The Act does not expressly define when an employee organisation is entitled to represent the industrial interests of employees. It has been held that the entitlement only arises when the employee organisation’s eligibility rules permit it to enrol the relevant employees as members. 9
[11] The question to be resolved before the Deputy President was whether the AMOU is entitled to represent Mr Sticpewich’s industrial interests in relation to work that will be performed by him under the proposed agreement.
[12] The issues raised on appeal concerns the proper construction of the AMOU Rules as a necessary step in this statutory inquiry.
[13] The relevant part of Rule 6, Part 1 of the AMOU Rules (Eligibility Rule) 10 provides that the AMOU has coverage of:
“Members of Mercantile Marine and dependent services possessed of certificates of competency issued or recognised by the Commonwealth of Australia, or any State thereof, the Board of Trade, or by any British possession or dependency, or possessed of any qualifications entitling him to undertake any duty connected with the navigation of vessels, may be elected as members”
[14] It is not in dispute that the Eligibility Rule provides two bases for membership of the AMOU. The first limb turns on whether a person is a member of the “Mercantile Marine,” or alternatively, a member of “dependent services.” The second limb concerns the possession of a relevant qualification, being a “certificate of competency” or “any qualifications entitling him to undertake any duty connected with the navigation of vessels” (qualification requirements).
[15] The decision relevantly commences with the Deputy President making a range of findings about the Prelude which are not the subject of direct challenge in this appeal. 11 These findings included:
(a) The Prelude houses a floating liquefied natural gas facility which:
a. extracts, liquefies and stores gas at sea; and
b. supplies ships with natural gas and by-products for transport to market.
(b) The Prelude is 488m long and 74m wide.
(c) During operations, a team of between 140 to 320 people work on board the Prelude.
(d) The Prelude was built in South Korea and was towed to its current location by three oceangoing tugs. The designated lead tug controlled the speed and direction in which the Prelude travelled.
(e) The Prelude is permanently moored approximately 475km north-northeast of Broome in Western Australia. The Prelude is moored to the ocean floor by four groups of mooring chains. Each mooring chain is held to the sea floor by piles.
(f) While permanently connected to the seabed through a dedicated turret mooring system, the Prelude is designed to pivot/rotate according to wind and sea conditions while it remains fixed to the sea floor. This movement is known as heading changes.
(g) The Prelude is exposed to, and has been designed to withstand, severe weather and remain in the area where it is moored even in the most extreme cyclonic conditions.
(h) The Prelude does not have a dynamic positioning system to hold it in place. The Prelude is held in place by the mooring chains.
(i) The evidence of Mr Kaighin is that the Prelude cannot navigate or move itself from one place to another. It has no equipment required for navigation, such as a navigational bridge, navigational radar and collision avoidance, and does not have a team as required for navigation, such as a bridge team or captain. The Prelude has a radar but this radar is only to detect vessels that come close to the Prelude, not for navigation.
(j) The Prelude is supported by three infield support vessels, which provide security, surveillance, emergency standby and product transfer support. Other multi-purpose supply vessels provide additional transport and logistical support out of Darwin.
(k) In accordance with the Shipping Registration Act 1981 (Cth), the Prelude was registered with the AMSA as a Barge in 2017.
[16] The Deputy President also made findings about Mr Sticpewich’s role, qualifications and employment with Shell, 12 the role of Lead Production Technicians on the Prelude,13 and the history of the bargaining for the proposed agreement.14
[17] The Deputy President proceeded to consider whether the AMOU was entitled to represent the industrial interests of Mr Sticpewich in relation to work which would be performed by him under the proposed agreement. The Deputy President identified that the question was to be resolved on the proper construction of the Eligibility Rule.
[18] After summarising the principles applicable to the interpretation of union eligibility rules, 15 the Deputy President identified that the phrase “member of the Mercantile Marine or dependent services”16 as used in the Eligibility Rule was considered by the Full Bench of the Western Australian Industrial Commission (WAIG) in Merchant Services Guild of Australia, Western Australian Branch, Union of Workers v Fisheries Department17 (Fisheries). The Deputy President stated as follows:
[76] In that decision the Full Bench held that to be eligible for membership a person must be an officer or crew member of a vessel of a nation engaged in the interchange of goods or commodities on a large scale between different countries or different parts of the same country. 18
(footnotes omitted)
[19] The Deputy President turned to consider whether the Prelude is a ship or a vessel by reference to historical admiralty authorities and concluded that the Prelude is neither. 19 The Deputy President considered that the primary purpose of the Prelude is to extract, refine and store hydrocarbons and it is not used to transport goods or people from one geographic location to another. The Deputy President concluded that it is in effect a refinery located at sea from and to which goods and people are transported.20 The registration of the Prelude as a barge under the Shipping Registration Act 1981 (Cth), or its recording on the Equasis international shipping database as an “Offshore Processing Ship,” did not alter this conclusion.21
[20] The Deputy President then considered whether the Prelude is engaged in the interchange of goods and commodities, 22 on the basis that the “key characteristic of the mercantile marine is that it uses ships to transport goods for commercial purposes.”23 The Deputy President concluded that the Prelude does not move or carry goods from one geographic location to another and is therefore not engaged as such.24
[21] The Deputy President next considered whether the Prelude is a “dependant service” but found that it is not. Rather, it was found that the “Mercantile Marine” provides a service to the Prelude’s operations in the industry of oil and gas production. 25
[22] As to the qualification requirements of the Eligibility Rule, the Deputy President considered that the on the proper construction of the Eligibility Rule, a person was required to use a relevant qualification for duties connected with the navigation of vessels. 26 The Deputy President found that Mr Sticpewich holds a relevant certificate of competency but was not satisfied that he was required to do so to undertake the duties of his role,27 nor did he undertake any duty in connection with the navigation of vessels.28
[23] The Deputy President concluded that even if she were satisfied that the AMOU was entitled to apply for a bargaining order, she would not be inclined to grant such an order because Shell is open to bargaining if the AMOU is found to be a bargaining representative. 29
[24] The AMOU appeals the Deputy President’s decision on five bases.
[25] Appeal ground one of the AMOU’s notice of appeal concerns the Deputy President’s conclusion that the AMOU was not a bargaining representative because it was not entitled to represent Mr Sticpewich’s industrial interests. It is suggested that ground one identifies the erroneous conclusion and grounds two to four identify the specific errors which led to that conclusion.
[26] Appeal ground two concerns the finding that Mr Sticpewich was not a member of the “Mercantile Marine” by virtue of his employment on the Prelude, which the AMOU contends was in error.
[27] Alternatively, by appeal ground three it is contended that the Deputy President erred in finding that Mr Sticpewich was not a member of a “dependant service” (being an alternative basis for a finding of membership of the AMOU).
[28] Appeal ground four concerns the qualification requirements of the Eligibility Rule. It is said that the Deputy President erred in finding that the Eligibility Rule required Mr Sticpewich to use his qualification to “undertake any duty connected with the navigation of vessels,” rather than simply possess a relevant certificate or qualification.
[29] The AMOU accepts that the error complained of in appeal ground one will not be established unless it is successful in either appeal grounds two and four, or three and four.
[30] Appeal ground five concerns the Deputy President’s decision not to issue a bargaining order. This ground only falls to be determined if the AMOU is successful on the question of whether it was a bargaining representative.
[31] This appeal gives rise to questions concerning the construction the AMOU’s Eligibility Rule. Further, the appeal raises issues with the Commission’s process of textual construction of instruments generally, the correctness of which is in the public interest. We therefore grant permission to appeal.
[32] The appeal concerns the question of whether, on the proper construction of the Eligibility Rule, the AMOU has the capacity to represent the industrial interests of Mr Sticpewich and thereby to act as his bargaining representative in negotiations for the proposed agreement. That is a question with only one correct answer. As observed by the Full Court in O’Connor v Setka: 30
[79] In so far as the appeal concerns the proper construction of the Union’s Rules, it is not necessary for the appellant to establish error in the reasons of the Judge. That is because the Rules can have only one proper construction and, if this Court comes to a conclusion which differs from that of the Judge, that will be sufficient of itself to establish error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [25].
[33] Accordingly, it is unnecessary for the AMOU to identify specific error in the Deputy President’s reasons. If we consider that the correct answer to the question is other than that determined by the Deputy President, that will be sufficient to establish error.
[34] The principles applicable to the interpretation of union eligibility rules are regarded as “well settled” 31 and were summarised by the Full Bench in The Australian Manufacturing Workers’ Union v Resmed Limited.32 We see no need to set this passage out in full. It suffices to note that eligibility rules are to be construed taking a generous, non-restrictive or liberal approach.33 Notwithstanding that, the words are to be construed objectively,34 in harmony with the rest of the instrument and not read in isolation so as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended.
[35] Union eligibility rules typically fall within two categories: industry rules (which focus upon the substantial character of the employer’s business or enterprise), and vocational rules (which focus upon the trade, craft, or calling of the relevant employee). 35 Notwithstanding these recognised categories, the task of the Commission is to properly construe the rule in question.
[36] In determining whether an employer falls within the scope of an industry rule, the Commission examines as a question of fact the substantial character of the employer’s enterprise as a whole. The enterprise of an employer can have more than one character and be in more than one industry and the character of an employer’s enterprise must be substantial before it can ground a conclusion that the enterprise is in a particular industry. 36
[37] In the assessment of whether an employee falls within the scope of a vocational rule, a Court considers the employee’s “primary function” by “looking at what he or she does in the context of the employer’s organisation of work.” 37
Appeal ground two
[38] We commence with consideration of appeal ground two, being the allegation that the Deputy President erred in finding that Mr Sticpewich was not a member of the “Mercantile Marine” by reason of his employment on the Prelude.
[39] In the decision, the Deputy President approached her consideration of whether Mr Sticpewich was a member of “Mercantile Marine” by reference to Fisheries, 38 which involved consideration of the same phrase of the AMOU Rules, being “[m]embers of Mercantile Marine and dependent services…” As to the definition of “Mercantile Marine,” the President of the WAIG in Fisheries said as follows (with which the other Members agreed):
““Mercantile Marine” is defined by the Macquarie Dictionary (3rd Edition), at page 1346, as synonymous with the Merchant Navy, which is itself defined as:-
“1. the vessels of a nation engaged in commerce.
2. the officers and crews of merchant vessels.”
In the Shorter Oxford Dictionary (3rd Edition), at page 1308, the Mercantile Marine is defined as:-
“the shipping collectively employed in commerce”
The crucial phrase in Rule 3 is “Members of the Mercantile Marine and dependent services”. Accordingly, to be eligible for membership, within the meaning of that phrase, one must be a member of the Mercantile Marine, that is, of the Merchant Navy, “1. the vessels of a nation engaged in commerce 2. the officers and crews of a merchant vessel” (see Macquarie Dictionary (op cit) at page 1347 and see also the Shorter Oxford Dictionary definition (op cit) at page 1308).
A vital component of the definition of the Merchant Navy (Mercantile Marine) is the word “commerce”…
In my opinion, in the context of the phrase “the Mercantile Marine” or “the Merchant Navy”, the definition of “commerce” contained in the Macquarie Dictionary (3rd Edition) at page 442 is more apposite. There is one apposite definition. That is:-
“interchange of goods or commodities, especially on a large scale between different countries (foreign commerce) or between different parts of the same country”
…”
[40] The Deputy President distilled the passage above in the following way:
[75] The meaning of the phrase ‘member of the Mercantile Marine or dependent services’ was considered by the Full Bench of the Western Australian Industrial Commission in [Fisheries] for the purposes of determining eligibility for membership of the State registered union.
[76] In [Fisheries] the Full Bench held that to be eligible for membership a person must be an officer or crew member of a vessel of a nation engaged in the interchange of goods or commodities on a large scale between different countries or different parts of the same country. 39
[41] As is apparent from [76] of the decision, the Deputy President amalgamated Fisheries’ dictionary definitions of “Mercantile Marine” and “commerce.” On a fair reading of Fisheries, the WAIG did not confine the term “Mercantile Marine” in this manner. Fisheries sets out three different dictionary definitions of the term “Mercantile Marine” to find a “vital component” of the definition is the word “commerce.” There is no indication that the WAIG supported amalgamating the definitions.
[42] The AMOU submits that the Deputy President’s summary at [76] of the decision is not entirely accurate. For the reasons stated, we agree. However, we do not consider this to be significant in the disposition of the appeal. This is because we regard the process of construction of the term “Mercantile Marine” in Fisheries to be erroneous.
[43] In its construction of the term, the WAIG limited its consideration to three dictionary definitions and seemingly only applied the definitions derived from the Macquarie Dictionary to its consideration of the facts. 40 The Oxford Dictionary definition appears only to have been relied on to derive the “vital component” of “commerce.”41 However, we do not consider that the meaning of the term “Mercantile Marine” is understood by the separate consideration or an amalgamation of any one or two or all three of the dictionary definitions of “Mercantile Marine” and a separate consideration of the dictionary definition of “commerce.” 42 Following such an approach is apt to lead to error.
[44] In the application before us, the Deputy President correctly identified the question to be whether Mr Sticpewich is a member of the “Mercantile Marine.” However, in determining this question, the Deputy President confined her consideration to whether:
(a) the Prelude is a “vessel;” and
(b) the Prelude is “engaged in the interchange of goods and commodities” as an application of the definition of “commerce” identified in Fisheries. 43
[45] For the reasons that follow, we regard this approach to be erroneous.
[46] While the dictionary is a useful tool in the process of construction, it is not the only source of meaning and can fail to capture all the shades of meaning in a term. 44 Dictionaries can illustrate usage in context, “but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.”45 The construction of words found in a dictionary definition rather than the term itself is, in a sense, a process of reconstruction such that the natural, ordinary or industrial meaning of the term in the text may be artificially altered.
[47] The correct approach is to construe the words in the context in which they appear and in the context of the rules as a whole, including their history. When considering the ordinary meaning of the words used, that meaning can be informed but not replaced by the definitions contained in various dictionaries.
[48] In this application, it is the construction of the term “Mercantile Marine” that determines what type of vessel (or otherwise) falls within the scope of the term, and how that vessel (or otherwise) is to be identified, not the other way around. Similarly, it is the construction of the term “Mercantile Marine” that determines the element of commerce, not the construction of “commerce” which determines what activity the “Mercantile Marine” undertakes.
[49] Before the Deputy President, the parties were in dispute as to the extent to which reliance could be placed upon (a) dictionary definitions to understand the meaning of “Mercantile Marine,” and (b) the decision in Fisheries.
(a) The position advanced by the AMOU was that “Mercantile Marine” means vessels engaged in commerce 46 and it relied upon the decision in Fisheries. It also said that Shell’s reliance upon dictionary definitions of the term “Mercantile Marine” was misplaced and should not be used in lieu of construing the term used in the document itself.47 Despite this however, we observe that the AMOU’s first written submissions and its oral submissions at first instance contended that the Prelude was a “vessel” and that it was “engaged in commerce” putting constructions of those elements in support.48
(b) Shell’s position was that Fisheries must be distinguished as the key issue there was whether government employees could be engaged in commerce, which is not relevant here. As there are no other authorities directly on point, it submitted that the Commission can be guided by dictionary definitions to understand the term “Mercantile Marine.” It said that the AMOU criticised this approach, and yet relied upon Fisheries which itself relies heavily on dictionary definitions. Shell also considered that the dictionary definitions could be satisfied by asking if the Prelude is a “ship” or a “vessel” and it put forward a number of decisions of the courts which deal with those definitions in various contexts to suggest that the Prelude is not a ship or a vessel. 49
(c) The AWU’s position was that Shell is not a member of the “Mercantile Marine” or the shipping industry. It submitted that the AMOU’s construction of the term would mean that any person performing work on the Prelude would be eligible for membership (based solely on holding a certificate of competency) despite not being connected to the shipping industry. 50 It was also contended that whether the Prelude is a vessel is irrelevant if the AMOU does not persuade the Commission that the Prelude forms part of the mercantile marine industry. In any event, the AWU considered that the features of the Prelude identified by the AMOU were insufficient to establish that it is a vessel.51
[50] In the appeal before us, the structure of the parties’ submissions with respect to appeal ground two raise the following two questions:
(a) was the Deputy President correct to find that the Prelude was not a “vessel?”; and
(b) was the Deputy President correct to find that the Prelude was not “engaged in commerce?”
[51] For the reasons stated, we do not consider it appropriate to engage with the issue in this manner. We do, however, make the following observations in relation to the AMOU’s submissions concerning appeal ground two for completeness:
(a) The AMOU submits that “the words Mercantile Marine should… be given their natural and ordinary meaning.” 52 However, the AMOU suggests that this can be achieved in part by asking whether the Prelude could be described in the ordinary sense as a vessel.53 We reject this approach, which is also a process of construction directed to the words found in a dictionary definition of a term rather than the term itself.
(b) The AMOU submits that the ordinary meaning of “Mercantile Marine” seeks to draw a distinction between vessels used in commerce and other vessels used in warfare, governmental services, research or pleasure.54 This contention was not pressed at hearing.55 To the extent the argument is relied upon, the “commerce” element of “Mercantile Marine” is not satisfied simply by non-engagement in other activities.
(c) The AMOU also makes submissions in relation to the dictionary definition of “commerce” as identified in Fisheries. It says the Prelude exchanges in a commodity by extracting LNG from the seabed and is therefore engaged in commerce. 56 Further, the AMOU dedicated a portion of its oral argument to addressing the word “especially” in the dictionary definition of “commerce” relied on in Fisheries. Both these arguments attempt to apply a construction of a term not in the text but rather in the dictionary defection of a term in the text. In any event, these arguments are not connected to the Deputy President’s dispositive reasons. The Deputy President did not decide the Prelude was not engaged in activity on a sufficiently large scale so as to meet the definition of “commerce.” Rather, the Deputy President concluded that the Prelude was not engaged in the interchange of goods and commodities at all.
(d) To the extent this represents a different argument, the AMOU also submits that the Prelude extracts a commodity, refines it and transfers it for “commercial gain” and as such “there can be no serious argument that it was not engaged in commerce.” 57 We consider this to reflect the same erroneous approach but replacing the element of commerce in the dictionary definition of “Mercantile Marine” with some notion of profit-orientation. “Commerce” and “commercial gain” represent entirely different concepts and a view to profit is not itself commerce.58 It is observed that the AMOU’s use of “commercial activity” and “profit” before the Deputy President,59 and both “commercial activity” and “commercial gain” on appeal,60 seemingly as a reference to profit-orientation, do not assist in the resolution of the matters arising in appeal ground two.
Is Mr Sticpewich a “Member of Mercantile Marine” on the proper construction of the Eligibility Rule
[52] Against these matters, we turn now to the construction of the term “Mercantile Marine” in the Eligibility Rule. The term “Mercantile Marine” is synonymous with “Merchant Navy.” Aside from the use of the term in the Eligibility Rule, the terms “Mercantile Marine,” “Merchant Navy” or other related phrases like “merchant vessel” and “merchant ship” are not used in the AMOU Rules.
[53] The parties’ submissions concerning appeal ground two did not address the term “Mercantile Marine” outside the confines of the dictionary definition set out in Fisheries, being the following:
(a) the vessels of a nation engaged in commerce;
(b) the officers and crews of merchant vessels; and
(c) the shipping collectively employed in commerce. 61
[54] However, in the proceedings before the Deputy President, Shell also relied upon contemporary definitions of the terms “Mercantile Marine” and “Merchant Navy,” reproduced as follows: 62
Mercantile marine is defined as:
(a) Merchant Navy, with “Merchant Navy” defined as the ships or crew involved in a nation’s commercial shipping in the Collins Dictionary. 63
(b) Merchant Navy, with “Merchant Navy” defined as country’s ships that carry goods, not soldiers and weapons in the MacMillan Dictionary. 64
(c) A country’s ships that carry goods and are not used for military purposes in the Cambridge Dictionary. 65
(d) The shipping employed in commerce as opposed to war, the merchant navy, with “Merchant Navy” being a fleet or number of ships used in trade in the New Shorter English Oxford Dictionary. 66
[55] Relevantly, the definitions refer to ships or vessels as a collective or a “fleet,” with a relationship to a nation, and define that collective by reference to the activity it undertakes, being “employed in commerce,” “engaged in commerce,” “used in trade,” “involved in…commercial shipping” and which “carry goods.” In our view these are the key characteristics of the “Mercantile Marine” that can be identified from the dictionary definitions.
[56] To be a “member” of the “Mercantile Marine” a person must be employed onboard one of the vessels of the fleet which undertakes the relevant activity. While the definitions use different words, they speak to the same type of activity. We consider that this activity is the transportation of goods or otherwise by sea.
[57] Given that the question is whether Mr Sticpewich is a member of the “Mercantile Marine” on the proper construction of the Eligibility Rule, we consider it relevant to observe the history of the AMOU Rules, the statutory context in which they operate, and the context provided by the Eligibility Rule as a whole, including with respect to the qualification requirements.
[58] There is limited material before the Commission as to the history of the AMOU Rules. We adopt the Deputy President’s summary at [24] of the decision:
[24] The origins of the AMOU can be traced back to the Merchant Service Guild of
Australasia which was registered under the Commonwealth Conciliation and Arbitration Act 1904 (Cth). On 3 September 1957, the Merchant Service Guild of Australasia was renamed the Merchant Service Guild of Australia. On 2 February 1993, following an amalgamation between the Merchant Service Guild of Australia and the Australian Stevedoring Supervisors Association, the Merchant Service Guild of Australia was renamed the Australian Maritime Officers’ Union.
[59] To this we add that the evidence before the Deputy President discloses that since 20 September 1995 there has been no alteration to Rule 6, Part 1 of the AMOU Rules. 67
[60] With respect to the relevant statutory context, we are of the view that the Eligibility Rule was written against the background of the Merchant Shipping Act 1894 (Imp). The Merchant Shipping Act 1894 (Imp) was repealed by the Shipping Registration Act 1981 (Cth) on 26 January 1982. 68 Both Acts deal with matters including the registration of ships,69 and the flying of the red ensign which is generally (but not always) flown by merchant ships.70
[61] The Merchant Shipping Act 1894 (Imp) established “certificates of competency” for various ranks of seafarer. 71 It also made varied references to the “Board of Trade,” which is part of the British Government. These are terms used within the Eligibility Rule. We also note:
(a) the Merchant Shipping Act 1894 (Imp) was in force in Australia at all relevant times prior to 26 January 1982, and the Eligibility Rule was written sometime prior to 1907; 72 and
(b) the Merchant Shipping Act 1894 (Imp) deals with matters pertaining to the “Mercantile Marine,” such as the fund and the office, the latter having been an establishment in Australia; 73 and
(c) the Merchant Shipping Act 1894 (Imp) does not otherwise define the term “Mercantile Marine.”
[62] It appears that the reference to a “certificate of competency” in the Eligibility Rule was historically a reference to s 93(1) of the Merchant Shipping Act 1894 (Imp) and to the following grades of seafarers: (a) Master of a foreign-going ship, (b) First mate of a foreign-going ship, (c) Second mate of a foreign-going ship, (d) Only mate of a foreign-going ship, (e) Master of a home trade passenger ship, (f) Mate of a home trade passenger ship, (g) First-class engineer and (h) Second-class engineer.
[63] These roles involve the navigation or operation of a ship or vessel. They are fundamentally concerned with the activity of moving a ship from place to place. While the certification regime has changed, these position titles have broadly been preserved and expanded upon, as demonstrated by the classification structure in the Seagoing Industry Award 2020. 74
[64] The evidence of Mr Sticpewich is that he holds a Master (Unlimited) Certificate of Competency and an Advanced Diploma of Maritime Operations (Master Unlimited). 75 To be eligible for this course, students must have completed certain studies in conjunction with the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention),76 which sets the minimum standards relating to training, certification and watchkeeping for seafarers on merchant ships. Australia has given effect to this convention by the Navigation Act 2012 (Cth).77
[65] The STCW Convention covers “sea-going ships” which means “a ship other than those which navigate exclusively in inland waters or in waters within, or closely adjacent to, sheltered waters or areas where port regulations apply.” 78 The STCW Convention covers the various crew of a ship, including masters, officers, deck officers, chief mates, engineer officers, second engineers, officers, ratings and radio officers.79
[66] While the STCW Convention sets standards for seafarers, it is the Seafarers’ Training, Certification and Watchkeeping Industry Code (STCW Code) that provides a detailed certification process aiming to give effect to the STCW Convention and its standards. 80 The STCW Code identifies the following functions:
“Also contained in this Part are standards of competence required to be demonstrated by candidates for the issue and revalidation of certificates of competency under the provisions of the STCW Convention. To clarify the linkage between the alternative certification provisions of Chapter VII and the certification provisions of Chapters II, III and IV, the abilities specified in the standards of competence are grouped as appropriate under the following seven functions:
1 Navigation
2 Cargo handling and stowage
3 Controlling the operation of the ship and care for persons on board
4 Marine engineering
5 Electrical, electronic and control engineering
6 Maintenance and repair
7 Radiocommunications” 81
[67] We therefore proceed on the basis that the STCW Code sets standards for the performance of the above seven functions. We observe that the second of the qualification requirements merely ensures that the Eligibility Rule captures those undertaking any duty connected with the navigation of vessels, being a function addressed by the certificate of competency. It therefore does not address any significant additional function when compared to the certificate of competency.
[68] We further observe that the STCW Code is separated into sets of minimum standards distinguished by, among other things, tonnage, the type of cargo, the type of voyage, the minimum power of the ship, the task being performed and the various ranks of seafarer. Competency with respect to matters involving cargo is addressed in these sets of minimum standards. There is also a specialist LNG Tanker Training Program and specialist programs for managing other types of unique cargo on ships.
[69] Mr Sticpewich holds STCW certificates issued by the AMSA. 82 At [116] of the decision, the Deputy President concluded that Mr Sticpewich holds a certificate of competency for the purposes of the Eligibility Rule. More is said about this aspect of the Eligibility Rule later in this decision when we consider appeal ground four. As it pertains to ground two, we also accept that the AMSA when issuing a STCW certification is issuing a “certificate of competency” for the purposes of the Eligibility Rule.83
[70] In our view, the functions identified by the certificate regime are overwhelmingly concerned with the activity of shipping, being navigation, cargo handling and stowage, controlling the operation of the ship and care for persons on board, marine engineering, electrical, electronic and control engineering, maintenance and repair and radiocommunications. Further, the hierarchy and organisation of positions onboard vessels operated by those possessed of a certificate of competency has been mostly preserved since the conception of the Eligibility Rule and are positions concerned with navigating and operating ships. It follows that because the Eligibility Rule requires members of “Mercantile Marine and dependant services” to be “possessed of certificates of competency,” the Eligibility Rule is concerned with the activity of shipping. 84
[71] We observe that there are many industrially distinct activities which utilise a structure or vessel, or other craft in the ocean. It is not realistic for the words of the Eligibility Rule to be read as extending to every one of these activities given the qualification requirements address one specific industrial activity; shipping. A comparison of “shipping” against the activities of Shell on the Prelude bears this out. In short, shipping concerns transportation by sea and the Prelude’s activities concerns the extraction of a natural resource from the seabed. The activities utilise different machinery, comprise of a workforce administering different skillsets, operate in different competitive markets and exist within the confines of different regulatory systems. 85
[72] Having regard to this analysis, we consider that the term “Mercantile Marine” refers to ships or vessels as a collective or as an identifiable fleet. The fleet is identifiable in part due to the activity it undertakes, being the transportation of goods or otherwise by sea. “Members of Mercantile Marine” are those employed onboard vessels in the fleet. The qualification requirements are directed toward the industrially distinct activity of shipping, which is entirely harmonious with the ordinary meaning of “Mercantile Marine” we have identified from the dictionary definitions and is in opposition to a construction of “Mercantile Marine” which includes something like the Prelude.
[73] We earlier set out the Deputy President’s factual findings in respect of the Prelude. These are not challenged on appeal. As is apparent, and for the reasons identified by the Deputy President, the Prelude does not transport goods or otherwise by sea. Accordingly, we find that the Prelude falls outside the scope of the term “Mercantile Marine” in the Eligibility Rule. As Mr Sticpewich does not serve on the Mercantile Marine fleet, he cannot be considered a member of it. 86
[74] The Deputy President’s conclusion at [99]-[100] of the decision, read in isolation, is consistent with this view. It is not challenged on appeal, and we endorse it:
[99] The key characteristic of the mercantile marine is that it uses ships to transport goods for commercial purposes as opposed to the road transport industry which uses trucks or the airfreight industry which uses aircraft.
[100] The Prelude does not ‘ship’, ‘carry’ or move goods from one geographic location to another. The Prelude extracts processes and stores natural gas from the surrounding seabed. The gas is shipped, carried or moved by those vessels which dock alongside the Prelude from the Prelude gas field to customers onshore in Australia and overseas.
[75] We consider the Deputy President’s analogy apt to describe the Mercantile Marine.
[76] While we have identified an error in the decision in relation to the issues raised by appeal ground two, we are not persuaded on rehearing that the AMOU has successfully established that Mr Sticpewich was a member of the “Mercantile Marine” for the purposes of the Eligibility Rule.
Appeal ground three
[77] We turn now to appeal ground three, which alleges that the Deputy President erred in finding that Mr Sticpewich was not a member of a “dependent service” within the meaning of the Eligibility Rule. The AMOU contends that the Prelude is a “dependant service” 87 such that Mr Sticpewich is a member by virtue of his employment.
[78] In support of its position that the Prelude is properly characterised as a dependent service, the AMOU relies upon the decision of Merchant Service Guild of Australia v The Maritime Services Board of New South Wales and Others (MSB NSW). 88 MSB NSW considered the question of whether port control officers were members of “dependent services” and held that they were, reasoning relevantly as follows:
“I do not accept that the Guild's rules necessarily restrict its members to those who are employed on board ships and that "dependent services” means only shipping or other vessel services such as tugs, lighters and dredges. “Dependent services” must be services whose existence depends on the existence of the Mercantile Marine.” 89
[79] The AMOU alleges that the Deputy President erred by not addressing the service that the Prelude provides, operating effectively as an offshore terminal facility with responsibility for berthing LNG tankers and loading them with a commodity. In this way, the AMOU submits, the Prelude operates in the same manner as a terminal would at a port on the shore, in the sense as discussed in MSB NSW. It says that Mr Sticpewich performed the role of oversight of those operations, with responsibility for employees who are engaged in loading and unloading operations, which is comparable to the role performed by port workers.
[80] The AMOU’s position is that the Deputy President should have found that the loading of the LNG tankers which had berthed with the Prelude was a substantial part of its operations. It says that the Prelude is not simply engaged in extraction and offloading of the raw product. Rather, the AMOU submits that the Prelude is engaged in supplying ships with the finished product for transport to market, as the Deputy President found at [28] of the decision.
[81] The AMOU contends that the Deputy President’s reasons demonstrate that there has not been an understanding of the evidence and the analogy to a mine at [104] of the decision bears this out. It submits that whilst the mine might ultimately extract the commodity, which is transported by ship, it does not provide any service to the ships themselves. By contrast, the Prelude is directly responsible for berthing the LNG tankers and loading them with the commodity. That is the service provided to the Merchant Marine and which makes the Prelude a “dependant service.” 90
[82] In support of its position, the AMOU relies upon the evidence of Mr Kidd, who accepted in the proceedings before the Deputy President that an LNG terminal is similar to a port for a container ship. 91 Mr Kidd is employed by Shell as an Offshore Installation Manager, being the most senior person on the Prelude.92
[83] Shell’s position is that there is no error in the Deputy President’s conclusion. It says that the Prelude does not provide a “dependent service” to the Mercantile Marine in the sense understood in Fisheries (that is, an appurtenance, a subordinate part, or a dependency). Accordingly, the Deputy President did not err in concluding that Mr Sticpewich was not a member of a “dependent service” within the meaning of the Eligibility Rule. Further, Shell submits that the AMOU’s reliance upon the decision in MSB NSW concerning port workers fails for six reasons:
(a) the AMOU’s construction would invert the nature of the relationship between the respondent and its transport service partners. Insofar as the analysis of a single member in MSB NSW supports that inversion, it extends beyond the construction of “dependent service” adopted by Fisheries and the Full Bench’s approach in Fisheries should be preferred;
(b) there is nothing to suggest that the offtake function is a “service” divisible from the Prelude’s gas processing operations. It is simply an essential part of the Prelude’s primary function;
(c) there is no evidence before the Commission to suggest that the Prelude’s offtake function was provided to the Mercantile Marine on any commercial basis (such as might demonstrate the provision of a “service”). Shell cannot sensibly be said to be “part of the service industry” to its transport partners, which is the approach adopted in Fisheries;
(d) the AMOU’s construction fails on a contextual analysis. The array of industries and occupations set out in Rule 6 Part 2(a) which concerns the stevedoring industry, would be captured by the definition of “dependent services” in the Eligibility Rule. It follows, on this construction, that the term “dependent services” in the Eligibility Rule must be given some narrower construction;
(e) even if the Prelude’s offtake function were capable in isolation of meeting the definition of a “dependent service,” it is not the Prelude’s primary function; and
(f) the primary function of Mr Sticpewich’s role cannot be said to be as a member of a “dependent service.” The Deputy President’s findings concerning the nature of Mr Sticpewich’s role 93 are not challenged on appeal.
[84] The AWU submits that the Prelude is engaged in the extraction, refining and storage of hydrocarbons. This activity has not been created as a result of the existence of the Mercantile Marine in the same or even in a similar way as the service provided by port control officers in MSB NSW. It is said that Mr Sticpewich, in his role as a Lead Production Technician, is not engaged in a service whose existence depends upon the existence of the Mercantile Marine. The activities engaged in by workers on the Prelude depend on the existence of hydrocarbons in the Browse Basin, not the shipping industry.
[85] Further, the AWU says that the AMOU’s argument artificially inflates the significance of any duties Mr Sticpewich may have in relation to loading operations and ignores the vast majority of Mr Sticpewich’s duties as a Lead Production Technician.
[86] It is convenient to first deal with MSB NSW and the construction of the term “dependant services.” We then consider the contention that the Deputy President overlooked evidence, before turning to the question of whether the Deputy President’s conclusion was correct.
[87] Insofar as MSB NSW determined that “dependant services” are “services whose existence depends on the existence of the Mercantile Marine,” 94 we respectfully disagree. Such an approach imposes a requirement that for a service to be a “dependant service” it must be unable to exist without the Mercantile Marine. MSB NSW appears to suggest that all those employed in port control work provide a service wholly contingent upon the existence of the Mercantile Marine, and not the six specific port control workers being considered in that decision.95 We regard such an approach as unduly restrictive, noting that:
(a) an activity may be properly characterised as a “dependant service” in circumstances where it also has some other purpose; and
(b) a service in a general sense could exist without the Mercantile Marine and still be properly characterised as a “dependant service.”
[88] We consider the meaning of the term “dependent services” in Fisheries is preferable and sufficient for the purposes of resolving ground three. That is, a “dependant service” to the Mercantile Marine is a service which exists to “assist, facilitate the role of, form an adjunct to or contribute to the function of the Mercantile Marine or its officers and crews.” 96
[89] We reject the submission that the Deputy President overlooked Mr Kidd’s evidence. In its closing submissions 97 and in its reply submissions,98 before the Deputy President the AMOU relied upon the evidence of Mr Kidd in support of its contention that the Prelude is a “dependent service,” as follows:
“[a]s was accepted by Mr Kidd, in this sense, the Prelude was no different than a port for a container ship;” 99
(b) “[o]nce it is accepted that the Prelude is analogous to a port, the workers associated with those duties including the storage and loading panel technician and Mr Sticpewich who was responsible for supervising that person, they fall within President McKenzie’s description in Merchant Services Guild v. The Maritime Service Board of New South Wales;” 100 and
(c) “[i]n this sense, the Prelude is no different than a port which loads cargo onto commercial vessels for the purposes of transport.” 101
[90] The decision at [104] is, in our opinion, responsive to those contentions. The Deputy President said:
[104] The operation of the Prelude does not provide a ‘service’ to the mercantile marine. Rather, the mercantile marine provides a service to the Prelude’s operations in the industry of oil and gas production. In the same way a land-based refinery or even a mine does not provide a service to ships that load gas or ore in a port.
(our emphasis)
[91] There is no error arising from the use of the analogy as contended. Read fairly, the Deputy President considered and rejected the characterisation of the Prelude as a port. The Deputy President found that the Prelude does not provide a “service” in the same way that a land-based refinery does not provide a service to ships that load gas or ore in a port.
[92] In relation to the contention that the Deputy President erred in the conclusion at [104] of the decision, 102 the AMOU relies on the following two points made by Mr Kidd:
(a) a Perth-based terminal co-ordinator conducts compatibility assessments of, and the vetting of tankers that visit the Prelude; and
(b) one of the Prelude’s functions is that it berths LNG tankers and transfers LNG to those tankers and in that sense could be described as a port. 103
[93] The observations made by Mr Kidd fall short of establishing that the operations of the whole of the operations of Shell on the Prelude facility fall within the scope of “dependent services.” Rather, as the Deputy President found at [93], the evidence points to a different conclusion; that the Prelude’s primary purpose is not that of a port or LNG terminal, but rather to “extract, refine and store hydrocarbons.” This finding is not challenged on appeal.
[94] The AMOU’s contention is that the whole of the Prelude can be characterised as a “dependant service.” It may be that some aspects of the work carried out by Shell may be characterised as a dependant service, such as loading and berthing LNG tankers. However, we reject the contention that Shell’s operations on the Prelude as a whole constitute “dependent services.” Nor do we consider on the evidence and having regard to the Deputy President’s unchallenged findings at [115] and [119] of the decision, that Mr Sticpewich himself carries out work that falls within the scope of “dependent services.” However, it is unnecessary to consider this issue further noting that the AMOU did not frame its argument in this way.
[95] No error is disclosed in the Deputy President’s approach, or the conclusion reached on the evidence before the Commission. It follows that appeal ground three is dismissed.
Appeal ground four
[96] Having regard to our findings in respect of appeal grounds two and three, it is strictly unnecessary for us to address appeal ground four. However, for the reasons that follow and having regard to the nature of the parties’ arguments, and the matters identified by us concerning the qualification requirements in appeal ground two, we consider it appropriate to record our findings.
[97] By appeal ground four, the AMOU contends that the Deputy President erred in finding that the AMOU Rules required Mr Sticpewich to use a “qualification entitling him to undertake any duty connected with the navigation of vessels.” Rather, on the proper construction of the Eligibility Rule, it is said that Mr Sticpewich was only required to be in the Mercantile Marine or dependent services and possess a relevant certificate or qualification.
[98] The AMOU challenges the Deputy President’s reasoning on three bases, which Shell and the AWU address in turn.
[99] Firstly, the AMOU submits that the finding is contrary to the express words used in the Eligibility Rule. It contends that there are no words which expressly require a person to use their qualifications in the course of their duties. Accordingly, the rule simply requires possession of the qualification and the propositions expressed by the Deputy President at [113] of the decision do not follow. It says that the words “entitle him to undertake any duty connected with” in the Eligibility Rule serves to identify the nature of the qualification, not to import any obligation that a person exercise or use that qualification in their role. The AMOU suggests that the qualifications still have relevance as the person needs to be in the “industry” and hold a relevant qualification to be eligible. The AMOU also submits that the examples provided at [112] of the decision are so unlikely they are of no utility as a tool of analysis.
[100] In response, Shell submits that the Deputy President was correct to find that such a construction would give unnecessary breadth to the rule. It says that the Deputy President's conclusion reflects a purposive construction, such that the qualification requirements must have some work to do in limiting the types of roles that could qualify for membership. Shell submits that the AMOU’s construction would mean the qualification requirements are an arbitrary bar to membership under the Eligibility Rule.
[101] The AWU contends that this argument merely demonstrates the AMOU’s dissatisfaction with the finding in the decision, without identifying any specific error on the part of the Deputy President. It submits that while the AMOU identifies an “inherent absurdity” in the examples at [112] of the decision, the absurdity arises from the construction urged by the AMOU.
[102] Secondly, the AMOU submits that the text of the Eligibility Rule can be contrasted with other narrower parts of the rules, for instance:
(a) Indentured Shipwrights who must not only be an Indentured Shipwright as a trade or calling, but also be “performing the functions of” a shipwright;
(b) Marine Engineers who must not only be a Marine Engineer, but also be “so engaged”;
(c) ROV Pilot/Technicians who must be “employed or engaged in the function of ROV Pilot/Technician”;
(d) Part 2 generally requires both employment “in or in connection with” the Stevedoring Industry and that the employment be “in connection with” the listed occupations; and
(e) Part 3 which refers to holding a Certificate of Competency as a requirement of the classification.
[103] In response, Shell submits that the words “entitling” and “undertaking” in the Eligibility Rule have the same limiting operation as each of the examples relied upon by the AMOU. It says that it is difficult to draw meaningful contextual assistance from other parts of the rules which are the patchwork product of various amalgamations and amendments over past decades. Shell’s position is that the “narrower parts” relied upon by the AMOU do not demonstrate a consistent form of words or drafting approach which might provide a meaningful contrast.
[104] Similarly, the AWU contends that it is insufficient to refer to other parts of the AMOU Rules to establish that the rules are internally consistent in grammar and precision, particularly in circumstances where the rules are a product of a union amalgamation. On the AMOU’s own submissions, the AMOU Rules use various phrases to express the same thing.
[105] Thirdly, the AMOU submits that the Commission’s construction ignores the history of the Eligibility Rule, including those matters stated earlier at [58] of this decision. The AMOU says that the evidence of Mr Davis discloses that when the relevant part of the rule was first registered, it contained an exception for “certificated officers” who performed the role of managing shipowners, marine superintendents or officials of the navigation department. The exception was subsequently refined over numerous amendments until it was removed on 23 March 1973. The AMOU contends that the exception is important because it was directed at persons who were performing roles that did not require them to be involved in the navigations of vessels. It says that the exception was necessary because the introductory words were otherwise sufficiently broad to capture persons in the industry, but who were not required to have or use their navigation qualifications in the course of their duties. The removal of the exception is said to support the AMOU’s argument.
[106] Shell submits that the underlying purpose of the former “certificated officer” exception does not appear to have been to carve out those no longer using qualifications, but instead to ensure that those members in roles which required them to act in their employer’s interest could not exercise membership rights. In any case, it submits that the removal of that exception does not of itself demonstrate the breadth of the foregoing inclusionary rule. Shell says that it can equally be explained by a recognition that the inclusionary rule was relevantly confined and therefore the exception was otiose.
[107] The AWU submits that there is nothing to support the AMOU’s contention that the removal of an exception in 1973 supports the AMOU’s construction today. The AWU contends that it makes more sense to conclude that the exception existed by reason of the identified roles being largely “employer” roles and not those performed by “employees.”
[108] On a plain reading of the Eligibility Rule, there are two different qualification requirements:
(a) “certificates of competency issued or recognised by the Commonwealth of Australia, or any State thereof, the Board of Trade, or by any British possession or dependency”; or
(b) “any qualifications entitling him to undertake any duty connected with the navigation of vessels.”
[109] Only one of the qualification requirements needs to be satisfied. Even appreciating that the Eligibility Rule may not have been drafted with the attention given to a statute, it makes little sense to read the words “entitling him to undertake any duty connected with the navigation of vessels” in (b) above into the certificate of competency condition at (a) above.
[110] It also makes little sense to read, as Shell suggests and the Deputy President found, the words “entitling” and “undertake” as a textual implication of a condition that the qualification be used for “any duty connected with the navigation of vessels.” We consider that the phrase is used simply to describe the type of qualification at (b) above.
[111] As earlier identified, the STCW functions are primarily concerned with the act of shipping, which includes a focus on the stowage, loading and unloading of cargo and other matters. We consider that the requirement to use the certificate of competency to undertake any duty connected with the navigation of vessels is unduly restrictive, particularly with respect to the dependant services aspect of the Eligibility Rule. For example, as was found by the Deputy President at [119], those engaged in loading operations may require certificates of competency to fulfil their role. Such persons are not involved in any duty connected with the navigation of vessels. Despite this, they are carrying out work which is the focus of the Eligibility Rule and which we consider would be captured by it.
[112] We also reject the AMOU’s contention that mere possession is sufficient because that is what a literal reading of the text suggests.
[113] We consider that the possession of a “certificate or competency” or “any qualifications… connected with the navigation of vessels” must be a requirement of employment. This is because there are many workers who perform work onboard a vessel of the Mercantile Marine or for a dependant service who do not require the possession of a relevant qualification in their employment. It does not make sense that all of these workers would be eligible for AMOU membership simply because they possess a certificate of competency. As Shell submitted, this is not a realistic way to read the Eligibility Rule, as the qualification requirements would be an arbitrary bar to eligibility. In this respect, we agree with the Deputy President’s use of the following examples:
[112] For example, on the AMOU’s interpretation, a person working as a chef, a cleaner or a professional stage performer on board a commercial ship could be covered by the AMOU if they held a certificate of competency or a qualification, even though they would never be required to use that qualification in any form.
[114] To the extent that the AMOU suggests that eligibility is determined by being in the relevant industry and simply possessing the relevant qualification, we disagree. We note that “the relevant industry” is not expanded upon by the AMOU. It appears to be a reference to the “Mercantile Marine industry” and the “dependant services industry” as it was put to the Deputy President. 104 What this means is unclear since the construction of “Mercantile Marine” advanced by the AMOU did not concern an identifiable industry and instead appears to capture most commercial activity on the ocean. In this respect it is not clear how the certificate of competency provides background knowledge to the relevant industry because it only concerns, in short, shipping.
[115] Mr Sticpewich holds STCW certificates. 105 For the reasons earlier stated, it is not in dispute and we agree that an STCW certificate issued by the ASMA is a certificate of competency for the purposes of the Eligibility Rule. Mr Sticpewich was certified at a management level for navigation, cargo handling and stowage and controlling the operation of the ship and care for persons. He also had a specialist oil tanker cargo certificate.106
[116] We accept the Deputy President’s unchallenged finding at [117]-[121] that Mr Sticpewich was not required to hold these qualifications for his employment at all, and none of the other Lead Production Technicians hold a relevant qualification. We therefore conclude that Mr Sticpewich does not satisfy the qualification requirements.
[117] While an error has been identified in relation to the Deputy President’s reasons, we are not persuaded on rehearing that the AMOU’s position with respect to the construction of the Eligibility Rule is correct. Ground four is dismissed.
Ground five
[118] Appeal ground five concerns the purported non-exercise of the discretion to grant a bargaining order. It therefore involves an allegation of an error of the kind described in House v King. 107
[119] The Deputy President’s reasons as they relate to ground five can be summarised as follows:
(a) the AMOU is not a bargaining representative so an order cannot be issued; and
(b) even if the AMOU was a bargaining representative, there is no evidence that Shell would not commence bargaining with the AMOU because it is bargaining with other unions.
[120] The AMOU takes issue with the following passage of the decision:
[131] In its written submissions Shell have confirmed that subject to any appeal rights, Shell will recognise the AMOU as a bargaining representative if they are determined by the FWC to be a bargaining representative. 108
[121] The AMOU contends that the Deputy President erred by not considering what would occur in the event of an appeal. That is, it is unclear whether Shell would recognise the AMOU pending hearing and determination of any appeal. The AMOU says that this error is relevant because of the prospect that the AMOU could be successful on appeal but is still denied its rights to act as a bargaining representative.
[122] We observe that this contention is entirely hypothetical. The Deputy President found that the AMOU was not a bargaining representative and therefore could not exercise the discretion. The Deputy President was merely making observations as she was entitled to do.
[123] Ground five is dismissed.
Appeal ground one
[124] Having regard to our findings and the conclusions reached, and noting [29] above, it follows that appeal ground one is dismissed.
Order and disposition
[125] We order as follows:
(a) Permission to appeal is granted.
(b) The appeal is upheld.
(c) The decision of the Deputy President issued on 4 February 2022 ([2022] FWC 228) is quashed.
(d) On a re-hearing of the originating application, for the reasons given, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms L Doust for the appellant
Mr A Pollock for the first respondent
Mr C Duncalfe for the second respondent
Hearing details:
By video using Microsoft Teams on 19 April 2022
Printed by authority of the Commonwealth Government Printer
<PR743310>
1 Further Amended Appeal Book (Appeal Book) 195 at [24]
2 Ibid 195 at [25]
3 Ibid 209
4 Ibid 195 at [29]-[30]; 216-217
5 Ibid 195-196 at [33]-[46]; 11 at [24]; 138 at [6]; 147 at [34]
6 Ibid 194 at [21]; 196
7 Ibid 316 at [2]-[4]
8 Ibid 318 at [16]
9 Regional Air Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456 at [45]
10 Ibid 238
11 Ibid 12-14 at [26]-[37]
12 Ibid 14-15 at [38]-[41]
13 Ibid 15-16 at [41]-[48]
14 Ibid 16-17 at [49]-[60]
15 Ibid 18 at [71]
16 Ibid 19 at [75]
17 [1998] 78 WAIG 3648; [1998] WAIRComm 180
18 Appeal Book 19 at [76] citing Fisheries
19 Ibid 20 at [81]-[95]
20 Ibid 21 at [91]-[93]
21 Ibid 21 at [94]-[95]; 313; 351
22 Ibid 22 at [96]-[100]
23 Ibid 22 at [99]
24 Ibid 22 at [98]-[100]
25 Ibid 22-23 at [101]-[105]
26 Ibid 23-24 at [105]-[114]
27 Ibid 23-24 at [105]-[114]
28 Ibid 24-25 at [115]-[125]
29 Ibid 25-27 [126]-[132]
30 [2020] FCAFC 195 at [79]
31 The Australian Manufacturing Workers’ Union v Resmed Limited [2014] FWCFB 3501 (Resmed) at [34] and the cases cited therein; Australian Rail, Tram and Bus Industry Union v Transport Workers’ Union & ors [2020] FWCFB 3200 at [24]
32 [2014] FWCFB 3501 at [34]
33 R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at CLR, 587
34 R v Williams; Ex parte Australian, Building, Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 (R v Williams) at CLR, 408
35 Re Dyno Nobel Asia Pacific Ltd (unreported, AIRCFB, 14 July 2005, PR956868) at [13]
36 Ibid at [51] and the cases cited therein
37 CSBP Limited v Construction, Forestry, Mining and Energy Union [2011] FCA 917; 212 IR 162 at [44]-[45]
38 [1998] 78 WAIG 3648
39 Appeal Book 19
40 Fisheries at p.8
41 Ibid at p.7
42 See, Merchant Services Guild of Australia, Western Australia Branch, Union of Workers v Fisheries Western Australia [2001] WAIRComm 2020 at [153] (2)-(3)
43 Appeal Book 19-22 at [75]-[100]
44 Sydney Local Health Network v QY and QZ [2011] NSWCA 412 at [15]
45 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [28]
46 Appeal Book 36 at [69]
47 Ibid 156 at [71]-[72]
48 Ibid 119 at [58]-[59]; 36 at [69]
49 Ibid 127-131 at [30]-[40]
50 Ibid 140-141 at [13]-[21]
51 Ibid 184-185 at [22]-[27]
52 Appellant’s submissions at [18]
53 Ibid at [22]-[23] citing Gapp v Bond (1887) 19 QBD 200
54 Ibid [17] and [33]
55 Transcript at [306]
56 Appellant Submissions at [34]
57 Ibid at [34]; Transcript at [152]
58 Cf, Macquarie Dictionary online, “commercial” sense 1 and 2 with sense 3
59 Appeal Book 37 at [70]; 95; 119 at [59]; 120 at [64](c); 158; 161 at [93]; 163 at [103](c)
60 Ibid at [34]; Transcript at [152]
61 Fisheries at p.8
62 Appeal Book 126 at [25]
63 Collins Online Dictionary (online at 28 July 2021) ‘mercantile marine’ and ‘merchant navy’
64 Macmillan Dictionary (online at 28 July 2021) ‘mercantile marine’ and ‘merchant navy’
65 Cambridge Dictionary (online at 28 July 2021) ‘merchant marine’
66 New Shorter English Oxford Dictionary (4th ed, 1993) ‘mercantile marine’ and ‘merchant navy’
67 Appeal book 292-293
68 Shipping Registration Act 1981 (Cth) ss 3 “previous law” and 4, and endnote 3
69 See generally, Merchant Shipping Act 1894 (Imp) ss 4-13
70 Ibid s 73; Shipping Registration Act 1981 (Cth) s 30; Explanatory Memorandum, Shipping Registration Bill 1981, Flags Amendment Bill 1981, Navigation Amendment Bill 1981 10865/81 (Cat. No. 81 3548 5) at [12553] (p 2)
71 Ibid s 93
72 Appeal book 310
73 Navigation Act 1912 (Cth) Pt 1 Div 2; see, eg, McKain v RW Miller & Co (South Australia) Pty Ltd [1991] HCA 56, 174 CLR 1 at CLR, 15
74 Seagoing Industry Award 2020 cll 4.1 and 4.2 and 14
75 Appeal book 322 at [42]
76 Appeal book 331, 336; International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 ([1984] ATS 7), adopted at London by the International Maritime Organisation on 7 July 1978, entry into force in Australia 28 April 1984, as amended from time to time
77 Navigation Act 2012 (Cth) ss 14 “STCW Convention”, 28(2), 340(1)(h) and related regulations; Duarte v Australian Maritime Safety Authority [2010] FCAFC 127 at [1]-[11]
78 STCW Convention Art II(g) and Art III
79 Ibid Annex Ch 1 Reg I/1
80 Seafarers' Training, Certification and Watchkeeping Code ([1997] ATS 33), adopted in London, 7 July 1995, entry into force for Australia 1 February 1997, as amended from time to time
81 Ibid Annex 1, Part A at [1]-[2]
82 Appeal book 330-331
83 Navigation Act 2012 (Cth); Australian Maritime Officers' Union v ASP Ship Management Pty Ltd [2020] FWCFB 1469 at [18]; see also, with respect to the domestic regime, Maritime Safety (Domestic Commercial Vessels) National Law Act 2012 (Cth) Pt 4, Div 4 – Certificates of Competency, and related regulations
84 See Rule 7 of the AMOU Rules
85 See, eg, Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)
86 Shell made submissions to this effect at first instance, Appeal Book at 127 [27](f) and [28]-[29]; 168-169 at [22]-[26]
87 Appellant’s submissions at [44]
88 (1980) Print E2034
89 Ibid at p.4
90 Appellant’s submissions at [43]
91 Appeal Book 55 at [256]
92 Appeal Book 17 at [61]; 357 at [5]
93 Appeal Book 15 at [39]-[48] and 24-25 at [115]-[124]
94 (1980) Print E2034 at p.4; see also p.6
95 (1980) Print E2034 at p.2, 8
96 Fisheries at 12.
97 Appeal Book 161 at [95]
98 Appeal Book 191 at [18]
99 Appeal Book 161 at [95]
100 Appeal Book 161-162 at [96]
101 Appeal Book 162 at [98]
102 Appellant’s submissions at [41]
103 Transcript at [253]-[256]
104 See Appeal Book 115 at [44]
105 Appeal Book 330-332
106 Appeal Book 330-331
107 [1936] HCA 40
108 Appeal Book 24