Fair Work Commission|2025-08-25

Construction, Forestry and Maritime Employees Union v Northern Stevedoring Services Pty Ltd Trading AS Northern Stevedoring Services [2025] FWC 2498 (25 August 2025)

s.739 - Dispute resolution

Construction, Forestry and Maritime Employees Union

Northern Stevedoring Services Pty Ltd Trading AS Northern Stevedoring Services

Alleged dispute about any matters arising under the enterprise agreement and the NES

[1] On 14 February 2025, the Construction, Forestry and Maritime Employees Union (the CFMEU) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 3.3 of the NSS Pty Ltd Agreement 2023 (the Agreement). Northern Stevedoring Services Pty Ltd trading as Northern Stevedoring Services (NSS) is the Respondent to the application.

[2] I listed the matter for a conference on 27 February 2025. The matter did not resolve at conference, resulting in the matter being listed for arbitration.

[3] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing in Brisbane on 21 May 2025. The CFMEU was represented by Mr Samuel O'Sullivan, Legal Officer of the Maritime Union of Australia (the MUA). NSS was represented by Mr James McLean of Counsel, instructed by Allens.

[4] The following individuals gave evidence at the hearing and were cross-examined:

Mr Aaron Sperring, employee of NSS;
Mr Aaron Johnston, Deputy Secretary of the Queensland Divisional Branch of the MUA;
Mr Scott Neame, Stevedoring Manager of NSS; and
Mr John Heath, Forensic Document Examiner.

[5] At the hearing, I granted leave for NSS to file into evidence a report prepared by Mr Heath in relation to a diary note made by Mr Sperring.

[6] NSS provides stevedoring services throughout various ports in northern Queensland. A number of permanent shift work employees are employed by NSS at the Port of Townsville. Permanent shift work employees who work 1,820 hours per annum are governed by clause 4.1.1 of the Agreement. Relevant to this dispute, clause 4.1.1.3 of the Agreement provides as follows:

"Permanent Shift Work Employees will be allocated on either the day or evening shift (completing no later than 24:00) on the day prior to days rostered off. They will be available to work from the day shift on their next available day."

[7] Clause 4.1.2.3 contains an equivalent provision for a separate category of permanent shift work employees who work 1,560 hours per annum.

[8] Clause 5.4 of the Agreement provides for 'closed port days'. It provides as follows:

5.4.1 Employees will not be required to work from 16:00 Christmas Eve until 08:00 Boxing Day and 00:01 until 23:59 on Labour Day.

5.4.2 On the three (3) remaining "closed port days" (Good Friday, Anzac Day, Picnic Day) work is voluntary for Permanent Employees and payment shall be separate to the annual salary and be at one and a half (1.5) times the hourly rate prescribed hereunder, and one day shall be added to the Employees annual leave entitlement.

5.4.3 Clause 5.4.2 is provided subject to each Permanent Employee being available to work on one "closed port day" per annum. Allocation shall be scheduled by the Company in consultation with the workforce to meet its requirement and shall enable such allocation to be made on any of the "closed port days" other than those listed in Clause 5.4.1."

[9] That is, no work is required to be performed on the evening of Christmas Eve, all of Christmas Day, and up until 8:00am on Boxing Day. No work is required to be performed for all hours of Labour Day.

[10] For the public holidays of Good Friday and ANZAC Day, together with Picnic Day provided for in the Agreement, at the beginning of each year, permanent employees are required to nominate one of these three days that they will work. They will have the benefit of not being required to work the other two "closed port days", but if they do so, it is voluntary.

[11] In 2024, Picnic Day fell on 5 November 2024. On 6 November 2024, five NSS employees engaged in Townsville (the Affected Employees) were rostered to commence work at midnight, at the commencement of 6 November 2024. Three of the Affected Employees had previously nominated either Good Friday or ANZAC Day as their available closed port day to work pursuant to clause 5.4.3. The three employees did not work on 5 November 2024.

[12] The two remaining Affected Employees had nominated Picnic Day as their available closed port day, however they were not required by NSS to work on Picnic Day.

[13] The MUA contended that the rostering of the Affected Employees to the night shift commencing at 00:00 on 6 November 2024 was done in contravention of clause 4.1.1.3 of the Agreement, as Picnic Day constituted a 'day rostered off', as contemplated by clause 4.1.1.3. By the MUA's construction of the Agreement, NSS was precluded from rostering the Affected Employees until the day shift on 6 November 2024, commencing at 05:00am.

[14] NSS argued that its rostering of the Affected Employees was consistent with the Agreement. It contended that Picnic Day, a closed port day, was not a 'day rostered off' (or 'rostered day off') for the purposes of clause 4.1.1.3. As such, there was no requirement for NSS to refrain from rostering the Affected Employees until the day shift on 6 November 2024. NSS maintained that the concept of a closed port day - established by clause 5.4 of the Agreement - is entirely separate from that of a 'day rostered off', as provided by clause 4.1.1.3.

[15] The MUA proposed the following question for determination by the Commission:

"For Permanent Shift Work Employees, are the 'closed port days' of Good Friday, ANZAC Day and Picnic Day 'rostered days off' for the purposes of clauses 4.1.3 and 4.1.2.3 of the Agreement, subject to a requirement that they make themselves available to work one of those days each year?"

[16] NSS proposed the following question for arbitration:

"Are Closed Port Days 'days rostered off' for the purposes of clauses 4.1.3.3 and 4.1.2.3 of the NSS EA?"

[17] NSS submitted that the MUA's proposed question draws an "artificial distinction" between Good Friday, ANZAC Day and Picnic Day and the other closed port days. The MUA argued that the distinction is not artificial because Labour Day and Christmas Day on the one hand are treated differently by the Agreement from Good Friday, ANZAC Day and Picnic Day on the other, in that by clause 5.4.1, employees cannot be required to work under any circumstances in the span of hours provided by that clause. The MUA therefore argued that its question should be preferred, though noted that it would alternatively be acceptable for the Commission to answer the question proposed by NSS by adding a qualifier acknowledging the "supplanted treatment of Christmas Day and Labour Day".

[18] Having regard to the submissions of the parties, I have determined the following question for arbitration:

"For Permanent Shift Work Employees, are the 'closed port days' of Good Friday, ANZAC Day and Picnic Day 'rostered days off' for the purposes of clauses 4.1.3 and 4.1.2.3 of the Agreement, subject to a requirement that they make themselves available to work one of those days each year?"

[19] The MUA submitted that the purpose of the disputed clauses is to provide what it referred to as a 'rest and recuperation benefit' for permanent shift work employees by ensuring that they are not required to return to work until the day shift, no earlier than 5:00am, after a rostered day off. Permanent shift work employees are subject to irregular allocation, are only notified of a shift at 3:00pm the day before and can work ten consecutive days before being allocated a rostered day off.

[20] At the beginning of each year, permanent shift work employees are directed to nominate 14 weekends and 26 days, Monday to Friday on which they will be unavailable to work. NSS then consults with employees to ensure that the nominated unavailable days do not interfere with its minimum availability requirements. Once the nominated unavailable days are approved, they are added to the planner and treated as rostered days off. The MUA noted that NSS does not dispute the fact that the 'rest and recuperation benefit' applies where a permanent shift work employee takes a rostered day off as one of their nominated unavailable days.

[21] Similarly, at the start of the year, permanent shift work employees must choose their available closed port day. Again, NSS consults with employees to ensure the nominated available closed port days meet its requirements, and once approved, available closed port days are added to the planner.

[22] The MUA has characterised the dispute as whether, on a proper construction of the Agreement unavailable closed port days attract the 'rest and recuperation benefit'. It submitted that the 'rest and recuperation benefit' has two components: (1) that permanent employees must complete their shift by no later than 24:00 on the day prior to a rostered day off, and (2) that permanent employees are not required to return to work until, at the earliest, the day shift on the day after their rostered day off.

[23] The MUA argued that the evident purpose of the 'rest and recuperation benefit' is to provide shift workers the opportunity to rest and fully enjoy their rostered days off with the knowledge that they will not be required to work any earlier than the day shift on the following day. The MUA said that this is crucial to ensure worker safety and productivity, and that the benefit of a rostered day off would be undermined if an employee was required to sleep for most of it in preparation for an upcoming night shift commencing earlier than 5:00am.

[24] Although clauses 4.1.1.3 and 4.1.2.3 of the Agreement use the phrase "days rostered off", the MUA submitted that the benefit of the clauses is intended to apply in circumstances where a permanent shift worker has the "ubiquitously understood term of a 'rostered day off' or 'RDO'". As such, to avail themselves of the 'rest and recuperation benefit', permanent shift work employees must have a 'rostered day off'.

[25] Where a permanent shift work employee is allocated a rostered day off through the normal allocation process, the MUA submitted that the 'rest and recuperation benefit' applies. However, the MUA argued that NSS has unilaterally decided that unavailable closed port days do not constitute rostered days off.

[26] The MUA submitted that this defies the language of the Agreement. It argued that, as a matter of logic, a day of work that the Agreement expressly denotes as voluntary must be a rostered day off where it is not worked by an employee. Consequently, such a day must attract the 'rest and recuperation benefit'.

[27] Illustratively, the MUA submitted that because one of the Affected Employees nominated Picnic Day as an unavailable closed port day, NSS was prohibited by the Agreement from rostering that Affected Employee until the day shift after Picnic Day.

[28] The MUA therefore submitted that the answer to its question for determination is "yes".

[29] NSS argued that the Agreement in one clause entitles permanent shift work employees to a prescribed number of "days rostered off", and in another clause separately prescribes a number of "closed port days". It submitted that the MUA has attempted to extend the restrictions relating to the allocation of work following days rostered off to the distinct concept of a closed port day.

[30] NSS noted that where a permanent shift worker voluntarily works a closed port day other than the one nominated available day, the worker will receive payment in accordance with clause 5.4.2 of the Agreement, which NSS said is a distinct payment mechanism to that governing payment for work performed on days rostered off.

[31] NSS took issue with the MUA's use throughout its submissions of the terms "nominated unavailable days" and "rest and recuperation benefit". NSS submitted that these terms are inventions of the MUA with no foundation in the Agreement and misdirect the Commission's enquiry. NSS submitted that the focus must remain on the text of the Agreement, considered in context.

[32] Turning to text and context, NSS identified three features of the Agreement, which when considered in context, disclose that the question for arbitration must be answered in the negative. First, NSS submitted that the structure of the Agreement is such that closed port days are not days rostered off. "Days rostered off" is a concept developed in clause 4.1 of the Agreement, while "closed port days" are dealt with in a separate part of the Agreement, in a separate clause and under a separate heading. There is also no reference to "days rostered off" in the part of the Agreement that deals with closed port days.

[33] Second, different payment mechanisms apply where an employee voluntarily works a day rostered off as opposed to a closed port day. NSS argued that this demonstrates that closed port days and days rostered off are different concepts which attract distinct entitlements and protections. Clause 5.4.2 deals with the payment for employees who work on a closed port day. Clause 5.3.2, which governs payment for permanent employees who volunteer to work on rostered days off, states as follows:

"5.3.2 In the event that a Permanent Employees [sic] volunteers to work on their rostered days or weekend off or volunteers to work in excess of their agreed targeted hours then they will receive payment for the hours worked by applying the above penalties to the appropriate supplementary hourly rate based on the grade to which they are allocated."

[34] The "above penalties" referred to in clause 5.3.2 are those outlined in clauses 5.3.1, which deals with shift penalties and overtime. It prescribes penalty and overtime rates ranging from 1.5 times the ordinary rate to 4 times the ordinary rate.

[35] Third, NSS submitted that it is significant that where it was intended that there be restrictions on allocation of employees on the days either side of a closed port day, these restrictions are explicitly identified in the Agreement in clause 5.4.1. The obvious corollary of this is that where no such restrictions are identified in respect of other closed port days, no restrictions were intended to apply. NSS argued that this inference accords with orthodox principles of construction.

[36] NSS also contended that there are a number of practical difficulties with, and ambiguities arising from, the MUA's construction. First, NSS submitted that it is unclear whether the MUA contends that Labour Day and Christmas Day are days rostered off. If so, NSS submitted that the restrictions attaching to days rostered off cannot be sensibly reconciled with the express restrictions attaching to Labour Day and Christmas Day in clause 5.4.1. If not, NSS argued it would then lead to the absurd result whereby certain closed port days are "days rostered off" and others are not.

[37] Second, NSS submitted that it is unclear whether the MUA argues that a closed port day is still a day rostered off if it is the particular closed port day that NSS requires the worker to be available to work. Similarly, NSS argued it was unclear whether the MUA considers that the closed port day assumes the status of a day rostered off if, despite being available to work, the worker is not allocated. Whatever the MUA's argument, NSS submitted that an absurd result would follow. Either a day on which an employee is required to work would be a day rostered off, or certain closed port days would be days rostered off, while others would not.

[38] Third, NSS submitted that it was unclear whether the MUA's position is that those closed port days that are days rostered off would, if worked, attract the penalty rates attaching to work performed on a closed port day (clause 5.4.2), or that they would attract the potentially more generous penalty rates attaching to days rostered off (clause 5.3.2).

[39] Fourth, noting that NSS retains the discretion to change a permanent shift worker's schedule by designating a later closed port day as the available closed port day (provided the required notice in accordance with clause 4.2.6 of the Agreement is given), NSS submitted that it is unclear how the MUA contends the restrictions attaching to days rostered off would apply in practice. NSS submitted that there may be a scenario where it rostered a permanent shift worker to work the day before a closed port day on the basis that, at the time of allocation, it was the available closed port day, before the schedule was changed and a later closed port day was designated as the available day.

[40] NSS submitted that the question for arbitration must be answered in the negative.

[41] In reply, the MUA submitted that the 'absurdities' relied on by NSS fall away on a proper construction of the Agreement.

[42] The MUA submitted that rostered days off are comprised of closed port days, nominated unavailable days and any rostered day off as a result of the normal allocation process. Labour Day and Christmas Day are given explicit treatment by the Agreement. No such treatment is given to Good Friday, ANZAC Day or Picnic Day. Permanent employees are required to make themselves available for one of those three days. The MUA submitted that clauses 4.1.1.3 and 4.1.2.3 (i.e. the 'rest and recuperation benefit') do not apply on the available closed port day, irrespective of whether the employee is ultimately allocated.

[43] The MUA argued that the Agreement makes clear that where a permanent employee works on Good Friday, ANZAC Day or Picnic Day, they are to be paid one and a half times the hourly rates set out in clause 5.4.2. Per clause 5.3.1, where a permanent employee works on a nominated unavailable day, they are paid the rates set out in that clause.

[44] The MUA submitted that there is a clear distinction between Labour Day and Christmas Day on the one hand, and Good Friday, ANZAC Day and Picnic Day on the other. Clause 5.4.1 provides that no employee (that is, all categories of employment), will be required to work from 16:00 Christmas Eve until 08:00 Boxing Day and 00:001 until 23:59 on Labour Day. Clause 5.4.2 however provides that the voluntary closed port days apply only to permanent employees.

[45] In practice, the MUA argued that NSS has for many years treated the unavailable closed port days as rostered days off for the purposes of clauses 4.1.1.3 and 4.1.2.3 of the Agreement. The MUA submitted that the purpose of any rostered day off is to provide employees an opportunity to rest and recuperate. Putting to one side the Agreement's express treatment of Labour Day and Christmas Day, the MUA submitted that Good Friday, ANZAC Day and Picnic Day should be treated as rostered days off. It submitted that this construction accords with the overarching purpose of the relevant clauses of the Agreement and of rostered days off generally. The MUA submitted that the construction preferred by NSS is overly literal, narrow and pedantic.

[46] The MUA submitted that by arguing that the obvious corollary of the Agreement explicitly identifying restrictions in clause 5.4.1 regarding Christmas Day and Labour Day is that no such restrictions apply for the remaining closed port days, NSS is effectively arguing that Labour Day should be given the same treatment as Good Friday, ANZAC Day and Picnic Day. This is because the restriction in clause 5.4.1 in respect of Labour Day is that employees will not be required to work on that day. The MUA submitted that if the parties intended equal treatment for permanent employees to apply to each of Labour Day, Good Friday, ANZAC Day and Picnic Day, the Agreement would expressly state as much.

[47] Instead, the MUA argued that the obvious corollary of the supplanted treatment of Christmas Day and Labour Day is that Good Friday, ANZAC Day and Picnic Day are rostered days off for the purposes of clauses 4.1.1.3 and 4.1.2.3, subject to the availability requirement in clause 5.4.2 of the Agreement.

[48] During the hearing I enquired as to NSS's position on whether the rostering restrictions in clauses 4.1.1.3 and 4.1.2.3 apply to the day following a period of annual leave. I issued directions requiring NSS to file submissions in relation to this issue. Following receipt of NSS's submissions, I invited the MUA to file any supplementary submissions in reply.

[49] NSS submitted that clauses 4.1.1.3 and 4.1.2.3 do not apply to the day following a period of annual leave. When properly read, NSS submitted that the restrictions in those clauses apply only to the days off conferred by clauses 4.1.1.2 and 4.1.2.2. NSS submitted that this position is consistent with the provisions of the Act which confer an entitlement to 'weeks' (or 'days' in the case of personal leave) of leave. NSS therefore argued that to extend the restrictions in clauses 4.1.1.3 and 4.1.2.3 to days following period of annual leave would represent a departure from how leave is administered under the Act.

[50] While acknowledging that its practice has not been to regularly roster employees returning from a period of annual leave to shifts commencing earlier than the day shift, NSS submitted that this has only been because there has been no operational need for it to do so. NSS stated that it will roster employees on a shift commencing prior to the day shift following periods of annual leave if there is ever an operational need to do so.

[51] NSS submitted that its position with respect to the application of clauses 4.1.1.3 and 4.1.2.3 to the day following annual leave periods supports its position in the dispute.

[52] The MUA submitted that as a matter of fact, NSS has not rostered employees returning from a period of annual leave to shifts commencing earlier than the day shift, irrespective of any operational need. It argued that the 'rest and recuperation benefit' applies to periods of annual leave, with the result being that NSS cannot allocate an employee returning to work following a period of annual leave until the day shift.

[53] The MUA highlighted two main reasons why NSS's supplementary submissions fail. First, by arguing that the 'rest and recuperation benefit' only applies to clauses 4.1.1.2 and 4.1.2.2 (i.e. the nominated unavailable days), the MUA argued that NSS has ignored clauses 4.2.10(i) and 4.2.16 of the Agreement, and the evidence of Mr Sperring and Mr Johnston, who said that the 'rest and recuperation benefit' applies after an employee receives a rostered day off after working ten consecutive days. Clause 4.2.10(i) states that employees shall not be required to work more than ten consecutive calendar days. Clause 4.2.16 states that where an employee has worked the maximum allowed shifts per clause 4.2.10, they will be granted a day off "immediately thereafter". When read together, the MUA submitted that these clauses provide for the application of the 'rest and recuperation benefit' when an employee receives a rostered day off after working ten consecutive days.

[54] Second, where NSS cautions the Commission against accepting a construction that represents a departure from how annual leave is administered under the Act, the MUA submitted that the drafters of enterprise agreements have significant bargaining autonomy. It noted that an enterprise agreement may include a term that supplements the National Employment Standards (NES) only where the effect of that term is not detrimental to an employee as compared to the NES. Therefore, the MUA argued that the Agreement can include a term creating a supplementary entitlement to annual leave where there is no detrimental effect on stevedores at NSS terminals when compared to the NES. Therefore, the administration of annual leave under the Act did not prevent the drafters from the Agreement by applying the 'rest and recuperation benefit' to periods of annual leave.

[55] Mr Aaron Sperring is a stevedore employed by NSS at the Townsville terminal. He has worked at the terminal since May 2012 and is a permanent shift work employee. He was also a member of the bargaining committee for the Agreement and its predecessor, the NSS Pty Ltd Agreement 2018 (the 2018 Agreement).

[56] Mr Sperring stated that shift workers are allocated shifts irregularly. They receive their shift allocations at 3:00pm on the day before the shift, regardless of whether they have been allocated to the day shift, evening shift or night shift. NSS can require shift workers to work ten consecutive days before they are given a rostered day off. After the rostered day off, they can then immediately be required to work another ten consecutive days.

[57] In relation to nominated unavailable days, Mr Sperring stated that permanent shift work employees nominate their choice of 14 weekends and 26 weekdays each year. Additionally, there are five closed port days, being Christmas Day, Labour Day, Good Friday, ANZAC Day and Picnic Day. Mr Sperring stated that no employee at the terminal is required to work from 4:00pm on Christmas Eve until 8:00am on Boxing Day, and all day on Labour Day. The three remaining closed port days are voluntary, however permanent employees must make themselves available to work on one of these voluntary closed port days. NSS does not require these employees to be available on the two remaining voluntary closed port days.

[58] Before a rostered day off, shift workers are allocated on either the day or evening shift, ending no later than 24:00, and are not required to work until the day shift after their rostered day off. Mr Sperring referred to this as the 'rest and recuperation benefit'. He stated that this benefit allows shift work employees to recover from late nights and early mornings so that they can perform their work safely and productively. Mr Sperring stated that the 'rest and recuperation benefit' allows employees to fully enjoy their days off, knowing that they will not be required to wake up in the middle of the night to attend a night shift.

[59] At the beginning of each year, permanent shift work employees complete a roster panel form. On the form, beneath the heading "Nominated Dates", is a table containing dates which are highlighted either green (accepted) or pink (declined). Mr Sperring stated that this represents a consultation process, whereby NSS either accepts or declines nominated unavailable days in line with its minimum availability requirements. Once accepted, the nominated unavailable days are treated as rostered days off.

[60] On the form required to be completed there is text which reads, "Volunteered Closed Port Day to Work", where employees can tick a check box nominating either Good Friday, ANZAC Day or Picnic Day. In 2024, Mr Sperring originally nominated Good Friday as his available closed port day, but after consultation with NSS he was directed to make himself available on a different closed port day. He then chose ANZAC Day as his available closed port day for that year. Once an available closed port day is accepted by NSS, it is added to the planner for the coming year.

[61] Upon receiving the roster panel form, Mr Sperring stated that employees are also directed to complete a leave application form. The roster panel form and the leave application form are accompanied by an explanatory memorandum, which contains instructions on how the forms should be completed and details as to how the forms and leave applications will be processed.

[62] Mr Sperring's evidence was that historically, NSS has applied the 'rest and recuperation' benefit where a shift work employee is given a rostered day off as part of the normal allocation process, and where they take a rostered day off as one of their nominated unavailable days. He said that it was not clear to him why NSS decided to change this practice in respect of unavailable closed port days.

[63] In 2024, Picnic Day was held on 5 November to coincide with Melbourne Cup Day. Mr Sperring did not work that day. He was, however, rostered to work at midnight commencing 6 November 2024. A colleague named by Mr Sperring nominated Picnic Day as his available closed port day to work. The colleague was then not rostered to work from midnight commencing 6 November 2024 despite having the requisite skills and experience to do so.

[64] Mr Sperring stated that on 4 November 2024, he received approximately five phone calls from colleagues expressing concern with NSS rostering employees at midnight immediately following unavailable closed port days; that is, working from midnight after having had the prior day off work. Mr Sperring agreed that he had a telephone conversation with Mr Scott Neame, Stevedoring Manager, during which they put their respective positions on the Picnic Day rostering issue to each other, but no agreement was reached.

[65] Mr Sperring stressed that historically, unavailable closed port days have been treated by NSS as rostered days off for the purposes of clauses 4.1.1.3 and 4.1.2.3, and that this has been the case across the numerous agreements in place during his 15 years of employment with NSS.

[66] Mr Sperring agreed that NSS has rostered employees to work at midnight immediately after Labour Day and said that this is because clause 5.4.1 of the Agreement expressly provides that employees will not be required to work from 00:01 to 23:59 on Labour Day. Similarly, he agreed that NSS has rostered employees to work at midnight immediately following available closed port days. However, he maintained that NSS has not historically rostered employees to work at midnight immediately following unavailable closed port days.

[67] In response to Mr Neame's evidence that in 2021 and 2022, NSS rostered employees to work commencing at midnight on the day immediately following Labour Day and no complaints were received about this, Mr Sperring stated that there would be nothing to complain about, given the Agreement provides express treatment of Labour Day in clause 5.4.1.

[68] Mr Sperring stated that in Mr Neame's evidence he has grouped all closed port days into a single incompatible group, which ignores the fact that clause 5.4.1 of the Agreement provides explicit treatment of Christmas Day. Mr Sperring further stated that it is incorrect to say that the occasions where NSS has not rostered a shift for midnight the day after a closed port day has only been because of the absence of any operational need. Instead, Mr Sperring stated that this has not happened because NSS is not permitted to do so.

[69] In response to a summary of labour requirements for closed port days in recent years provided by Mr Neame in his evidence, Mr Sperring stated that the examples provided by Mr Neame do not contradict Mr Sperring's claim that NSS has historically treated closed port days as rostered days off. Mr Sperring stated that the examples provided by Mr Neame were "red herrings" and conflated the rostering restrictions for Christmas Day and Labour Day on one hand, and Good Friday, ANZAC Day and Picnic Day on the other. Mr Sperring characterised the examples provided by Mr Neame as belonging to one of the following groups:

(a) Labour Day, where it is not contested the NSS is permitted to roster employees at midnight;

(c) Days on which available volunteer labour was utilised;

(d) Days on which certain employees were rostered at midnight immediately following an unavailable closed port day.

[70] Mr Sperring stated that the only day that falls within category (d) above was Picnic Day 2024. He considers that Mr Neame's examples merely complicate a straightforward matter.

[71] Mr Sperring denied that the MUA's interpretation of the Agreement leads to practical difficulties and unsatisfactory ambiguities. He stated that under the Agreement, rostered days off are comprised of closed port days, nominated unavailable days and any day rostered off as a result of the normal allocation process. The treatment of Labour Day and Christmas Day is expressed in the Agreement, while the treatment of the remaining closed port days is not. Mr Sperring stated that the for the available closed port day, the 'rest and recuperation benefit' applies whether or not employees are ultimately allocated to work.

[72] When a permanent employee works on Good Friday, ANZA Day or Picnic Day, Mr Sperring stated that they are paid at 1.5 times the hourly rate as set out in clause 5.4.2 of the Agreement. When a permanent employee works on a nominated unavailable day, they are paid at the rates set out in clause 5.3.1, but as a matter of practice, NSS does not request employees to work on nominated unavailable days.

[73] Mr Sperring gave evidence that in 2018, two permanent shift work employees nominated Good Friday as one of their unavailable closed port days. Despite this, Mr Sperring said these employees were rostered to work at midnight immediately following Good Friday. One of the employees was unable to work the shift because he was assisting his ill mother, however Mr Sperring stated that the other employee did work the shift, because he was threatened with disciplinary action by NSS if he did not work the shift.

[74] Mr Sperring stated that he raised the Good Friday 2018 issue with the employee consultative committee on 8 March 2019. He recalled a conversation with Mr Jeff Weightman, NSS Operations Manager in which Mr Sperring stated that he received an assurance from Mr Weightman that the incident would not be repeated.

[75] Mr Sperring tendered a photograph of diary notes said to have been taken by Mr Sperring during the 8 March 2019 meeting. Relevantly, the diary notes include the following extract:

"5. 5.4.1 Won't happen again. day shift after CPD

G HANLEY N MORELY".

[76] In answering questions during the hearing, Mr Sperring concedes that he contemporaneously wrote "5. 5.4.1 Won't happen again." He is of the view that he recorded the balance of what is written above shortly after the meeting and having reviewed his notes. He accepts he more than likely used a different pen.

[77] Mr Aaron Johnston is the Deputy Secretary of the Queensland Divisional Branch of the MUA. Before gaining employment with the MUA, Mr Johnston worked as a stevedore for DP World Pty Ltd for 17 years. He was also a workplace union delegate from 2013. On behalf of the MUA, Mr Johnston participated in negotiations for the Agreement.

[78] Mr Johnston stated that permanent shift work employees are subject to completely irregular shift allocation and are given notice of a shift at 3:00pm the day before. He explained that of the five closed port days, work is voluntary on Good Friday, ANZAC Day and Picnic Day, subject to employees making themselves available to work one of those days. Before a closed port day, employees are assigned to work either the day or evening shift, ending no later than midnight. They are then not required to return to work until the day shift following the rostered day off.

[79] By virtue of clauses 4.2.6 and 4.2.7 of the Agreement, Mr Johnston stated that shift work employees are at the mercy of irregular shift allocation. Regardless of whether they have been allocated to a day shift, evening shift or night shift, employees will be notified at 15:00 the day before. Mr Johnston also noted that in accordance with clause 4.2.10, employees can be rostered to work on 10 consecutive days before they are given a rostered day off. Once an employee receives a rostered day off, the 10-day limit is reset. Therefore, Mr Johnston stated that a stevedore could be required to work 30 days of a 33-day block.

[80] In relation to closed port days, Mr Johnston stated that, like nominated unavailable days, permanent shift work employees nominate their available closed port day, and NSS consults with the workforce as to the approval of the chosen day. Following approval, the available closed port day is added to the planner.

[81] Mr Johnston stated that the 'rest and recuperation benefit' is guaranteed by clauses 4.1.1.3 and 4.1.2.3 of the Agreement, which provide that employees are not required to return to work until the day shift after their rostered day off. He stated that stevedoring work in northern Queensland is tiring, and the 'rest and recuperation benefit' is necessary to ensure worker safety and productivity. Mr Johnston also stated that the benefit allows stevedores the opportunity to enjoy a rostered day off without the stress of waking up in the middle of the night to prepare for a night shift. He said that there would be little value in a rostered day off if an employee were required to sleep for most of it.

[82] Regarding the historical practice of NSS, Mr Johnston noted that it was not in dispute that the 'rest and recuperation benefit' applies both where a permanent shift work employee is given a rostered day off as part of the normal allocation process and in respect of nominated unavailable days. Mr Johnston stated that it was unclear to him why NSS has disregarded its longstanding process of treating unavailable closed port days as rostered days off.

[83] Despite Picnic Day 2024 being one of the unavailable closed port days for the Affected Employees, Mr Johnston stated that NSS allocated each of them to work at midnight following Picnic Day, instead of rostering permanent employees who had nominated Picnic Day as their available closed port day, as well as the casual workforce.

[84] Mr Johnston stated that he had telephone conversations with Mr Neame on 4 and 5 November 2024. On 4 November 2024, they discussed the rostering arrangements for closed port days. Mr Johnston denied that during this conversation he said that he agreed with Mr Neame's position and that he would confirm this with Mr Sperring. Instead, his evidence was that he merely said he would discuss the matter further with Mr Sperring. On 5 November 2024, after Mr Johnston had spoken with Mr Sperring, he called Mr Neame to reiterate that the MUA did not agree with Mr Neame's interpretation of the Agreement.

[85] Mr Scott Neame has been employed by NSS since 2008, and most recently as the Stevedoring Manager since January 2024. In his current role, Mr Neame is responsible for the stevedoring operations for Townsville, Mackay and Gladstone.

[86] Mr Neame stated that the Agreement contemplates irregular allocation of shifts, which is why permanent employees are able to nominate 14 weekends and 26 weekdays each year on which they are unavailable, which the Agreement refers to as days rostered off. Mr Neame stated that a closed port day is a separate concept under the Agreement.

[87] Mr Neame explained the allocation and rostering process for Picnic Day 2024. At 2:28pm on 4 November 2024, labour allocations for the night shift commencing at midnight on 6 November 2024, the day after Picnic Day, were released. Each of the Affected Employees were rostered to work on that night shift. At approximately 2:45pm, Mr Neame received a call from Mr Sperring, who said that NSS could not require him to start before the day shift on the day following Picnic Day. Mr Neame explained to Mr Sperring that this was incorrect, and that the restriction only related to requiring employees to work on the closed port day itself.

[88] At approximately 3:36pm on 4 November 2024, Mr Neame called Mr Johnston. Mr Neame's evidence was that they had a nine-minute conversation during which they discussed the operation of the Agreement in relation to closed port days and the conversation he had with Mr Sperring approximately an hour earlier. Mr Neame stated that at the conclusion of the conversation, Mr Johnston said he agreed with the position Mr Neame had communicated to Mr Sperring and would call Mr Sperring to confirm this.

[89] The following day, Mr Neame received another call from Mr Johnston. Mr Neame stated that Mr Johnston said he had changed his mind from their previous conversation and that a closed port day should be a 32-hour period in which no employee was required to work. Mr Neame stated that he asked Mr Johnston to identify the clause of the Agreement that supported this, but Mr Johnston could not do so.

[90] Mr Neame stated that there has been no longstanding practice of NSS treating closed port days as days rostered off. Mr Neame stated that NSS rostered employees to work the night shift commencing at midnight immediately following Labour Day in both 2021 and 2022, and at 1:00am immediately following Labour Day 2024. Mr Neame said that the rostering of employees immediately after Labour Day in 2021 and 2022 is equivalent to NSS's rostering arrangements for Picnic Day in 2024. Mr Neame stated that NSS did not receive any complaints from employees about these rostering arrangements at the time.

[91] While he acknowledged that it is true that NSS does not always require employees to work the night shift commencing at midnight immediately following a closed port day, Mr Neame stated that where this has not occurred, it has only been because of the absence of any operational need to do so, and not because NSS is not entitled to do so.

[92] Mr Neame provided the following summary of labour requirements for Closed Port Days in recent years:

"(a) Labour Day 2021 - there were two vessels at Port:

(i) one vessel did not require any particular skilled labour and was rostered with available volunteer labour on Labour Day, and no additional labour was required prior to the following day shift;

(ii) the second vessel required skilled labour that was not available on the Closed Port Day based on the available volunteer labour and was acquitted with necessary skilled labour on the shift commencing at 00:00 the day after the Closed Port Day;

(b) Good Friday 2021 - no shipping work was required, therefore no labour was required prior to the following day shift;

(c) ANZAC Day 2021 - the only work required was for the Lead Train which was rostered with two available volunteer workers, and so no additional labour was required prior to the following day shift;

(d) Picnic Day 2021 - there were two vessels at Port:

(i) the first vessel was rostered with three available volunteer workers, and no additional labour was required prior to the following day shift;

(ii) the second vessel was also rostered with available volunteer workers, and no additional labour was required prior to the following day shift;

(e) Labour Day 2022 - there were two vessels at Port and both were rostered with necessary skilled labour on the shift commencing at 00:00 the day after Labour Day;

(f) Good Friday 2022 - there were no vessels at Port, therefore no labour was required prior to the following day shift;

(g) ANZAC Day 2022 - there was one vessel at Port which was staffed across two shifts with available volunteer labour, therefore no additional labour was required prior to the following day shift;

(h) Picnic Day 2022 - there was one vessel at Port which was staffed across two shifts with available volunteer labour, therefore no additional labour was required prior to the following day shift;

(i) Labour Day 2023 - there were no vessels at Port, therefore no additional labour was required prior to the following day shift;

(j) Good Friday 2023 - no shipping work was required, therefore no additional labour was required prior to the following day shift;

(k) Picnic Day 2023 - there was only terminal work required, so five available volunteer employees were rostered to complete this work on Picnic Day, however no additional labour was required prior to the following day shift;

(l) Labour Day 2024 - there was one vessel at Port and available volunteer casual employees were rostered to work the day shift on Labour Day and permanent employees were rostered to continue work from 01:00 the following day;

(m) Good Friday 2024 - there were two vessels at Port, which were both rostered with available volunteer employees to complete this work on Good Friday, however no additional labour was required prior to the following day shift;

(n) ANZAC Day 2024 - there was one vessel at Port which was staffed with skilled labour from 00:00 the day following the Closed Port Day;

(o) Picnic Day 2024 - there were two vessels at Port, which were staffed with skilled labour rostered to work from 00:00 the day following the Closed Port Day."

[93] Mr Neame stated that NSS does not require any of its employees to work on any closed port day other than the nominated available closed port day in accordance with clause 5.4.3. He stated that none of the Affected Employees were rostered to work between 00:01 and 23:59 on Picnic Day, and each of them were rostered to work the night shift from 00:00 to 7:00am on 6 November 2024, being the day after Picnic Day. However, in evidence given during the hearing, Mr Neame clarified that casual workers worked Labour Day in 2021.

[94] Mr Neame noted that two employees who nominated Picnic Day 2024 as their available closed port days were not required to work that day as they had both worked until 00:00 on the day leading into Picnic Day. Mr Neame said that NSS used Picnic Day to reset the rostering arrangements for both of these employees. These employees were also not rostered to work the shift commencing at 00:00 immediately after Picnic Day. Mr Neame stated that this was for two reasons. First, that the shift was no longer subject to the 24-hour closed port day period and alternative labour was available. Second, Mr Neame stated that if these employees had been rostered to work the shift commencing at 00:00, it would have affected NSS's rostering for the following week due to the number of night shifts they completed in the week prior.

[95] On 20 May 2025, the day prior to the hearing of this matter, NSS sought leave to tender a report prepared by Mr John Heath, a Forensic Document Examiner, in relation to the diary note of Mr Sperring set out at [75]. At the hearing, I admitted Mr Heath's report into evidence and allowed the MUA the opportunity to cross-examine Mr Heath.

[96] In his report, Mr Heath set out that he had received instructions from Allens to carry out an examination of Mr Sperring's diary note for the purpose of determining whether the written entry had been altered, modified or added to from an original written entry. Mr Heath identified that a limitation of his report was the limited time available to carry out his examination, noting that he received a letter of instructions for a preliminary examination on 19 May 2025 and instructions to proceed with a full examination on 20 May 2025, and the report was prepared on 20 May 2025.

[97] Mr Heath provided the following comments and observations in his report:

"The majority of writing present on the examined page shows a consistent black ink tint and line appearance.

The entry 'day shift after CPD and 'G HANLEY N MORELY' display a consistent black ink tint, but different to the black ink tint of the balance of written entries on the page.

The various entries numbered 1 through 10 show a blank line separation between the written details present adjacent to each number 1 through 10, excluding the entries at number 5 where the entries are present on two lines.

The majority of (uncontested) entries on the page display an expanded written text, with expanded space be the letters and an expanded space between the words.

The first four written figures and words, adjacent to the number 5. appear consistent in appearance to the majority of entries present on the page.

The entry 'day shift after CPD' displays a cramped letter spacing and word spacing, inconsistent with the balance of writing on the page.

The entry 'G HANLEY N MORELY' appears cramped, when compared to the balance of uncontested entries on the page.

There is evidence of an (mechanical) abrasion to the page in the vicinity of the entry 'day shift after' at Point number 5.

There is no apparent damage to the written words 'day shift after', indicating that the abrasion occurred prior to the written entry.

The majority of written entries, excluding some of the entries on line 5 (see above) appear consistent in word spacing, letter spacing and horizontal alignment to the page lines, excluding the entry 'Manager' at Point 6 (second line), which appears to have been added after the line was written, or at a later time."

[98] Mr Heath reached the following conclusion:

"The entries 'day shift after CPD' and 'G HANLEY N MORELY' have been written in a different writing session or sessions to the balance of written entries on the page. (See Conclusion Level 1 attached).

It is not possible to determine when those identified entries were added, or indeed, whether both entries were written at the same time."

[99] Having regard to Mr Heath's observations and my own conclusions that the entries were written using a different pen and at a different time, I have decided to accept that the following was contemporaneously written in the diary:

[100] The remaining words were not written contemporaneously, and I am not inclined to accept Mr Sperring's evidence that the additional words were written shortly thereafter. I place no weight on the additional words.

[101] In making the Agreement, the parties have clearly recognised the importance of ensuring that employees are not required to work on special occasions. Most importantly, the parties have blocked out work being performed from 4:00pm on Christmas Eve, right through until 8:00am on Boxing Day, and all of Labour Day.

[102] On three other occasions, Good Friday, ANZAC Day and Picnic Day, these are treated as special days, over and above any other public holidays. Permanent shift work employees are protected from working at least two of these days by being required to only have to volunteer to work one of the three days. There is sanctity in two of these days not being required to be worked. Other public holidays such as Australia Day, Easter Sunday and Easter Monday are not afforded the same protection.

[103] Having the right not to work two of the above prescribed days is included in the employees' annual salary; that much is clear from clause 5.4.2 of the Agreement. Where the employee is required to work one of the three prescribed days as the day that they volunteer to work (or are conscripted to in order to balance the roster), the employee will be paid an additional amount and secure an additional day off work.

[104] Carrying such significance, it makes no sense at all that employees would be expected to sleep on their special day off work, presumably in the afternoon/early evening in order to safely commence work the next day at midnight. What use is a prescribed day off work if one is required to sleep the afternoon or early evening in preparedness for a midnight start? It is just as important for employees to be returning to work well-rested after a closed port day as it is any other day that they are rostered off. That is why employees are not permitted to be rostered on any earlier than day shift.

[105] Despite the Respondent's submissions in respect of how it treats annual leave, and its assertion that it could roster employees at midnight following a day of annual leave if it wanted to, but in practice does not roster before 5:00am, I form the view that not only are the closed port days rostered days off for the purposes of clause 4.1.1.3, so too are annual leave days. Again, what is the point of having a paid day off work if one is expected to sleep the afternoon or early evening in preparedness for a midnight start in order to safely perform work? However, the manner in which the day following an annual leave day is worked is not presently a question before the Commission.

[106] Tellingly, the employees the subject of this dispute are paid an annualised salary and the Agreement makes provision for those employees to enjoy two of the proclaimed closed port days as days when they do not have to work. The employees are literally rostered off work; those days are days rostered off/rostered days off. The closed port days are not some distinct, inferior category of day off whereby employees are not entitled to the full benefit of the day off.

[107] I am satisfied that having enjoyed those two (separate) days off work and having regard to the principles outlined in AMWU v Berri Pty Limited (Berri),[1] the employees are not to be rostered to work following a closed port day until day shift, at the earliest, the following day.

[108] I do not consider it necessary to provide a definitive view as to how the day following Labour Day is to be treated by the parties. There appears to be some consensus that employees can be rostered to work commencing midnight after Labour Day on account of 5.4.1 being very prescriptive and peculiar to that particular day.

[109] For the reasons given, the question posed for determination is answered as follows:

"For Permanent Shift Work Employees, are the 'closed port days' of Good Friday, ANZAC Day and Picnic Day 'rostered days off' for the purposes of clauses 4.1.3 and 4.1.2.3 of the Agreement, subject to a requirement that they make themselves available to work one of those days each year?"

[110] The dispute is determined accordingly.

J McLean of Counsel, instructed by Allens, for the Respondent.

Printed by authority of the Commonwealth Government Printer

Construction, Forestry and Maritime Employees Union v Northern Stevedoring Services Pty Ltd Trading AS Northern Stevedoring Services [2025] FWC 2498

At a glance

Court

Decision date

Source

Judgment (164 paragraphs)

Construction, Forestry and Maritime Employees Union v Northern Stevedoring Services Pty Ltd Trading AS Northern Stevedoring Services [2025] FWC 2498 (25 August 2025)

Parties

Legislation Cited (1)