| [2016] FWC 7073 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Maritime Union of Australia
(RE2016/540)
COMMISSIONER CLOGHAN |
PERTH, 25 OCTOBER 2016 |
Application to deal with a right of entry dispute.
[1] This is an application by the Maritime Union of Australia (MUA) for the Fair Work Commission (Commission) to deal with a right of entry dispute pursuant to s.505 of the Fair Work Act 2009 (FW Act).
[2] The MUA seek an order pursuant to s.484 of the FW Act that a permit holder of the MUA may enter the Materials Offloading Facility (MOF) and/or WAPET landing on Barrow Island, for the purpose of holding discussions with employees who are engaged in the occupation of waterside worker and who perform work on the premises and who wish to participate in those discussions.
[3] The respondent named in the initiating application is Kellogg Joint Venture Gorgon (KJV). KJV attended a conference on 18 May 2016. KJV asserted that it is not the occupier of the premises the MUA permit holder is seeking to enter.
[4] Subsequently, it was established that Toll Energy Logistics Pty Ltd (Toll Energy or Employer) is the occupier of the premises on Barrow Island which the permit holder is attempting to enter.
[5] At a conference on 1 June 2016, representatives of Toll Energy attended a conference along with MUA and KJV representatives.
[6] At the conference on 1 June 2016, Toll Energy did not object to the application being amended to name it as the second respondent. Pursuant to s.586(a) of the FW Act, I consider it appropriate to amend the application, by consent, to name Toll Energy as second respondent to the application.
[7] KJV remains the first respondent to the application but is not directly involved in the substantive dispute.
[8] A further conference took place on 17 August 2016 but the matter remains unresolved. The application was set down for a hearing on 3 October 2016. Prior to the hearing, the parties conducted “inspections” on Barrow Island on 30 September 2016.
[9] At the hearing on 3 October 2016, the MUA was represented by Mr D Quinn of counsel. Evidence was given for the MUA by:
[10] Toll Energy was represented by Mr C Gardner of counsel. Evidence was given by Mr A Osman who is employed by Toll Energy in the dual roles of Shore Base Manager Barrow Island and Business Unit Site Manager.
[11] Chevron Australia Pty Ltd operates a LNG plant on Barrow Island, located approximately 60 kilometres off the north-west coast of Western Australia.
[12] Cargo, material and equipment are transported to and from Barrow Island either by aircraft or vessel.
[13] The vessels transporting cargo to Barrow Island berth at either the MOF or WAPET landing.
[14] KJV is an occupier of Barrow Island including the MOF and WAPET landing, but its rights and responsibilities as occupier are limited to arranging transport to and from Barrow Island and matters in connection with such responsibilities.
[15] Over the lifespan of the Gorgon Project, the MOF has been known by other names including Off Loading Facility (OLF) and the Heavy Lift Facility (HLF) and Project Materials Off Loading Facility (PMOF).
[16] From 1 April 2016, Toll Energy provides services on Barrow Island pursuant to a contract with Chevron Australia. The contract will be referred to as the “Shore Base Service Contract” (SBS Contract). Approximately 172 employees are employed by Toll Energy to carry out the SBS Contract. Of the 172 employees, approximately 134 are referred to as “General Service Operators” (GSOs). The GSOs work a roster of 14 days at work and 14 days off work. The GSOs work a shift of 12 hours (night shift is only worked in exceptional circumstances). The GSOs carry out a variety of tasks in accordance with the SBS Contract and additional “out of scope” work.
[17] The GSOs conditions of employment are set out in the Toll Group – TWU Enterprise Agreement 2013-2017 (Toll-TWU Enterprise Agreement) which operates in conjunction with the Road Transport and Distribution Award 2010 (RTD Modern Award).
[18] The Registered Rules of the MUA relevantly enable it to represent the industrial interests of any person who intends to follow the occupation of a waterside worker.
[19] With that brief background, the application can be reduced, in my view, to the following:
[20] This is my decision and reasons for decision to the above question, and consequently, the application pursuant to s.484 of the FW Act by the MUA.
[21] Section 505 of the FW Act reads as follows:
“505 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) …
(d) …
(e) …
(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) …
(b) …
(c) …
(d) …
(e) any other order it considers appropriate.
(3) The FWC may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
…
(ii) a permit holder’s organisation;
(iii) …
(iv) …
(4) …
(5) …”
[22] Section 484 of the FW Act reads:
“A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.
Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).
Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”
[23] The registered rules of the MUA identify at Rule 2(a) that it is registered “in or in connection with the shipping industry”.
[24] The MUA is relying upon Rule 3.2(a) which relevantly reads:
“The Union shall also consist of:
(a) any person who intends to follow the occupation of a waterside worker…”
[25] In order for the Commission to be satisfied that the MUA is entitled to represent the industrial interests of the employees subject to this dispute, I must find, in the first instance, that the employees are following the occupation of a “waterside worker”.
[26] In February 2015, Chevron Australia sought Expressions of Interest from entities which are able to deliver Shore Base Services. The scope of services include:
“ Terminal operations (vessel mooring, load and discharge);
[27] The successful:
“Contractor will be required to provide services for the receipt of material and equipment from various Australian and overseas supply sources shipped to Barrow Island via marine transport or air freight and its subsequent distribution on Barrow Island. The Services will also include the collection and staging of reverse freight for movement off the island to mainland Supply bases. Contractor will be required to provide all management, supervision, labour, materials loading, transportation, unloading, equipment, tools, consumables and all other things necessary for the completion of the Work.” 2
[28] Between August 2009 and 31 March 2016, Toll Energy provided, under another contract to Chevron, transport and logistical services to support the construction phase of the LNG plant.
[29] From 1 April 2016, pursuant to its SBS Contract, Toll Energy manages the Barrow Island “supply base” which supports the ongoing construction operations of the LNG plant and now its production phase.
[30] The evidence of Mr Osman contains at Appendices AO-3 and AO-4, copies of the offer of employment to GSOs and their Position Description.
[31] The offer of employment to GSOs has a commencement date of 1 April 2016. The principal conditions of employment for GSOs are contained in the Toll-TWU Enterprise Agreement and RTD Modern Award.
[32] The Position Description contains a number of “primary duties and responsibilities” for GSOs. For the purposes of this application, they include:
[33] In addition, GSOs must have the following essential requirement:
“security cleared by Australian Federal Police for access to approved Australian ports and have undergone induction to gain appropriate MSIC badge/ticket”.
[34] The Employer has notionally structured GSOs into six (6) different groups to fulfil its obligations under the SBS Contract. The groups are:
[35] The above teams are supported by Health, Safety and Environment (HSE) employees and administrative staff. 4
The Off Loading Facility team
[36] Mr Osman’s evidence is that the OLF team is notionally allocated to receive and facilitate the offloading of vessels. However, when, for whatever reason, the employees are unable to work at the MOF or WAPET landing, they are redeployed to work elsewhere.
[37] The crane operator spends approximately two-thirds of their time operating the crane. While the crane operator can be required to work elsewhere, he or she is the only person rostered to work at the MOF on every swing and redeployment to other locations is sporadic.
[38] With respect to other employees of the OLF team, Mr Osman’s evidence is that:
“All other members of the OLF Team rotate through other work areas and roles in accordance with the rotation roster. This means that they do not spend every swing performing work on the MOF or every shift during a swing working at the MOF. When those employees are not at the MOF, they work in other locations performing duties that have no connection to loading or unloading vessels. My estimate is that these team members currently spend no more than 50% of their time at the MOF and the remainder of their time at other locations.” 5
The Shore Base team
[39] The Shore Base team is primarily responsible for:
[40] As at August 2016, GSOs on the Shore Base team spend an average of 30% of their time at the MOF and often significantly less of their time is spent at the MOF (depending on the schedule and the freight load). 6
[41] The following are the only people in the Shore Base team who do not rotate through other work areas and roles from swing to swing:
this is due to the specific nature of their roles.
The Transport and Operations team
[42] The Transport and Operations team is “primarily responsible for the transfer of freight to various locations by road”. The team comprises of 10 drivers who use trucks, forklifts and heavy stackers in moving materials to and from various locations on Barrow Island. The team also includes a bus driver who undertakes water cart duties and drives a tractor. 7
[43] Where there is a reduction in volume of freight needing to be transported by road, the employees drive a fork lift at various locations on Barrow Island. 8 The Commission was provided with uncontested evidence that in the week commencing 15 August 2016, there was approximately 1,100 movement of freight from one location to another and the number of kilometres travelled by road on Barrow Island was more than 15,000 kilometres.
The Logistical Operations team
[44] The Logistical Operations team is generally located at the Old Airport, Triangle Gravel Pit and locations within Oliver Yard.
[45] The Logistical Operations team primarily performs logistic services relating to air freight collection, freight de-consolidation and distribution, support to the accommodation village, securing or relocating loads and the receipt and set up of yards to support freight storage.
[46] Mr Osman’s evidence is that:
“Since August 2016, these GSOs spend around one-third of their time working at the MOF, as they rotate through that area once every 4 months under the rotation roster. At “steady state”, this proportion will be approximately one-sixth.” 9
[47] The Procurement Officer does not rotate through other work areas.
Case law
ETU
[48] In ETU, the Full Court of the Federal Court held that eligibility rules should be liberally construed, but also:
[49] While the Federal Court, in ETU, acknowledged the assistance of extrinsic material, the Court observed that less assistance is derived from “particular witnesses who gave evidence [of] their occupation as ‘maintenance fitter’ or ‘fitter and machinist’ rather than ‘waterside worker’.” 11 Likewise, I find in this application little assistance in the nomenclature given to the relevant employees which was intended to demonstrate that employees were either a waterside worker or not.
[50] In R v Isaac; Ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323-333, it was acknowledged that an employee’s classification can be described in a number of ways and the fact that it falls within one description does not mean it does not fall within another.
[51] The determining factor of whether the eligibility provisions of a union’s registered rules apply with “occupational rules”, is not their job title but the duties which they undertake. 12
[52] Succinctly, in ETU, the Full Court states, “Repeatedly, in the reported cases, one finds recognition that the function of loading and unloading ships lies at the heart of the occupation of a waterside worker”. 13
[53] The Full Court stated that, “the waterside worker, with the appropriate modern tools of trade, continues to perform, at or in the vicinity of the wharf the essential functions involved in the operation of loading and unloading ships”. 14
Carpenter v Corona
[54] Both parties referred to Carpenter v Corona Manufacturing Pty Ltd PR925731 17 December 2002. In Carpenter v Corona, the Full Bench of the Commission was concerned whether the appellant, who had been employed as a National Sales Manager, was employed pursuant to the Commercial Sales (Victoria) Award 1999 (Award). The answer to the question followed from a proper construction of the Award and the application of that construction to the facts of matter before the Commission. 15
[55] For completeness, I note that in Carpenter v Corona, the Full Bench was of the view that a mere assessment of time spent on particular duties is insufficient in determining whether, in this case, the Award applied. “An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed” (my emphasis). 16
[56] I intend to adopt the same approach in this application by considering the meaning of a waterside worker and, having reached the proper meaning of waterside worker, apply that meaning to the facts of this application.
Merchant Service Guild v Fenwick
[57] Mr Quinn, in his closing submission, stated that the question and answer before the Commission can be found in Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd (1993) LBC Current Review 5 (Fenwick), “with merely the names changed”. 17 While there are similarities with Fenwick and this application, I am unable to agree that both are on “all fours” with each other.
[58] Firstly, Justice Ludeke acknowledged that the operation of the vessels at Weipa and at Gove is a different operation to that “on shore”. Similarly, I am satisfied that the operations at the MOF and WAPET landing are different to the Employer’s operations beyond those two locations on Barrow Island. Ludeke J concluded that it was not incompatible to have different industries present within the overall operations at Gove. 18
[59] Secondly and there are similarities to this application, prior to the work reorganisation at Weipa and Gove, crew members had been employed “on the vessels in a full-time capacity” 19. Prior to the reorganisation on April 2016, it would appear that the Employer had established permanent positions at the MOF and WAPET landing in the Marine Team, and employees were allocated to those permanent positions on a full-time basis.
[60] Thirdly, at Weipa, the Employer established 15 positions to perform deckhand work. It was only these 15 positions in the General Services Gang that were considered to be “seamen” 20. While the Employer argued, and provided evidence that, “the time spent on tugs and small boats was of the order of 19 per cent”21, Ludeke J found it necessary to consider a broader approach and include the nature of work undertaken and the circumstances in which the employees are employed to work. If a worker is required by his employer to carry out diverse duties, the inquiry should be directed to ascertaining the principal purpose for which the worker is employed”22.
[61] In Fenwick, Ludeke J concluded, “it is clear that the demands of boat work are a dominating factor in the performance of the duties of the general services gang; the activities of the gang are so organised that the men on the roster for boat work can be released to accommodate shipping movements”. 23
[62] With respect to Masters and Engineers at Weipa, Ludeke J rejected the “quantity” or “time” argument (25% of time spent on towage operations). His Honour again adopted the principal purpose test and found that although the Masters and Engineers spent 25% of their time on towage time, the remainder involved “duties incidental to that purpose”. 24
[63] The circumstances of this application are that the dominating tasks of the “Off Loading Facility” team is, as its name suggests, to facilitate the loading and offloading of vessels. The inescapable evidence is that the positions and employees allocated to those positions, have a primary purpose of loading and unloading vessels.
[64] While Mr Osman uses the language of the “teams” being “notionally” allocated to the loading and offloading of vessels, I am satisfied, on the evidence, that the allocation of employees is more real than notional.
[65] Having considered the OLF team as more real than notional, I move to the time spent by employees at the MOF and WAPET landing. In Fenwick, the employees’ duties accounted for 19% of overall time spent on the vessels. However, the dominating factor was the need for employees to be qualified and able to respond to the various shipping demands.
Toll Energy
[66] Toll Energy submit that the crane operators are the only persons employed in positions which it can be said, are engaged in the occupation of “waterside workers”.
[67] Further, and in particular, Toll Energy submit that “it cannot be said that persons who perform some work which might fall within the meaning of waterside work, where that work forms only a part of a much broader set of duties (other parts of which do not fall within the meaning of waterside work), can nevertheless be characterised as “engaged in the occupation of waterside worker”. 25
[68] In short, the Employer submits that only the crane operators are engaged in the occupation of a waterside worker.
MUA
[69] In its initiating application, the MUA do not identify which persons are engaged in the occupation of waterside worker.
[70] In its statement of facts and written submissions prior to the hearing, the MUA assert that the following are engaged in the occupation of waterside worker:
[71] The context of these occupations is, what the MUA refer to as, the “wharf crew”. 27
[72] In its closing submission, the MUA submit that “all members of the OLF, SB and LO teams are engaged in the occupation of waterside worker”. 28
[73] The MUA essentially make this submission, on the basis of Toll Energy’s evidence that employees in the OLF, SB and LO teams spend 30% to 50% of their working time at the MOF and WAPET landing in relation to tasks relating to the loading and unloading of vessels. 29
[74] At this early stage, the Commission is faced with employees described by their Employer as GSOs and the MUA using different nomenclature to describe categories of employees who, it says, are following the occupation of “waterside worker”.
[75] The Employer’s determinant reason for resisting the MUA’s claim of who it alleges are “waterside workers”, is as follows:
“The primary purpose of the work undertaken by all the Employees is to transport freight between various points on the Island pursuant to the requirements of the Shore Base Contract. Employees are engaged to work across each of the relevant locations and across a range of tasks and roles at those locations. None of the Employees are engaged to perform work only at the MOF or only to perform one role or function when they perform work at the MOF.” 30
[76] Having established its baseline position, Mr Osman was asked to describe how rotation of employees works among the various teams; he replied:
“…the teams that rotate in the main are people within or the team members within the OLF, shore base and our logistics operations team.” 31
[77] Mr Osman’s oral evidence is consistent with his written evidence which states:
“The GSOs engaged in the OLF Team, the Shore Base team and the Logistical Operations team all have very similar skill sets and perform work in locations that are similar in nature. The reason that there are three different teams with similar skill sets and who perform similar work is so that it is easier to manage and supervise activities which require continuity over a period of time and consideration of safe work operations.
Since May/June 2016, with some exceptions, GSOs in the OLF Team, the Shore Base team and the Logistical Operations team have rotated across the different work locations outlined in this statement above to perform a range of different duties. Subject to those exceptions (which are addressed below), the rotation of those employees through those locations means that each employee has not remained allocated to any one particular location or to one particular type of work for any significant period. The rotation has increased in frequency since May/June 2016 for a number of reasons including:
(a) the number of vessels that regularly dock at the MOF has decreased since that time;
(b) there was a 15% workforce reduction in July 2016; and
(c) the need to support changes in requirements from the client and transitions to different types of work.” 32
[78] Obviously, as a corollary to rotating employees through the OLF, Shore Base and Logistical Operations teams, it is necessary that each employee has the requisite skill set to move from area to area and task to task, as part of the SBS Contract.
[79] The evidence of Mr Osman is that, with the exception of the crane operator, “when it is not possible to use the MOF…the OLF team are redeployed to other work”. 33 Such a situation seems sound and reasonable.
[80] With the exception of the crane operator, Mr Osman’s evidence is that, “team members currently spend no more than 30 to 35% 34 of their working time at the MOF and the remainder at other locations” and “this is expected to be no more than 25% at “steady state”.35
[81] In conclusion, work has been organised where the Employer has established “teams”. The OLF team has a primary purpose of loading and unloading vessels. Employees are not always employed at the loading/unloading facilities. Employees can be deployed elsewhere when unable to be usefully used at the MOF and WAPET landing. A declining amount of time is expected to be worked in the loading and unloading of vessels and a variety of suitably qualified employees can be rotated through the MOF/WAPET loading if need be.
[82] Currently two LCTs arrive at Barrow Island each alternate day. The BCC Brisbane is berthed at Barrow Island twice a month for approximately five days on each occasion. While this situation is expected to change over the course of the next 12 months 36 and there may be no need for an OLF team, the above vessel movements were confirmed by Mr Osman as at the date of the hearing.
[83] The OLF team consists of nine (9) or 10 employees whose principal purpose is the loading and unloading of vessels. 37 The occupation of those employees is set out by Mr Osman at paragraph 88 of his witness statement.
[84] Mr Donaldson was employed by the Employer as its Marine Superintendent for approximately 10 weeks. Prior to that, he was a Logistics Supervisor on Barrow Island for approximately 2.5 years.
[85] It is uncontested evidence that Mr Donaldson managed the Marine Team prior to 1 April 2016. The Marine Team is referred to by other MUA witnesses as the “wharf crew”.
[86] With the exception of safety officers in paragraph [69] above, Mr Donaldson’s evidence is that those employees were part of the Marine Team. 38
[87] Overall, I am satisfied that in Mr Donaldson’s period with Toll Energy, the Employer sought to recruit particular employees with the knowledge and experience in the loading and unloading of vessels. 39
[88] Mr Donaldson’s evidence regarding staffing at the MOF and WAPET landing is similar to that of Mr Osman. Further, their evidence is similar regarding the need for experienced and knowledgeable employees at the MOF and WAPET landing for supervisory, continuity and safety reasons.
[89] Mr Donaldson’s evidence was that during the course of his employment, he was not aware of any employee required to perform work away from the MOF or WAPET landing. 40 However, he is aware of since his departure, of members of the Marine Team being rotated to “different parts of the Island”.41
[90] Mr Donaldson’s evidence, in my view, was balanced and generally to the point of the operations at the MOF and WAPET landing. Mr Donaldson acknowledges that with the Gorgon Project moving to its production phase, the focus is now upon the removal of freight from Barrow Island.
[91] Mr Osman acknowledges, in his evidence, that “under the Construction Contract there was a Marine Team which tended to focus on working at the MOF”. With the SBS Contract, “Toll Energy took a different approach and now employees would be expected to work and rotate through areas and functions” 42.
[92] The evidence generally demonstrates the transition from pre and post 1 April 2016 operations. However, the particular focus of work at the MOF and WAPET landing remains. The Employer’s desire for training and familiarisation of employees to enable them to be multi-skilled and multi-functional across numerous work locations has not been fully achieved and there is still an element of “permanency” in the various teams.
[93] Mr Osman’s evidence is that rotations are being “phased in” is borne out of his evidence that currently the OLF team are still spending 50% (or 30-35%) of their work time loading and unloading vessels at the MOF and WAPET landing. 43
[94] With respect to the OLF team, I am satisfied, on the evidence, that the duties of employees away from the MOF and WAPET landing are not “incidental” to the loading and unloading of vessels; the work is part of the overall logistics of Toll Energy’s SBS Contract with Chevron.
[95] While the Employer may have an objective intention of a flexible workforce which is capable of performing a variety of skills across multiple locations on Barrow Island, the evidence demonstrates that the previous operational context of limited movement of employees in the Marine Team remains with respect to the now entitled OLF team. Typically, if a LCT is berthed, work commences at 6:45 am and is finished by 3:30 pm on the same day and “after that time, GSOs who have been performing that work (OLF team) either prepare for the next day’s activity, support the despatch or receipt to and from the yard…” 44 This plainly seems to be the normal activities of loading and unloading vessels at a wharf and alongside the wharf.
[96] In its initiating application, the MUA stated that employees are engaged in the occupation of waterside worker in the loading and unloading of vessels at the MOF on Barrow Island.
[97] In the hearing, the MUA highlighted:
[98] On the evidence, I am satisfied that the OLF team is comprised of employees engaged in the occupation of a waterside worker.
[99] However, the MUA also seek the Commission to reach the same conclusion for the SB and LO teams.
[100] The MUA is essentially asking the Commission to treat the employees in the SB and LO teams on the same basis as the OLF team. The MUA is seeking the same consideration for the SB and LO teams as should be given to the OLF team. In doing so, the MUA is inviting the Commission to make a comparison of one group of employees (OLF team) with other employees (SB and LO teams).
[101] In my view, if the comparison is valid, the MUA’s claim that they are waterside workers is valid. However, if the characteristics of the comparator group (OLF team) are different to the SB and LO teams, it is a wrongful comparison and the employees are not engaged in the occupation of waterside worker.
[102] In the alternative, if the MUA assert that this is not a “comparator exercise”, the result is the same, because in both cases, it is necessary to examine the role and context of the SB and LO teams and the work carried out by the employees in those teams.
[103] The SB team is based at the QCC and has two primary functions. Firstly, in what is called “reverse logistics”; that is, the collection of material no longer required on Barrow Island. Six (6) GSOs are employed in the collection and placement of the material and two (2) GSOs are employed in quarantine and remediation work in preparation of that freight leaving the Island. One (1) GSO is employed as a fumigator. Secondly, one (1) or two (2) GSOs are assigned to perform vessel quarantine checks (depending on the type of vessel); this can take approximately 45 minutes. In addition, the SB team collects waste (including food waste) and delivers that waste to various locations on the Island. 45
[104] Mr Osman’s evidence is that the SB team, depending on freight, is deployed to the MOF in support of the BBC Brisbane which is berthed at the MOF for approximately five days twice a month. 46
[105] In summary, on the evidence, the SB team’s primary function is to collect freight to be despatched off the Island, prepare that freight so it can be picked up by drivers in the T&O team and, where necessary, delivered to the MOF or WAPET landing. Separately, it has a function of making a quarantine inspection of vessels, when required.
[106] The primary purpose of the SB team is not to load and unload vessels. It is not located near the wharf. While the employees of the SB team are rotated to the MOF, that rotation is unconnected with the substantive reason of their “team” or employment.
[107] Having considered the evidence, I am unable to find that the employees in the SB team are following the occupation of a waterside worker.
[108] The LO team’s dominant responsibilities concerns the collection and delivery of air freight, logistic support to the accommodation camps, procurement and yard work at the Old Airport.
[109] The principal purpose of the LO’s team is not to load and unload vessels. The LO team is not located at the wharf areas but operates mainly at the Old Airport, Gravel Pit and locations within Oliver Yard as well as other sites.
[110] It is true that a number of the LO employees spend time at the MOF. The amount of time spent at the MOF is intended to reduce over time, but is currently 30% of work time.
[111] I am unsure as to what “once every 4 months under the rotation roster” means for the LO team as stated by Mr Osman in his written evidence. 47 It would appear that each employee spends, at least one swing or 14 days every four months at the MOF. If this is correct, it results in LO employees working 42 days in every 12 months at the MOF.
[112] In view of the primary purpose of the LO team, it could not reasonably be said that the loading or unloading vessels is work incidental, or related, to the LO team’s primary purpose.
[113] For the above reasons, I am satisfied and find that the LO team comparison with the OLF teams is not appropriate and, in the overall context, the employees are not following the occupation of waterside worker.
[114] The MUA relied upon Fenwick to such an extent that the comparison was as easy as just changing the names. However, Ludeke J concluded that the amount of time spent working on vessels was not the determinant factor – irrespective of what that amount of time was. His Honour stated that “quantity” was not the determining or dominating factor but a broader approach should be adopted which included the nature of the work and the circumstances in which the employees are employed.
[115] I am of the view that the work of the OLF team is involved in the loading and unloading of vessels and not in the more general logistics work associated with the SBS Contract. Put simply, I am not prepared to “roll up” the work of the SB and LO teams into a group of employees involved in the loading and unloading of vessels at the MOF or WAPET landing.
[116] The parameters relating to waterside workers considered in the case law are not comparable to the SB and LO teams.
[117] If I consider the criteria for following the occupation of a waterside worker and measure those against the characteristics of the SB and LO teams, they are simply not comparable.
[118] The SB and LO teams carry out, pursuant to the SBS Contract, the plain and ordinary meaning of logistics work: the preparation, transportation, distribution and storage of freight to various areas on Barrow Island.
[119] Just as case law is not prepared to determine whether an employee was a waterside worker on “time” alone, I am not persuaded to make a determination skewed by the quantity of time spent at the MOF and WAPET landing by the SB and LO teams to the exclusion of other relevant characteristics. Put shortly, there is no “mirror image” of the characteristics of the OLF, SB and LO teams; each team is different.
[120] Put simply, the SB and LO teams and their employees have a different principal purpose, dominating purpose, predominant purpose and/or substantive employment to the OLF team.
[121] In my view, it is not in dispute that the principal or substantive function of the OLF team is to load and unload cargo into or off vessels. These functions lie at the heart of a waterside worker.
[122] In conclusion, having considered the oral and documentary evidence, case law, legislation and submissions, I find that the employees employed by Toll Energy in the occupations as set out by Mr Osman in paragraph 88 (a) to (g) of his witness statement, and assigned to the OLF team are following the occupation of a waterside worker. Consequently, the MUA is entitled to represent their industrial interests pursuant to s.484(b) of the FW Act. Accordingly, an Order will be issued to reflect this Decision.
COMMISSIONER
Appearances:
D Quinn of counsel with D Cain for the MUA
C Gardner of counsel for Toll Energy.
Hearing details:
2016:
Perth,
3 October.
1 Exhibit R4 (AO-1)
2 Exhibit R4 (AO-1)
3 Exhibit R4 (73)
4 Exhibit R4 (74)
5 Exhibit R4 (93)
6 Exhibit R4 (100)
7 Exhibit R4 (106) and (107)
8 Exhibit R4 (107)
9 Exhibit R4 (104)
10 Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No.2) (1982-83) 59FLR78
11 Ibid
12 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 at [133]
13 Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No.2) (1982-83) 59FLR78
14 Ibid
15 Carpenter v Corona Manufacturing Pty Ltd PR925731 17 December 2002 paragraph 6
16 Ibid paragraph 9
17 MUA closing submissions - paragraph 1
18 Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd (1993) LBC Current Review 5 – page 107
19 Ibid page 106
20 Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd (1993) LBC Current Review 5 – page 101 and 108
21 Ibid page 101
22 Ibid page 102
23 Ibid page 102
24 Ibid page 102
25 Exhibit R1 (4)
26 Exhibit A2 (15) and (20)
27 Exhibit A2 (14) and (15)
28 MUA closing submissions – paragraph 27
29 MUA closing submissions – paragraph 19
30 Exhibit R1 (8)
31 Transcript PN394
32 Exhibit R4 (77) and (78)
33 Exhibit R4 (87)
34 Transcript PN397
35 Exhibit R4 (94)
36 Transcript PN403
37 Transcript PN403
38 Exhibit A8 (19)
39 Exhibit A8 (7)
40 Exhibit A8 (67)
41 Exhibit A8 (80)
42 Exhibit R4 (79)
43 Exhibit R4 (80)
44 Exhibit R4 (53)
45 Exhibit R4 (95) and (96)
46 Exhibit R4 (100)
47 Exhibit R4 (104)
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