s.739 - Application to deal with a dispute

Construction, Forestry and Maritime Employees Union

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] On 8 December 2023, the Construction, Forestry and Maritime Employees Union (the MUA/the Applicant) lodged an application (the Application) pursuant to s.739 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a dispute with Svitzer Australia Pty Ltd (Svitzer/the Respondent). The dispute relates to the engagement and reduction of Leave In Running (LIR) crews in Svitzer's tugboat operation in Port Jackson and Port Botany, as covered by the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2023 (the Agreement).

• [2] An associated matter between the parties was previously subject to dispute and a decision before me in matter C2022/8414 (the earlier matter).

• [3] In a decision [ [2023] FWC 578] issued on 20 June 2023, I extended Mr Campbell's contract until 31 December 2023 (the earlier decision).

• [4] The present dispute was filed with a 'degree of urgency', with the MUA stating that Svitzer sought to terminate the employment of the LIR tugboat crew in Sydney on 31 December 2023. A number of conferences were convened in mid-December 2023; however, it was unable to be resolved.

• [5] The Hearing took place in Sydney on 14 March 2024.

• [6] The Australian Institute of Marine and Power Engineers (AIMPE) sought to intervene and be heard in this matter as an interested party. With consent of the parties, this request was granted.

• [7] Leave was granted pursuant to s.596 of the FW Act for the parties to be represented at the Hearing. The MUA was represented by Mr Oshie Fagir of Counsel. Svitzer was represented by Mr Luis Izzo, Managing Director - Sydney Workplace, Australian Business Lawyers and Advisors. AIMPE was represented by Mr Greg Yates, Senior National Organiser.

• [8] Mr Paul Garrett, Deputy Secretary, Branch Presiding Officer, gave evidence for the MUA at the Hearing. Mr Dylan Sheehan, General Manager, East, gave evidence for Svitzer.

• [9] It is also not in dispute that the MUA attempted to resolve this dispute with Svitzer through the Dispute Settling Procedures of the Agreement before making this Application to the Commission.

• [10] Clause 10 of the Agreement provides the Disputes Settling Procedure:

"10. Continuity of Operations and Dispute Resolution Procedure

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

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

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

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

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

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

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

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

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

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

• [11] Clause 11 provides the requirements for Consultation:

"11. Consultation, Communication and Information Sharing

This clause does not affect the operation of clauses 13 (Reduction, Cessation and Growth) or clause 40.3 (Variations to the POPs).

11.1.1 has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the Employees; or

11.1.2 proposes to introduce a change to the regular roster or ordinary hours of work of Employees

11.2 For a major change referred to in paragraph 11.1.1:

11.2.1 the Employer must notify the relevant Employees of the decision to introduce the major change; and

11.3 The relevant Employees may appoint a representative for the purposes of the procedures in this term.

11.4.1 a relevant Employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

11.4.2 the Employee or employees advise the Employer of the identity of the representative;

11.5 As soon as practicable after making its decision, the Employer must:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the Employees; and

(iii) measures the Employer is taking to avert or mitigate the adverse effect of the change on the Employees; and

11.5.2 for the purposes of the discussion - provide, in writing, to the relevant Employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the Employees; and

(iii) any other matters likely to affect the Employees.

11.6 However, the Employer is not required to disclose confidential or commercially sensitive information to the relevant Employees.

11.7 The Employer must give prompt and genuine consideration to matters raised about the major change by the relevant Employees.

11.8 If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the Employer, the requirements set out in paragraph 11.2 (11.2.1) and subclauses 11.3 and 11.5 are taken not to apply.

11.9 In this term, a major change is likely to have a significant effect on Employees if it results in:

11.9.1 the termination of the employment of Employees; or

11.9.2 major change to the composition, operation or size of the Employer's workforce or to the skills required of Employees; or

11.9.3 the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

11.9.6 the need to relocate Employees to another workplace; or

Change to regular roster or ordinary hours of work

11.10 For a change referred to in paragraph 11.1.2:

11.10.1 the Employer must notify the relevant Employees of the proposed change; and

11.11 The relevant Employees may appoint a representative for the purposes of the procedures in this term.

11.12.1 a relevant Employee appoints, or relevant Employees appoint, a representative for the purposes of consultation; and

11.12.2 the Employee or Employees advise the employer of the identity of the representative;

11.13 As soon as practicable after proposing to introduce the change, the Employer must:

11.13.1 discuss with the relevant Employees the introduction of the change; and

11.13.2 for the purposes of the discussion - provide to the relevant Employees:

(i) all relevant information about the change, including the nature of the change; and

(ii) information about what the employer reasonably believes will be the effects of the change on the Employees; and

(iii) information about any other matters that the Employer reasonably believes are likely to affect the Employees; and

(iv) invite the relevant Employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

11.14 However, the Employer is not required to disclose confidential or commercially sensitive information to the relevant Employees.

11.15 The Employer must give prompt and genuine consideration to matters raised about the change by the relevant Employees.

relevant Employees means the Employees who may be affected by a change referred to in subclause (1).

11.17.1 The parties agree that effective consultation and communication under this Agreement, based on the following principles, is essential in ensuring the Agreement contributes to the success of the Company:

(i) consultation and communication must provide opportunities for participation of all work groups or ranks in respect of common matters under this Agreement;

(ii) fair and equitable treatment of Employees ensured -for individuals, members of their particular work group or rank, and all tugboat crew members in a port;

(iii) Employees' respective representational rights and obligations under clause14must be respected;

(iv) dispute resolution mechanisms under this Agreement, includingclause10must be adhered to.

11.17.2 Information sharing will be achieved through both formal and informal means, such as presentations, newsletters and other appropriate avenues.

11.17.3 It is agreed between the parties that consultation will occur between management and the Employees principally at the port level. Formal structures will be established to enable consultation to take place on a regular basis. This will occur in the following forums:

(i) National Advisory Board;

(ii) Port Advisory Group

(iii) Workplace Council;

(iv) Svitzer Workforce Planning and Development Committee established for each classification or work group."

• [12] Clause 15 provides the 'Categories of Employment and Engagement':

15.1.1 An Employee under this Agreement may be engaged in one of the following employment categories:

•Employee engaged for a specified period of time / task, or

15.1.2 At the time of engagement an Employee will be advised in writing of:

(i) the category of employment in which the person is employed and

(ii) as appropriate, the duration or expected duration of the engagement and the specified period of time or task;

(iii) any requirement and likely duration of induction in relation to clause 23.

15.2.1 A permanent full time Employee is an Employee who is engaged to work on a full time basis in accordance with this Agreement and the Port Operating Procedures in the port in which the Employee is engaged.

15.3.1 Subject to the terms of this Agreement, apart time Employee receives, on a pro-rata basis, equivalent salary and conditions as a full-time Employee.

15.3.2 A permanent part time Employee is an Employee who is engaged for a prescribed proportion (%) of full time employment (less than 100%), and who is required to work at least the number of corresponding days per Financial Year. (For example, an Employee who is engaged in a 50% permanent part-time role will be required to work at least 91 days per Financial Year.)

15.3.3 Review of permanent part time Employee's percentage (%)

(i) The proportionality of the engagement of each permanent part-time Employee will be reviewed each year on the employee's anniversary date of their engagement.

(ii) The review will include consideration of the proportion of days worked by the employee in the previous year, and the reasons for any major divergence between the Employee's percentage and the proportion of work actually performed.

(iii) If there is major divergence between the employee's percentage and the proportion of work actually performed by the employee, the employee's percentage will be either increased or decreased for the next 12 months to reflect the previous year's work activity, unless there are exceptional circumstances that explain the divergence; an adjustment to the percentage will not fall below the prescribed percentage (%) of full time employment under which the Employee was first engaged.

(iv) A permanent part time employee may seek the result of the review within 30 days from the date of their anniversary and elect to increase their percentage (%) based on this review. The Company will consider the criteria in this clause and act reasonably in considering the request.

(a) 'exceptional circumstances' includes but is not limited to unplanned leave; long service leave, or long planned leave, which is relieved by the relevant permanent part-time Employee, one off increase in volume in the relevant port associated with non-recurring work.

(b) When considering whether to increase or decrease the Employee's percentage, the Company will also take into account future forecast volume in the Port including but not limited to, for example, due to forecasted volume due to a pandemic or as a result of another towage provider entering the relevant port or loss of business or contract or potential increase in the volume due to customer win.

(v) An Employee must not be engaged and re-engaged to avoid any obligation under this clause15.3.3.

Job sharing arrangements between permanent full-time employees may be implemented where there has been mutual agreement between the employees concerned and the Company, and consultation has occurred with the Union.

15.4 Employment for a specified period of time or specified task

15.4.1 An Employee engaged for a specified period of time or a specified task is an Employee who works on either a permanent full time or permanent part time basis, but is engaged for a specified period of time or specified task.

15.4.2 This clause applies to all Employees covered by this Agreement. Notwithstanding the provisions of any POPs, Svitzer may engage fixed term employees for a specified task or period in the following circumstances

(a) To provide cover for short or long term sick leave;

(b) To provide cover for short or long term long service leave;

(c) to provide cover for short or long term workers compensation;

(f) to provide cover for establishment of new towage work (up to a maximum period of employment of 18 months);

(g) to provide cover for temporary work (up to a maximum period of employment 18 months);

(h) to provide cover for maternity and paternity leave; or

This provision shall only apply to fixed term or specific task contracts entered into after the commencement of this Agreement.

The parties have agreed, by an exchange of letters process, to a review of the current fixed term contracts.

15.5.1 A casual Employee is an Employee who is not regularly rostered to work, but is engaged daily for periods of one day or more.

Casual Employees employed by Svitzer may have their casual employment converted to permanent employment, which may be either full-time or part-time employment, in accordance with Part 2-2, Division 4A - 'Offers and Requests for Casual Conversion' of the Act as varied from time to time.

(i) Subject to clause15.5.3(ii), daily start and finish times and the timing and duration of breaks for casual Employees will align with those times that apply to permanent Employees in the port.

(ii) Where Svitzer requires the casual Employee(s) to work at different times due to unusual operational requirements, the start time will commence at the start time notified.

(iii) Where the start time notified is brought ahead and the casual Employee is available for duty then the casual engagement will commence from the new start time.

15.6.1 A person may be engaged as a Trainee. Remuneration and conditions of Trainees are set out in clause24.5.

15.6.2 When Trainees satisfactorily complete their Traineeship, they will become eligible to apply to Svitzer for available employment as an Employee under one of the employment categories specified in clauses15.2 to 15.5 above. However, there is no implied right for Trainees to be so engaged."

• [13] Clause 1 of the Sydney POPs provides:

15 x full time crew and a suitable pool of casual employees will be maintained as required. A Full-time position through a job-sharing arrangement can be split into two 50% part time positions.

As from the date of hiring to meet the operational requirements of the POPs; an additional 2 x 100% LIR crew (for a fixed term period of 6 months). Svitzer has the discretion as to whether it will extend the fixed term contracts beyond the 6-month period and the discretion to appoint any fixed term employees from time to time similar to casual employment.

(a) One month prior to the end of the term of the Fixed Term Contracts, Svitzer will conduct a review of its operational requirements to assess whether, based on those requirements, it needs to extend those contracts (including whether they would be extended on similar percentage or lower percentage) and the period of extension; or

(b) bring the Fixed Term Contracts to an end.

If there are any changes required to these POPs or the roster as a result of the changes to the Fixed Term Contracts, the amendments will be limited to Clause 1: Current Crewing Complement and Clause, Clause 4.1: Advised Steam Times, Clause 4.7 - LIR 100% and Clause 5 - Relief Arrangements), Svitzer will consult with the employees and the Unions in accordance with the terms of the Enterprise Agreement.

• 2 Early Primary Crews (Botany)
• 2 Late Primary Crews (Botany)
• 1 Primary Crew (Sydney)

• Leave in running: 2 x 100% LIR (Fixed Term Contract based on the terms outlined above).

• [14] The Applicant submitted that the issues arising in the dispute are as follows:

(a) Is Rob Campbell an employee engaged for a specified period of time or a specified task within the meaning of clause 15.4.1 of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2023?

(b) Does Svitzer's decision to end the employment of the 16th LIR crew, and offer them casual employment, contravene section 333H(1) of the Fair Work Act 2009 (Cth)?

(c) Did Svitzer adequately consult with the MUA and Mr Campbell in relation to its decision to end the employment of the 16th LIR crew?

(d) Having regard to the answers to questions (a)-(c) above, what relief is appropriate?

• [15] The Applicant submitted that if its contentions in relation to the first issue of employment status are accepted, the remaining matters fall away and it is unnecessary to consider the other matters raised. However, the MUA addressed all matters for completeness.

• [16] The Applicant submitted that Mr Campbell was hired in September 2021. At that time, the predecessor to the 2023 Agreement, the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (2016 Agreement) covered and applied to his employment.

• [17] Clause 15.4.1 of the 2016 Agreement provides that:

"15.4 Employment for a specified period of time of specified task

15.4.1 An employee engaged for a specified period of time or a specified task is an employee who works on either a permanent full time or permanent part time basis, but is engaged for a specified period of time or specified task."

• [18] The Applicant submitted that Mr Campbell's original employment offer provided as follows:

"We are pleased to offer you maximum term full-time employment with Svitzer Australia Pty Ltd (Svitzer) in the position or classification of Deckhand commencing on 27 September 2021. You will be employed in Svitzer's towage operations in Sydney Ports.

Your maximum term employment will continue until 28 March 2022; should you be required to continue working in your employment beyond this date you will be advised in writing...

10.1 Your maximum term full time employment will come to an end on 28 March 2022, unless:

a) the period of your employment is extended (which will be done so in writing); or

b) your employment is terminated in accordance with this clause.

Svitzer or you may terminate your employment prior to 28 March 2022 by giving notice of 1 week."

• [19] The Applicant submitted that the offer of employment therefore contemplated several scenarios. One was that Mr Campbell's employment would end on 28 March 2022. A second was that he would be "required to continue working in your employment beyond this date" in which case he "will be advised in writing". The third scenario was that the employment would end before 28 March 2022, by either Svitzer or Mr Campbell giving one weeks' notice.

• [20] The Applicant submitted that in relation to the second option the offer did not contemplate that Mr Campbell would re-apply for his employment, or be offered further employment, or that there would be some negotiation and entry into a new agreement; rather if he was "required" to continue working he would be "advised" of that fact, in which case his employment would not end and would continue indefinitely.

• [21] The Applicant submitted that the effect of Mr Campbell's offer of employment was that his employment could end before, on or after 28 March 2022. The Applicant submitted that properly understood, therefore, the offer which Mr Campbell accepted was not fixed term employment or even maximum term employment. It was employment which could end at any time, albeit with a "default" end date of 28 March 2022.

• [22] The Applicant submitted that as a result, Mr Campbell was not employed "for a specified period". The Applicant submitted that to specify is to "state or identify clearly and definitely". It submitted, however, that there was nothing definite about the period of Mr Campbell's employment; rather the period was changeable at Svitzer's (and to a lesser extent, Mr Campbell's) election. The Applicant submitted that it follows that Mr Campbell was not a fixed term employee within the meaning of the Agreement.

• [23] The Applicant submitted that the phrase "engaged for a specified period of time" has for many years appeared in federal industrial unfair dismissal legislation. The Applicant submitted that the construction adopted by courts and tribunals in relation to that phrase has some relevance to the construction of Clause 15.4.1 of the 2016 Agreement given the commonality of language. The Applicant submitted it is, however, necessary to exercise some caution. The relevant phrase is to be interpreted in its particular context. The Applicant submitted that the context of the words of the 2016 Agreement is different to the various statutory formulations as they have appeared over the years. That statutory context includes influences which range from the Termination of Employment Convention on the pre-1996 legislation to the particular statutory formulation adopted in the current FW Act provision. The Applicant submitted that none of those matters are apt in the construction of the 2016 Agreement.

• [24] The Applicant submitted that subject to that caveat, it is relevant to note that the concept of engagement "for a specified period of time", as a matter of language, has never been taken to encompass maximum term contracts. The Applicant submitted that this has been the case since the original consideration of the phrase by Von Doussa J in Andersen v Umbakumba Community Council (1994) 126 ALR 121; 56 IR 102 (at IR 106) (Umbakumba):

"In the expression, "specified" is the past participle of the verb "to specify". The ordinary meaning in the English language of "to specify" is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3rd ed. In the context of Art 2, par 2(a) of the Termination of Employment Convention "specified" identifies a period of time or a task the scope and parameters of which are stated definitely. A "specified period of time" is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the regulation.

A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time."

• [25] The Applicant submitted that it would be noted that the contract in view here is not properly described as an outer limit contract because it contemplated that it could be terminated before the nominal end date or continue afterward. That is to say, the analysis adopted in Umbakumba and the many authorities which followed it applies with even greater force to Mr Campbell's contract.

• [26] The Applicant submitted that there have in the years following Umbakumba periods been various analyses of the question of whether and when termination in the context of an outer limit contract might constitute termination of employment at the initiative of the employer: see Khayam v Navitas English Pty Ltd [2017] FWCFB 5162; 273 IR 44 (Navitas). The Applicant submitted that is however a separate question, and is not directly related to the ordinary meaning of the phrase "employed for a specified period".

• [27] The Applicant submitted that Svitzer, in its written submissions, suggests that the question of construction is to be answered by reference to the recent decision of Raper J in Alouani-Roby v National Rugby League Limited [2022] FWCFB 171; 318 IR 389 (Alouani-Roby). The Applicant submitted that it is correct to say that Raper J in that decision, in obiter comments, held that an outer limit contract was a contract for a specified period within the meaning of section 386 of the FW Act. However, the Applicant submitted that conclusion did not reflect her Honour's different view of the ordinary meaning of the relevant words, but rather a view of the broader statutory context:

"[97] I accept that the contrary argument is that the phrase "contract of employment for a specified period of time" is replicated in the FW Act and that the phrase had previously been construed as not applying to contracts which were essentially outer limit contracts which allowed for early termination: see Cooper v Darwin Rugby League Inc (1994) 57 IR 238 at 241; Andersen v Umbakumba Community Council (1994) 126 ALR 121 at 125-6. However, the phrase must be construed in the context of the current, differently crafted, legislative provision as a whole. That context is instructive and supports the view that the legislature intended that the provision have a different effect than how its predecessor provisions had been interpreted. A construction of the provision on its terms supports the NRL's interpretation without need for recourse to the extrinsic material. I accept the NRL's argument that s 386(2)(a) applies to outer limit contracts which allow for early termination but only applies where the employee's employment has been terminated at the end of the specified period of time."

• [28] The Applicant submitted that it should be borne in mind that the provision being construed was as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season..."

• [29] The Applicant submitted, that is to say, the Court in Alouani-Roby was concerned with different words in a different immediate linguistic context with a particular and specific statutory history. As the Court noted "the phrase must be construed in the context of the current, differently crafted, legislative provision as a whole. That context is instructive and supports the view that the legislature intended that the provision have a different effect than how its predecessor provisions had been interpreted". The Applicant submitted that there is no equivalent context or history in this case.

• [30] The Applicant submitted that two other points may be made for completeness. First, the decision in Alouani-Roby was delivered some six years after the 2016 Agreement was made. To the extent it is necessary to call upon any intention of the parties, that objectively discerned intention must have been to adopt a phrase in light of the interpretation which had at that point been accepted for some 22 years. Second, Raper J's observations were obiter, the matter having been determined on a different basis without the need to consider this issue.

• [31] The Applicant submitted that the 2016 Agreement permitted engagement on four bases: permanent full-time, permanent part-time, casual and fixed term. The Applicant submitted that it has not been suggested by any party that Mr Campbell was a casual or permanent part-time employee. For the reasons set out above, he was not a fixed term employee. The Applicant submitted, therefore, it follows that Mr Campbell was a permanent full-time employee.

• [32] The Applicant submitted that if the foregoing analysis is correct, any further offers of employment to Mr Campbell are irrelevant, insofar as his employment status is concerned, because he had already been engaged as a full-time permanent employee. However, and in any case, the terms of the second offer were relevantly the same and the same result would obtain.

• [33] The Applicant submitted that if its contentions regarding Mr Campbell's employment status are accepted, the Commission should resolve the dispute by determining that:

(a) Mr Campbell is, and has been from the time of his initial engagement, a permanent fulltime employee of Svitzer; and

(b) subject to clarification of any question of Mr Campbell's fitness for duty, Mr Campbell should immediately be returned to duty as part of the full-time permanent roster.

• [34] The Applicant submitted that Clause 11 of the Agreement is headed "Consultation, Communication and Information Sharing" (Applicant's emphasis). The Applicant submitted that, as the heading suggests, the clause requires that Svitzer discuss with employees and their unions major changes and in doing so, providing in writing:

(a) all relevant information about the change including the nature of the change;

(b) information about the expected effects of the change on employees; and

(c) any other matters likely to affect the employees.

• [35] The Applicant submitted that Svitzer purported to consult with Mr Campbell and his union between 1 and 8 December 2023. That process was, as Mr Garrett describes it, a "box ticking exercise" which did not constitute consultation in the relevant sense.

• [36] The Applicant submitted that before going to the chronology of the alleged consultation, one aspect of Svitzer's evidence should be noted. The Applicant submitted that it would be recalled that the LIR crews were engaged in September 2021. Mr Sheehan's evidence repeatedly emphasises the apparently vast uncertainty that attended Svitzer's business at the time. The Applicant submitted that the uncertainty was apparently so great that it took Mr Sheehan a number of years to determine what Svitzer's needs were. Specifically, the Applicant submitted that the Commission would note Mr Sheehan's evidence that:

(a) it took a few months for both Svitzer and the LIR Crew to become familiar with the requirements of the Navy Contract and the work which needed to be done to service this contract [27];

(b) by December 2022, some 15 months after the crews were engaged, it was clear that they would be needed for some further period but, on Svitzer's view, it was unclear what the best model was to service the port, and the need for the LIR crew could not be projected into the future [33];

(c) finally, during 2023, it became apparent to Sheehan that "there were issues" using LIR crews, and he "started to form a preliminary suspicion" thought a different model might be needed involving part-time crew [45], [49].

• [37] The Applicant submitted that is to say, it appears that the question of whether the LIR crews should continue to be engaged was a complicated one which required years of observation and data and extensive review and modelling. The Applicant submitted that this is a matter to be borne in mind in consider the amount of time and the amount of information provided to Mr Campbell and his union at the point he was invited to have input into the matter.

• [38] The Applicant submitted that Svitzer's initial communication to the MUA indicated that "On a preliminary review, based on the existing utilisation of the Sydney crew, it is Svitzer's opinion that such operational needs can be fulfilled without maintaining an LIR Crew". The Applicant submitted that it also included generalised statements to the effect that "part time crew offer greater flexibility" and referred vaguely to the impacts of departure of a competitor from the port and potential loss of a contract. It also provided a table setting out, in summary form, information about "estimated activation of hours".

• [39] The Applicant submitted that Svitzer's letter was sent on 27 November 2023 and suggested the consultation should occur at a meeting on 1 December 2023.

• [40] The Applicant submitted that it responded on 29 November 2023, requesting a list of crews and the total number of days worked by casuals, LIRs, PPTs and crews on recall for the previous twelve months. The Applicant submitted that this was 'elementary information' which, on any reasonable view, was "relevant information about the change" within the meaning of Clause 11 of the Agreement. The letter also noted that:

(a) Engage Towage - a competitor which Svitzer has repeatedly described as a significant player - would be exiting the port within days and that there would inevitably be an increase in work as a result; and

(b) the LIR crews had performed their days ahead of schedule, and they had been fully utilised and in a flexible fashion as originally intended.

• [41] The Applicant submitted that on the morning of 1 December (the day of the consultation meeting) Svitzer provided a list of crews and a list of days worked by individual members of the LIR crews. The Applicant submitted that the email did not provide the information sought by the MUA and did not provide any meaningful insight into the crewing position and crewing needs at the Port. The Applicant submitted that, if anything, the de-contextualised information about six specific workers was apt to mislead rather than inform: for example, the information indicated that one crew member had worked a stated number of days as part of a LIR crew but did not acknowledge the fact that the crew member had been converted to a permanent position some time previously "(thus presumably reducing the shift number)".

• [42] The Applicant submitted that despite further requests, Svitzer adamantly refused to provide any meaningful or useful information. Rather Svitzer asserted that:

"We do not consider the other data requested to be relevant to the LIR crews or the proposed change. Even if the data were to show the number of days worked by casuals, LIRs, PPTs and recalls to be high, it does not change the fact we are currently looking at an alternative roster modelling that will mean we do not require the LIR crew."

• [43] The Applicant submitted that Svitzer maintained that position throughout, and refused to provide any further information until the present proceedings were commenced. The Applicant submitted that Svitzer has not, for example, disclosed the "alternative roster" said to be preferrable to the LIR crew arrangement. No justification has been offered for this refusal.

• [44] The Applicant submitted that in short, Svitzer notified Mr Campbell and his union that it considered that its operational needs can be fulfilled without maintaining an LIR Crew, and that it was "looking at" an "alternative roster". However, the Applicant submitted that Svitzer refused to provide the most basic information needed to allow Mr Campbell and the MUA to consider the merits of the proposal and have input into the ultimate decision. The Applicant submitted that, as Mr Sheehan eventually accepted, information about the utilisation of casuals, recalls and permanent part-timers is information that Mr Campbell would need if he were to engage meaningfully with the question being considered.

• [45] The Applicant submitted that without that information, Mr Campbell and the MUA had no real opportunity to contribute to express its views or contribute to the decision-making process.

• [46] The Applicant submitted that there was, however, a further and even more clear-cut failure. Svitzer's correspondence with the union asserts that there had been an "extensive review"; a "review of operational needs with respect to the LIR Crew"; an "operational review" which included "extensive roster modelling"; all leading to "a new roster arrangement being considered" and a "proposed roster" which would "dissipate the need for LIR crew on an ongoing basis". The Applicant submitted that it became clear during the cross-examination of Mr Sheehan (and he largely accepted) that:

(a) Svitzer has with the assistance of a third party consultant conducted an "extensive review", conducted "extensive roster modelling";

(b) Svitzer has in mind a "roster arrangement" that would eliminate the need for LIR crews;

(c) those matters were critical to the fate of the LIR crews;

(d) no information about any of those matters was ever provided to the LIR crews or their representatives.

• [47] The Applicant submitted that it is self-evident that this, information which was decisive as to the fate of the LIR crews, is part of "all relevant information about the change including the nature of the change" and was required to be shared, in some form or another, with Mr Campbell and his union. The Applicant submitted that the failure to provide it represents a total failure to consult in the required sense.

• [48] The Applicant submitted that the information that was provided, and in particular the table which featured in the 27 November 2023 letter, was of no assistance to Mr Campbell. It was a cryptic document which gave no indication of how the figures set out in the table related to the question of whether the LIR crews should continue to be engaged.

• [49] The Applicant submitted that to the extent it can now be understood from the evidence given by Mr Sheehan following questioning from the Commission, it appears that Svitzer has determined based on a consultant report that it should attempt to improve in-shift utilisation by reducing the total number of fulltime crews and increasing the usage of permanent part-time employees. The Applicant submitted that if that is in fact the case, Svitzer should have consulted with the entire workforce, not just the LIR crews.

• [50] The Applicant submitted that Svitzer's failure to consult denied Mr Campbell the opportunity to persuade Svitzer of the merits of an alternative course. That failure is appropriately remedied by returning Mr Campbell to the position he would have been in had Svitzer complied with its obligations. The Applicant submitted that the dispute should therefore be determined as follows:

(a) Svitzer has failed to consult with Mr Campbell and his union in the manner required by the 2023 EA;

(b) the appropriate remedy for that breach is that the Commission determine that Mr Campbell's employment by Svitzer continues on the terms and conditions which applied before 31 December 2023;

(c) Svitzer is to provide to Mr Campbell and the MUA with all information relevant to the proposed change in crewing and roster arrangements at the port, including information regarding the following matters:

1. the operational review referred to in Svitzer's correspondence;

1. the roster model referred to in Svitzer's correspondence;

1. the new roster arrangement being considered, referred to in Svitzer's correspondence; and

1. the proposed roster referred to in Svitzer's correspondence.

(d) Svitzer is to meet and confer with Mr Campbell and the MUA as soon as possible after the provision of that information; and

(e) the dispute is listed for further report back on a date to be fixed.

• [51] The Applicant submitted that one final point should be made. That is, Svitzer's evidence repeatedly refers to an alleged inflexibility in the LIR crews based on a need to give six hours' notice of work. The Applicant submitted that this appears to be an inflexibility relative to permanent part-time employees. The Applicant submitted that the basis for the complaint in the 2023 Agreement or the POPs is unclear, and the allegation is made only at a high level without any reference to any particular example of any actual difficulty. The Applicant submitted that putting that to one side, however, this is a category of issue that could readily be addressed through discussion; it specifically highlights the value of consultation. The Applicant submitted that if there had been consultation or information sharing in the manner required in the 2023 Agreement, the concern could have been addressed in a much more productive manner.

• [52] The Applicant submitted that Division 5 of Part 2-9 of the FW Act deals with 'Fixed Term Contracts'. Section 333E(1) of Division 5 prohibits entry into a contract which includes a term that provides that the contract will terminate at the end of an identifiable period if any subsection (2), (3) of (4) apply. The Applicant submitted that subsection 333E(4) applies where, in summary, an employee has been employed on a series of fixed or maximum term contracts for longer than two years.

• [53] The Applicant submitted that where a further contract of that kind is made, the provision of the contract providing for its termination is invalid, but the contract would otherwise continue to operate in accordance with s.333G(1). That is to say, the contract will effectively be deemed by statute to be a contract of permanent employment.

• [54] The Applicant submitted that section 333H(1) provides that a person must not, in order to avoid any right or prohibition under sections s333E or s333H:

(a) terminate an employee's employment for a period;

(b) not re-engage the employee and instead engage another person to perform substantially similar work for the person as the employee had performed for the person; or

(c) otherwise alter an employment relationship.

• [55] The Applicant submitted that Mr Campbell was first hired in September 2021. His contract was then extended (or on Svitzer's account, renewed) effective from 21 March 2022 and again effective 31 December 2022. The Applicant submitted that following the purported expiry of his latest fixed term of employment, Mr Campbell has been offered casual employment. That offer has been made in the context of there being considerable ongoing work available at the port, and in the context where Svitzer is in the process of constructing a fresh roster.

• [56] The Applicant submitted that, critically, Svitzer has offered another member of the LIR a further fixed term contract and relied here on the witness statement of Mr Thomas Gray.

• [57] The Applicant submitted that the Commission should infer from the above that:

(a) Svitzer's preferred mode of engagement of Mr Campbell is maximum term contracts;

(b) Svitzer has a continuing need for Mr Campbell's services;

(c) Svitzer wishes to avoid the engagement of Mr Campbell on a permanent basis;

(d) Svitzer has altered or attempted to alter the nature of the employment relationship to casual employment for that reason; and

(e) Svitzer would have offered Mr Campbell a further maximum term contract, but for its desire to avoid the effect of s333G of the FW Act.

• [58] The Applicant submitted that if those inferences are drawn, it would follow that Svitzer has unlawfully altered the employment relationship between it and Mr Campbell from a permanent to casual relationship. The Applicant submitted this is a matter which the Commission is entitled to take into account, and to give significant weight, in determining the dispute before it.

• [59] The Applicant submitted that if the Commission is satisfied that Svitzer altered the relationship in order to avoid the deeming effect of s.333G(1), the dispute should be resolved on the basis set out at paragraph [33] above. That is to say, the Commission should take into account the apparent breach of the anti-avoidance provisions in determining the dispute.

• [60] The Applicant submitted that the Commission is also entitled, should it so choose, to resolve the dispute by expressing an opinion, giving a recommendation in accordance with s.333L(4).

• [61] In conclusion, the Applicant submitted that the dispute should be resolved:

(a) on the basis of a determination that Mr Campbell is and always has been a permanent full-time employee as submitted at [33] above;

(b) in the alternative, on the basis set out at [50] above; or

(c) in the further alternative, on the basis set out at [59] above.

• [62] AIMPE submitted that on 28 February 2023, Svitzer advised AIMPE, The Australian Maritime Officers Union (AMOU), and the MUA of its intention to not renew the fixed term contracts for the 16th and 17th LIR Crews. AIMPE annexed a copy of this notice.[1]

• [63] AIMPE submitted it is not in dispute that the 16th and 17th LIR crews were contemplated by the Sydney Port Operating Procedures (POPs) to form part of the rostered crewing complement in the Port. AIMPE submitted that the 16th and 17th LIR Crews were engaged on a 100% full time basis, that is, their duty obligation was for 182 days.

• [64] AIMPE submitted that it wrote to Svitzer on 1 March 2023, seeking genuine consultation from Svitzer on the proposed changed reduction in rostered crews in the Port.[2]

• [65] AIMPE submitted that it sought further consultation from Svitzer on the basis that there had been no demonstrated reduction in towage work or utilisation of the 16th and 17th LIR crews that would otherwise justify a decision to reduce the manning in the Port.

• [66] AIMPE submitted that no further consultation took place between March 2023 and November 2023.

• [67] AIMPE submitted that on 1 December 2023, Svitzer convened a consultation meeting between local Union Delegates, and officials of AIMPE, the AMOU, and the MUA, however, no progress was made at this meeting to resolve the competing views of the Unions and Svitzer.

• [68] AIMPE did not concede that a reduction in crewing was required or justified as implemented by Svitzer. AIMPE maintained that the positions in question should be permanent with a reduced leave in running component of the roster for that crew.

• [69] AIMPE relied on the witness statement of Mr Thomas Gray as providing that the 16th crew Engineer had, by the completion of his contract on 31 December 2023, completed 182 duty days in accordance with his contracted duty requirements, as well as an additional 9 days of recall work above his required duty days under contract.

• [70] AIMPE submitted that the evidence of Mr Gray contradicts any claim made by the

Respondent that goes to reduced utilisation of the 16th crew as a justification for reduction of the rostered crews in the Port.

• [71] AIMPE submitted that a connection exists between crewing numbers in the Port (arrived at through negotiation and Agreement in the POPs), actual utilisation of crews in the Port, and how the Respondent formed the view that a reduction in crews in the Port was justified. AIMPE submitted that this is particularly relevant in circumstances where the 16th and 17th LIR crews were added to the POPs by Svitzer and the Unions due to Svitzer being the successful tenderer to provide contracted towage operations for the Royal Australian Navy (RAN) in Sydney. AIMPE submitted that the contract for RAN towage services continues to be held by Svitzer, and they continue to provide towage services for the RAN.

• [72] AIMPE submitted that the Respondent has not provided any evidence to justify its decision to reduce crews in the Port, nor have they explained how they arrived at such a decision to reduce crews. AIMPE submitted that as a matter of general principle, it may well be that an appropriate reduction in crews is justified, supporting the Respondent's position, where specific data exists that shows crews are under-utilised. AIMPE submitted, however, the evidence of Mr Gray refutes such a conclusion, as there is clearly work to be done in the Port by the LIR crews in light of Mr Gray exceeding his 182 contracted duty days.

• [73] AIMPE submitted that, more generally, if it were the case that a reduction in business necessitated a reduction in agreed crewing in the Port, the Agreement provides a consultative mechanism to deal with matters of reduction, cessation or growth in business. Clause 13 of the Agreement deals with Reduction, Cessation or Growth in business and states as follows:

13.1 The parties have entered into this Agreement in the expectation that the terms of this Agreement will apply for the life of the Agreement.

13.2 However, if circumstances affecting the business, either across the board or in a particular port will lead to a reduction, cessation or growth of port business, Svitzer and the Union will confer in an attempt to resolve any issues arising from the change in circumstances. The parties will attempt to resolve such issues in accordance with the dispute resolution procedure, clause 10 of this Agreement, including by reference to FWC to have FWC determine the reasonableness of any proposals to address the changed circumstances. Where found to be reasonable by FWC, the Company proposals will be implemented.

13.3 In the event of substantial changes in roster arrangements (which may include roster arrangements providing for the introduction of "captivity" for a port) or the level of towage operations or other relevant circumstances, the parties agree to review, and where necessary, adjust the salaries referred to in clause 24 of this Agreement.

13.4 If, as a result of the review referred to above, it is necessary to alter salary levels, the parties agree to take such steps as are required by the Act and clause 7 to vary this Agreement accordingly."

• [74] AIMPE submitted that in the present circumstances, the Clause 13 provisions relating to "reduction" in business are relevant. AIMPE submitted that if it were the case that a genuine reduction in business was used to justify a reduction in agreed crewing numbers in the Sydney POPs, then Clause 13 consultation requirements would be triggered. However, AIMPE submitted that no such consultation under Clause 13 has taken place regarding the Svitzer proposals for the 16th and 17th LIR crews. AIMPE submitted that how the Respondent arrived at its conclusion to reduce the agreed crewing in the Port remains unknown to AIMPE.

• [75] Further, AIMPE submitted that in accordance with Clause 5.3 of the Agreement, the POPs cannot operate to conflict with a term of the Agreement. AIMPE submitted that this would include limiting or placing a "fetter" on the consultation terms of the Agreement, including where there is a reduction, cessation or growth in business. The consultation terms relevant for these proceedings under the Agreement being Clause 11 - Consultation, Communication and Information Sharing - and Clause 13 - Reduction, Cessation and Growth.

• [76] AIMPE submitted that it is not enough under the terms of the Agreement for the Respondent to simply reduce agreed crewing numbers in the Port to avoid the application of Clause 13 of the Agreement in circumstances where evidence exists which does not support the pre-determined outcome of the Respondent, i.e., a reduction in agreed crewing of the Port.

• [77] AIMPE submitted that if any limitation was placed on the ability for a party to raise or pursue issues under either of those consultation provisions, that term would make the POPs inconsistent with a term of the Agreement and would represent a prohibition under Clause 5.3. AIMPE submitted that such a limitation has been imposed by the Respondent in this case.

• [78] AIMPE submitted that in the present case, the facts and circumstances relied upon to make the predetermined outcome in the POPs by the Respondent, regarding manning have changed or do not exist, or are unrecognisable in the current context of the POPs.

• [79] AIMPE submitted that should the circumstance anticipated by the POPs have continued, the trigger to see the predetermined outcome through to implementation would have required a simple compliance with the consultation terms of the Agreement, but without even that act of simple compliance with the Agreement, the offending term of the POPs cannot be implemented. That is, the term in the POPs is being used as a justification to avoid scrutiny under the consultation terms of the Agreement.

• [80] AIMPE submitted that, put simply, a provision of the POPs that insists that certain action take place with a fetter or restriction to an ability of a party to access a consultation or dispute term of the Agreement in order to examine the relevance of the action (or put an alternative proposal) renders that term of the POPs inconsistent with the Agreement and the implementation of the predetermined action in breach of the Agreement and consequently, the FW Act.

• [81] Regarding the questions for arbitration as proposed by the MUA, Svitzer submitted that whilst the first two questions may arise under the Agreement, question 3 plainly does not arise under the Agreement or pertain to the Agreement's terms. Accordingly, Svitzer objected to the Commission determining question 3 on the basis that there is no jurisdiction to do so.

• [82] Svitzer addressed each of the questions raised by the MUA, as below.

• [83] Svitzer submitted that the determination of this dispute will require the Commission to have regard to the Sydney POPs. Svitzer noted that the Sydney POPs are incorporated into the Agreement by Clause 5.3 of the Agreement and accordingly have effect as if they were terms of the Agreement (subject to the Agreement terms prevailing in the event of an inconsistency). Svitzer filed a copy of the Sydney POPs.

MUA question 1 - Is Mr Campbell engaged for a specified period of time or a specific task?

• [84] Svitzer submitted that the terms of engagement pertaining to Mr Campbell's employment were clear and unambiguous. Svitzer submitted that it is uncontroversial that Mr Campbell was engaged under provisions of the Sydney POPs to fill a "fixed term" employment position. Specifically, Clause 1 of the Sydney POPs permitted Svitzer to hire 2 x 100% LIR Crew on a fixed term period for 6 months. Shortly after the Sydney POPs were varied to introduce these positions, Mr Campbell was engaged as an LIR employee on a fixed term basis. Svitzer submitted that Mr Campbell was engaged, together with 5 other crew, on a deliberate basis to fill the "fixed term contracts" contemplated by the Sydney POPs. Svitzer submitted that there was no dispute or controversy at the time of Mr Campbell's engagement as to the fact that the 6 employees (including Mr Campbell) were collectively the group that were chosen to fill the fixed term roles mandated by the Sydney POPs.

• [85] Svitzer submitted that Mr Campbell was engaged under an initial contract that plainly applied for a maximum duration with a specified end date. Svitzer submitted that the introduction on page 1 of the contract provided as follows:

"Your maximum term employment will continue until 28 March 2022."

• [86] The Respondent submitted that the termination provision of the contract (Clause 10.1) clearly identified that the employment would come to an end on 28 March 2022, absent some extension by the parties or an earlier termination.

• [87] Svitzer submitted that on 21 March 2022, Mr Campbell was offered a new contract (the 21 March Contract) which provided as follows:

"...we are pleased to offer you employment for a specified term on the basis outlined at Item 1 of Schedule 1...

Your fixed-term employment will automatically come to an end at the date outlined at Item 2 of Schedule 1 [31 December 2022] unless it is otherwise terminated in accordance with this Contract...

You acknowledge that Svitzer is under no obligation to provide you with employment beyond the Contract Period and that no representation has been made to you at any time that this Contract or your employment will be extended beyond the Contract Period."

• [88] Svitzer submitted that a cover letter accompanying the 21 March Contract made it clear that the employment was for a fixed period, ending on 31 December 2022:

"With this context in mind, Svitzer wishes to offer you a new fixed term contract, to operate from 29 March 2022 to 31 December 2022. The contract will automatically expire on 31 December 2022 and we need to be clear that there should be no expectation that work will be offered beyond this date."

• [89] Svitzer submitted that when I issued Interim Orders[3] and then a Final Order[4] extending Mr Campbell's employment as part of dispute proceedings C2022/8414, it was clear that the expiry date of the 21 March Contract was changed by Order of the Commission, but the contract otherwise remained a maximum term contract. Svitzer submitted that each of the interim orders issued by me varied the 21 March Contract to have a finite end date and then the Final Order issued on 20 June 2022 in decision [2023] FWC 578 provided as follows:

"I hereby Order that Mr Campbell's contract be extended until 31 December 2023..."

• [90] Svitzer submitted that during the course of early 2023, it wrote to all crew members expressly reminding them that their contracts were due to expire on 31 December 2023 and that there was no expectation of continuation. Mr Campbell was provided with a copy of the letter for his reference (given that there was an ongoing dispute proceeding - C2022/8414 - in relation to his engagement), so that he was also made aware of the finite nature of his engagement:

"As you know, Svitzer has maintained throughout the course of your engagement that there should be no expectation of employment beyond the end of the fixed term.

Based on current and expected operational needs, we consider it prudent to confirm that it is highly likely Svitzer will not be extending any fixed term LIR crews beyond their current expiry.

This means that your employment will cease effective on and from 31 December 2023 under your existing fixed term contract and will most likely not be renewed."

• [91] Svitzer submitted that at all times following the issuing of the 21 March Contract, Mr Campbell was plainly under the impression that his employment would end on a finite date - namely 31 December 2023 - unless terminated earlier in accordance with the termination clause of the Contract.

The fact that the Contract could be terminated before its expiry is not inconsistent with the contract being for a specified term

• [92] Svitzer submitted that the two contracts Mr Campbell was engaged under are what are commonly referred to as "outer-limit contracts". That is, a contract with a specified end date, but one that can be terminated earlier by the parties. Svitzer submitted that the MUA's submissions assume that the fact that the 21 March Contract could be terminated in advance of its expiry date means that the contract could not be for a specified period. However, Svitzer submitted that such an approach is inconsistent with the most recent Federal Court authority and the provisions of the Agreement itself.

Federal Court position on specified period of time contracts

• [93] Svitzer cited the Federal Court decision in Alouani-Roby v National Rugby League Ltd [2024] FCA 12 (Alouani-Roby), in which Justice Raper accepted that "outer limit contracts", which permit early termination, can constitute "contracts for a specified period of time" within the meaning of the FW Act.[5]

• [94] Svitzer submitted that, in so finding, Justice Raper identified that this necessarily overrules the reasoning of the Fair Work Commission Full Bench in Navitas, which had held that the ability to terminate a contract early rendered a contract inconsistent with being a contract for a specified period of time. Svitzer submitted that Justice Raper went on to identify that the common law position historically has been that:

"regardless of whether a contract is capable of early termination, contracts that have a fixed and maximum term terminate automatically upon their expiration."[6]

in support of her view that such contracts were contracts for a "specified period of time".

• [95] Svitzer submitted that in a more recent decision of Garriock v Australia Taekwondo Ltd [2024] FWC 350 (Garriock), Commissioner Wilson accepted that Alouani-Roby was binding on the Commission and accordingly treated an outer-limits contract as one which was exempt from the operation of unfair dismissal laws because it was a contract for "a specified period of time" within the meaning of s.386(2)(a) of the FW Act.[7]

• [96] Svitzer submitted that in addition to this recent caselaw, the Agreement itself, at Clause 20, contemplates that engagements for a specified period of time can be terminated before their nominated end date with the provision of written notice. In particular:

(a) Clauses 20.1.1 and 20.1.3 contemplate that Svitzer may terminate the employment of a "permanent employee" with written notice by Svitzer. As clause 15.4.1 of the EA seeks to apply permanent employment conditions to employees engaged for a specified period of time, it follows that clause 20 of the EA applies to contracts for a specified period of time. That is, contracts for a specified period of time contemplated by the EA can be terminated with notice.

(b) Clause 20.4 states that an employee "other than a casual employee" may terminate their engagements with written notice. This plainly appears to apply to employees for a specified period of time (who are uncontroversially not casual employees).

• [97] Svitzer submitted that the applicability of Clause 20 of the Agreement to engagements for a specified period of time is reinforced when one considers the contrast between Clause 20 and Clause 21, which deals with redundancy. Svitzer submitted that whilst Clause 20 of the Agreement appears to apply to all non-casual employees at large (as is particularly made clear by Clause 20.4), Clause 21 expressly identifies that the redundancy entitlements do not apply to employees engaged for a specified period of time or task. Svitzer submitted that this approach to construing the Agreement provisions is reinforced by the Explanatory Materials that accompanied the Agreement at the time of voting and which were distributed to all employees covered by the Agreement,[8] which plainly indicated how Clause 20.1 was intended to operate:

This clause applies to permanent employees (permanent full time and permanent part time employees including those engaged for a specified period of time or for a specified task). It does not apply to casual employees."[9]

• [98] Svitzer submitted that to the extent that there is any ambiguity as to the scope of what was intended to be captured by the reference to contracts for a "specified period of time" in the Agreement, the Commission has previously held in AMWU v Berri [2017] FWCFB 3005 that regard to extrinsic materials such as voting explanation documents will be instructive:

"The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement."[10]

• [99] Svitzer submitted that in this case, the employees were expressly told that contracts for a specified period of time (as contemplated by the Agreement) could be terminated in advance with notice. Svitzer submitted that such an express statement is particularly fatal to the MUA's position on this point. As far as the Agreement was concerned, maximum term contracts fall within the scope of a contract for a specified period of time.

Ability to extend contract by mutual consent of no relevance

• [100] Svitzer submitted that to the extent that the MUA asserts that there is an ability to extend the expiry date of the contract, invalidating its character as a specified period contract, such a position is untenable on the drafting of the most recent contract subject to the present dispute (the 21 March Contract). Svitzer submitted that the 21 March Contract states that the employment of Mr Campbell ends at the end of the Contract Period, unless extended by mutual agreement by both parties in writing. Svitzer submitted that this provision is simply calling out the obvious - namely, that both parties can agree to vary the contract (or enter into a new contract) by agreement. Svitzer submitted that such a feature is common to all contracts of employment. All parties can choose to vary a contract's terms mutually. Svitzer submitted that there is nothing in the 21 March Contract that permits its extension without the agreement of both parties.

• [101] Svitzer submitted that for all of the above reasons:

(a) Contracts for a specified period of time (as that term is used in the EA) can include contracts terminable with prior notice, provided that the contracts automatically expire on a particular end date.

(b) Mr Campbell's contract did automatically expire on a particular end date (which was extended by Commissioner Riordan's order of 20 June 2023).

(c) Accordingly, Mr Campbell was engaged on a contract for a specified period of time.

MUA question 3 - Did Svitzer adequately consult in relation to the termination of Mr Campbell's Employment?

• [102] Svitzer submitted that the witness statement of Mr Sheehan identifies that on 27 November 2023, Svitzer sent letters to its LIR Crew, and the unions, notifying them that Svitzer intended to review its operations and that it was likely that, absent any change in course, the LIR Crew engagements would cease on 31 December 2023.

• [103] Svitzer submitted that letter identified the grounds that had motivated Svitzer's preliminary views, comprised of:

(a) A low utilisation of existing crew in the port - supported by data regarding hours of utilisation. That is, Svitzer felt that crews were not being required to work a substantial number of their existing shift hours.

(b) An identification that part-time employees offered greater flexibility than the LIR Crew. That is, part-time employees would be better able to respond to last minute tug movements than LIR Crew.

• [104] Svitzer submitted that the letters invited the LIR Crew, and the unions, to provide feedback by 1 December 2023.

• [105] Svitzer submitted that the following further process then unfolded:

• [106] Svitzer submitted that, having regard to the above, two matters should be evident:

(a) Firstly, Svitzer did provide relevant information about the changes to the employees and their representatives. In particular, all three types of information requested were provided to the Unions (on 1 December, 6 December and 14 December).

(b) Secondly, given the multiple consultation feedback points made available, including in-person meetings and 2 further conferences before the Fair Work Commission, it is not apparent what any further consultation would have achieved.

The position of the parties was exhausted by 20 December 2023

• [107] Svitzer submitted that the MUA has complained that Svitzer has not supplied information about its "alternative roster" to date. However, Svitzer submitted that it is not yet proposing to implement an alternative roster. Svitzer submitted that it has identified that there is spare utilisation within its crew and that the low levels of utilisation are amenable to streamlining the number of crew and reducing resourcing in Sydney by way of a roster change.

• [108] Svitzer submitted that these matters are relevant to the decision as to whether to continue to engage the LIR Crew. Svitzer submitted that the roster change is not, however, a matter which it is required to presently consult on.

• [109] Svitzer submitted that when it decides to restructure its roster and propose changes to its total crew (which is likely in the near future), at that point in time, it will have extensive consultation in accordance with its obligations under the Agreement.

• [110] Svitzer contended that, having regard to the above, it did consult in accordance with its obligations under the Agreement with respect to the cessation of the LIR Crew positions.

MUA question 2 - Alleged Contravention of s.333H(1) of the FW Act

• [111] Svitzer objected to this issue being determined on the basis that no jurisdiction is conferred under the Agreement to determine this issue.

• [112] Svitzer noted that s.739 of the FW Act entitles the Fair Work Commission to arbitrate a dispute between parties, provided that:

(a) a term of an enterprise agreement "provides for a procedure for dealing with disputes" (see section 739(1)(b));

(b) the term permits the Commission to arbitrate the dispute (see section 739(4)); and

(c) any decision made by the Commission is not inconsistent with the FW Act or any fair work instrument which applies to the parties (see section 739(5)).

• [113] Svitzer submitted that in this case, the Agreement only provides a process for the Commission to deal with disputes "arising under this Agreement and in relation to the NES".

• [114] Svitzer submitted that the dispute pursued by the MUA on this issue is that Svitzer has contravened s.333H of the FW Act. Svitzer submitted that the dispute is about Division 5 of Part 2-9 of the FW Act, not about any term of the Agreement.

• [115] Svitzer submitted that if the MUA alleges that such provisions of the FW Act have been contravened, then the FW Act provides a process for disputes to be raised under Division 5 of Part 2-9. However, Svitzer submitted that the MUA has elected not to file a dispute under Part 2-9 of the FW Act.

• [116] Svitzer submitted that it is an abuse of the Agreement's dispute resolution process to seek to agitate a different cause of action under the guise of a dispute about the terms of the Agreement.

• [117] Svitzer submitted that, should the Commission nevertheless proceed to determine this issue contrary to Svitzer's objection, then Svitzer makes the following further submissions in relation to the operation of section 333H.

• [118] Svitzer submitted that s.333H provides as follows:

"(1) A person must not do any of the following in order to avoid any right or prohibition under this Division:

(a) terminate an employee's employment for a period;

(ba) not re-engage an employee and instead engage another person to perform the same, or substantially similar, work for the person as the employee had performed for the person;

(c) change the nature of the work or tasks the employee is required to perform for the person;

• [119] Svitzer submitted that according to the Revised Explanatory Memorandum that accompanied the amending legislation that introduced s.333H, the purpose of s.333H is to "prohibit an employer from making changes to the timing or terms of a fixed term contract" in order to avoid the prohibition contained in s 333E applying to it.[11]

• [120] Svitzer submitted that the phrase "in order to" denotes something's purpose. That is, it connects an action in a main clause to the intended effect described in the subordinate clause. Svitzer submitted the High Court has observed that, when the phrase 'in order to' is associated with an infinitive verb, it denotes purpose:

"It is common to use 'to' with the infinitive in the sense of 'in order to' so as to express purpose".[12]

• [121] Svitzer submitted that, albeit in the context of criminal law of provocation, a Western Australian Supreme Court decision has stated that the phrase 'in order to' "imports a mental element, that element being an intention to cause a specific result".[13] Svitzer submitted that the phrase 'in order to' therefore indicates that the purpose of the conduct and the intended effects of the conduct are relevant, when one comes to applying s.333H.

• [122] Svitzer submitted that the jurisprudence relating to the General Protections regime of the FW Act will be instructive in relation to the application of s.333H, because the General Protections regime also focuses on the purpose of a person's conduct. That is, "adverse action" is prohibited by the FW Act if the purpose of the action falls under a list of purposes that are proscribed by the FW Act.

• [123] Svitzer submitted that the General Protections regime connects a person's conduct with their motive by using the word "because", (ie. the action is taken "because"...). Svitzer submitted that despite the use of the word "because" instead of "in order to", the phrases are directed at the same issue - why was the relevant action or omission engaged in?

• [124] Svitzer submitted that in answering this question in the General Protections context, Courts have held that a reason must be "an operative and immediate reason for taking adverse action" to be considered a reason motivating particular conduct.[14] Svitzer submitted that the phrase "a substantial and operative factor" has also been utilised and can be used interchangeably with the notion of "operative and immediate".[15]

• [125] Svitzer submitted that it is accordingly likely that only a "substantial and operative" or "operative and immediate" reason for the relevant conduct will be caught by s.333H.

• [126] Svitzer submitted that Mr Sheehan has given direct evidence regarding why Mr Campbell was not offered a further fixed term contract or permanent employment. Specifically:

(a) Utilisation figures in the port indicated to Mr Sheehan that there was no ongoing need to retain the same numbers of crew in the port. Rather, it is likely that crew numbers will be reduced in the coming months.

(b) In any event, the form of engagement Mr Campbell was employed under (LIR Crew) was not an attractive form of engagement for Svitzer because it was causing issues with crew availability. Svitzer identified that, for operational reasons (ie. nothing to do with fixed term contracts), it would be preferable to engage part-time or casual employees.

• [127] Svitzer submitted that neither of these motivations have anything to do with the fixed term nature of Mr Campbells' engagement. Svitzer submitted that these motivations are also corroborated by the fact that a Master and an Engineer also had their fixed term contract engagements not renewed on 31 December 2023, despite neither the Master nor Engineer being covered by Division 5 of Part 2-9 (as they earn above the high income threshold).

• [128] Svitzer submitted the fact that Mr Campbell was treated no differently to other employees, for whom the provisions of Division 5 of Part 2-9 were completely irrelevant, strongly infers that the new fixed term contract laws were not the substantial and operative factors behind the relevant decision.

• [129] Svitzer submitted that all the LIR Crew, including Mr Campbell, were in fact encouraged to apply for alternative permanent roles during their engagements such as permanent part time engagements. By way of example, Svitzer submitted that, although under no obligation to do so, it wrote to all LIR Crew on 28 February 2023 (including Mr Campbell), informing the employees that their roles were unlikely to be extended beyond 31 December 2023 and expressly encouraged the employees to apply for alternative roles within Svitzer.

• [130] Svitzer submitted that in April 2023, approximately 1 month after issuing this encouragement to the LIR Crew, it commenced the process of advertising part-time vacancies for employees. These positions included a position of deckhand, which was specifically notified to Mr Campbell's representative - namely Mr Shane Maley, a delegate of the MUA.

• [131] Svitzer submitted that far from trying to avoid engaging Mr Campbell as a permanent, it provided Mr Campbell and the MUA every opportunity to try to secure alternative permanent employment (having notified Mr Campbell that his role would likely cease on 31 December 2023). This opportunity was simply passed over by Mr Campbell.

• [132] Svitzer submitted that this is not conduct consistent with an employer that is trying to avoid engaging fixed term employees on a permanent basis.

• [133] Svitzer submitted that for all of the above reasons, it disputed that section 333H has been contravened and maintained its decision was made for legitimate operational reasons.

• [134] Svitzer submitted that in the event the MUA is successful in establishing that Mr Campbell was not an employee for a specified period of time or that the consultation obligations had not been complied with (contrary to Svitzer's positions), questions arise as to the appropriate remedy.

• [135] Svitzer submitted that the reinstatement of Mr Campbell's former contract should not be entertained as a remedy for a variety of reasons.

Primary finding to be made if contract is inconsistent with the EA specified term provisions

• [136] Svitzer submitted that even if the Commission concludes that the 21 March Contract was entered into inconsistently with Clause 15.1 and 15.4 of the Agreement because the Commission accepts the MUA's position that the contract should not have been terminable in advance of its expiry date, the consequence is not that the Commission should make a finding that the contract is not for a specified period of time. Svitzer submitted this is because the parties clearly intended the engagement to be for a specified period of time - as evidenced by the first paragraph of the Contract offering "employment for a specified term" and the terms of the Sydney POPs which repeatedly describe the engagement as one for a "fixed term".

• [137] Svitzer submitted that should a dispute arise as to the validity of the contract (and Svitzer does not accept the Contract is invalid), the primary means of resolving such a dispute would be to find that the engagement is for a specified period of time and, accordingly, the Contract should not or cannot be terminated before the expiry of the term.

• [138] Svitzer submitted that to the extent that there is a contractual provision in the 21 March Contract permitting termination prior to the conclusion of the Contract Period, then Clause 20.1 of the 21 March Contract would simply be invalid to the extent that it permits early termination. Svitzer submitted that such an outcome would give effect to the terms of the Agreement and the mutual intentions of the parties with respect to the engagement. Svitzer submitted that this type of outcome does not require any finding to be made that Mr Campbell is in fact engaged for an ongoing term - which was never the intent of either party, nor the effect of my Order dated 20 June 2023.

Alternate finding to be made if contract is inconsistent with the Agreement specified term provisions

• [139] Svitzer submitted that notwithstanding all of the above, should the Commission conclude that Mr Campbell's engagement is that of a permanent full-time employee under Clause 15.2 of the Agreement, this does not render Mr Campbell's engagement to be one that was to be of an indefinite nature that could never end. Rather, the consequence of this finding would be that Mr Campbell has been engaged under Clause 15.2 of the Agreement and that the parties have mutually agreed (by their contract) in advance to what will be the end date of this engagement - being 31 December 2023.

• [140] Svitzer submitted that there is nothing unlawful or improper about an employer entering into an agreement with a permanent employee that the engagement will cease on a particular date. Svitzer submitted that such an arrangement is common in the Australian industrial regulatory framework, with parties regularly entering into 'outer-limits contracts'.

• [141] Svitzer submitted that in the part of the judgment of Navitas that was not disturbed by Alouani-Roby, the Full Bench of the Fair Work Commission identified that, where such 'outer-limits contracts' are entered into genuinely, then they will have effect according to their terms, absent materially vitiating factors.

• [142] Svitzer submitted that, absent vitiating factors, employment of a permanent employee such as Mr Campbell on an 'outer limits' contract would simply mean that the permanent engagement ends by mutual agreement on its specified end date. In this case, that date was 31 December 2022 (which was then varied by Commission orders to 31 December 2023).

The MUA Submissions ignore that permanent employees can also have their engagements terminated

• [143] Svitzer submitted that moreover, and in any event, it is uncontroversial that permanent employees can have their employment terminated. Svitzer submitted that this much is evident from Clause 20.1 of the Agreement.

• [144] Svitzer submitted that if the MUA's position is accepted and that Mr Campbell's employment could not cease according to its terms, then the consequence must be that Mr Campbell's employment has been terminated by Svitzer, effective 31 December 2023. Svitzer submitted that if Mr Campbell contends that there is some unfairness associated with the cessation of the engagement, the appropriate course would have been to challenge the cessation of the engagement through an unfair dismissal claim as opposed to raising a dispute under the Agreement.

• [145] Svitzer submitted that challenging the basis for a termination is not a matter that arises under the Agreement and accordingly falls beyond the Commission's jurisdiction in determining this dispute.

• [146] Svitzer submitted that the relief proposed by the MUA is also impracticable for two reasons.

• [147] First, Svitzer submitted that the Sydney POPs (incorporated into the Agreement) provide that there are to be 15 x full time crew servicing the port. This equates to 15 full time Deckhands, Engineers and Masters. Svitzer submitted that Mr Sheehan has given evidence that there are already 15 x full time deckhands in the port servicing the 15 full time crew positions (albeit one of these roles is via a job-share). Svitzer submitted that having regard to the resourcing in the Sydney POPs and the spare capacity within the existing crew, there is no present need for a permanent employee to be engaged as requested by the MUA.

• [148] Second, Svitzer submitted that Mr Campbell is not fit to work in any event. Mr Campbell has been absent from work on workers compensation since 22 March 2023, and there is no indication that he is capable of returning to work in the foreseeable future. Therefore, Svitzer submitted that reinstating Mr Campbell to his former employment will not change his ability to work or address Svitzer's resourcing needs in the port.

• [149] Svitzer submitted that in its submissions, AIMPE has attempted to criticise the decision to terminate the LIR Crew positions on the basis that AIMPE contends that the decision lacks merit. However, Svitzer submitted that AIMPE's Submissions fail to engage with Clause 1 of the Sydney POPs which make it patently clear that the discretion as to whether to retain the fixed term LIR contracts or bring them to an end was a decision that remained at the "discretion" of Svitzer.

• [150] Svitzer submitted that the Sydney POPs expressly provide:

"Svitzer has the discretion as to whether it will extend the fixed term contracts beyond the 6-month period and the discretion to appoint any fixed term employees from time to time similar to casual employment."

• [151] Svitzer submitted that in any event, the merit basis for the decision is outlined in the 27 November 2023 consultation letters and the evidence of Mr Sheehan - who provides rational reasons as to why the decision was made to cease engaging LIR Crew.

• [152] Svitzer submitted that AIMPE has further contended in its submission that Clause 13 of the Agreement should have been triggered as a result of a reduction in business and that the Sydney POPs cannot be relied upon to override the obligations in Clause 13 of the Agreement.

• [153] Svitzer submitted that these matters are not relevant. Svitzer submitted that it has not contended and is not contending that there has been a reduction of business in the Port. For the sake of abundant clarity, Svitzer noted that Mr Sheehan has identified two primary motivations for the cessation of the LIR Crew:

(a) Firstly, utilisation figures in the port indicated to Mr Sheehan that the way work was being performed meant that crew are not highly utilised throughout their working time. Mr Sheehan has identified there may be means of better utilising the existing resources, which could lead to a reduction in crew. However, none of this derives from a reduction in business. It is rather that Svitzer has identified that there might be more efficient ways in which it might be able to roster crew to have them engaged more often during their working hours.

(b) Secondly, the form of engagement Mr Campbell was employed under (LIR Crew) was not an attractive form of engagement for Svitzer because it was causing issues with crew availability. This made it preferable to engage part-time or casual employees instead of the LIR Crew. Again, this has nothing to do with business in the port being reduced.

• [154] Svitzer submitted that for these reasons, it rejects that Clause 13 of the Agreement is triggered by the relevant events subject of this dispute.

• [155] Svitzer submitted that for all of the above reasons, its conduct in allowing all the fixed term LIR contracts to end according to their natural terms has not contravened the Agreement or the FW Act. Rather, at all relevant times, Clause 1 of the Sydney POPs conferred a discretion on Svitzer to determine for itself (subject to consultation) whether it would continue the existing fixed term engagements or bring the contracts to an end (as it chose to do).

• [156] Svitzer submitted that on this basis, the Application should be dismissed and no relief granted.

• [157] In reply, the MUA reiterated its view in relation to the gross inadequacy of the consultation process - how the information provided was limited and plainly wrong.

• [158] Further, the MUA highlighted Mr Campbell's original terms of engagement and identified the primacy of the enterprise agreement over any other document associated with Mr Campbell's employment. The MUA submitted that the obvious conclusion was that Mr Campbell was actually a permanent full-time employee.

• [159] AIMPE submitted that Svitzer has mischaracterised the Agreement fixed term or task engagements as the same as "outer limits" or "maximum term" contracts. AIMPE submitted in reply that the nomenclature of the Agreement is specific, being a "fixed term" or "task" and there is no reference to "outer limits" or "maximum term" contracts or engagements in that industrial instrument.

• [160] AIMPE submitted that Svitzer has also misconceived AIMPE's submissions regarding the barrier to consultation detailed in the 2021 Sydney POPs. AIMPE clarified that its submissions are that the words at Clause 1 of the 10 September 2021 POPs that at the second paragraph:

"Svitzer has the sole discretion.... and discretion to...." and at (a), "....Svitzer will conduct a review of its operational requirements to assess whether, based on those requirements, it needs to...."

are the offending words that limit or fetter the consultation requirements under the Agreement.

• [161] AIMPE contended that it is genuine and bone-fide consultation under Clause 11 and 13 that the above words seek to avoid.

• [162] AIMPE clarified that its submission is not whether Svitzer can or can't do something, but simply that those terms limit the representations that could be made to highlight major or minor changes that influence or change the course a decision in Svitzer's exercise of "discretion".

• [163] AIMPE submitted that to contrast, if the words were, for example: "After consultation under Clause 11 and/or Clause 13, Svitzer shall use its discretion....", there would be no hinderance or fetter of the Agreement and the avoidance of chicanery of the sort alleged in these proceedings would more likely be avoided or not exist.

• [164] I have taken into account all of the submissions that have been submitted by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

• [165] Whilst the courts have recently reinforced the relevant principles that a Court and Tribunal should follow when interpreting enterprise agreements, the most concise and comprehensive decision which collated all of the historical precedent was the Commission's Full Bench decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).[16] Relevantly, in Berri the Full Bench enunciated 15 principles:

"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

1. the text of the agreement viewed as a whole;
2. the disputed provision's place and arrangement in the agreement;
3. the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

1. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
2. notorious facts of which knowledge is to be presumed; and
3. evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."

• [166] In the earlier decision, I extended Mr Campbell's contract until 31 December 2023. The principal reason for this decision was based on fairness, i.e., that Mr Campbell was entitled to be treated in the same manner as his five LIR colleagues. It is not in dispute that there are no longer any LIR crews operating in Sydney. The 16th crew have all been successful in obtaining roles within the 15 permanent crews. Mr Campbell and his 2 colleagues from the second LIR crew (or crew 17) were all given notice of their pending contract expiration in December 2023. I have taken this into account and find that Mr Campbell has not been treated in a different manner to his colleagues on this occasion.

• [167] Applying the Berri Principles, I am satisfied and find that the POPs have a clear and unambiguous meaning, that is, the six employees in the LIR crews were engaged for a specified term. If there was any ambiguity, the Applicant had the opportunity to call any of the 6 employees, including Mr Campbell, who were employed in the LIR crews to give evidence as to their understanding of the contracts that they signed. The Respondent has asked the Commission to make a Jones v Dunkel finding on the fact that Mr Campbell has not given evidence, even though he was in attendance at the Hearing. I note that the Applicant has not responded to the Jones v Dunkel issue raised by Svitzer in either its written or oral submissions. I am satisfied and find that Mr Campbell knew that he signed a contract for a fixed term, and that he understood that I extended this contract so that it expired on the same date as his colleagues on 31 December 2023. I am satisfied and find that Mr Campbell was not called to give evidence on the basis that his evidence would have been contrary to the Applicant's submission. Further, there is no dispute that the POPs give Svitzer the sole discretion to extend the contracts or to appoint other employees in a similar manner. I have taken this into account.

• [168] Svitzer submitted that, unlike the situation in the earlier matter, there is no longer a full time LIR crew for Mr Campbell to be placed into. The Master of crew 17 had his employment expire on 31 December 2023 and he has signed a casual contract and is being employed in that capacity. The Engineer also received correspondence in December that his employment was to expire on 31 December 2023. In the meantime, he has been offered and accepted a new fixed term role in another crew. If Mr Campbell were to be reinstated, Svitzer argued that he would be a Rating without a crew. I accept the relevance of this submission. In many ways it correlates to my earlier decision where I found that Mr Campbell had been treated unfairly in comparison to his colleagues. In this current scenario, it would be contradictory if Mr Campbell maintained a permanent role and the Master of crew 17 did not. I note that neither the Master nor his union have sought leave to intervene in this matter. I have taken this into account.

• [169] I am not satisfied that the standard of consultation that was initially undertaken by Svitzer was appropriate. The determination of what was the "relevant information" in accordance with Clause 11(a) of the Agreement was not a discretionary decision for Svitzer. The information provided as per the consultation provisions had to be relevant and therefore complete. The information provided in the slideshow was incomplete, illogical and wrong. Svitzer could not even provide a common date in relation to the period of analysis in either the slideshow or Mr Sheehan witness statement. Further, Mr Sheehan could not answer some basic questions from me about the data, which should have been part of his presentation to the parties in December. Finally, to hide the name of the organisation who undertook the roster review was also immature and irrational. I have taken this into account.

• [170] Consultation is not a game. It is an important part of a change process where the outcome is going to have a significant impact on the lives of affected employees. Employees and their representatives have a right to be consulted in a professional and mature manner, where the information provided is easy to understand, comprehensive and logical. Svitzer failed in this endeavour on 1 December 2023. I have taken this into account.

• [171] However, I accept the submission from Svitzer that all of the requested information was eventually provided to the Unions and the affected employees. Further, that even if the information had been provided earlier, further meetings on the issue would not have provided an alternate outcome unless the LIR crews could work to the same flexibility as a casual employee. I have taken this into account.

• [172] I do not accept that the consultation provision in the POPs is contradictory to the consultation provisions of the Agreement. Clause 1 of the POPs was the subject of negotiation between the parties. It is not in dispute that Svitzer changed its position following these negotiations and accepted the proposition of the Unions in relation to making these LIR crews full-time. An important provision of Clause 1 is the specific form of consultation which was agreed by the parties in relation to the LIR crews. In AWU v BlueScope Steel,[17] a Full Bench of the Commission held:

"As a matter of construction a specific provision dealing with a particular topic will normally override a more general provision dealing with the same topic."

Based on this principle, I am satisfied and find that the consultation term in Clause 1 of the POPs was the appropriate consultation process to be followed by Svitzer in relation to the LIR crews. I have taken this into account.

• [173] I do not accept that Svitzer has not complied with Clause 13 of the Agreement. There is no indication or evidence that the demand for Svitzer's services has changed in the Sydney Ports. What has changed is the way that Svitzer seeks to service this demand. I have taken this into account.

• [174] The Applicant has submitted that Svitzer has breached a new provision of the FW Act, section 333H(ba) and (c), which state:-

(1) A person must not do any of the following in order to avoid any right or prohibition under this Division:

(a) terminate an employee's employment for a period;

(ba) not re‑engage an employee and instead engage another person to perform the same, or substantially similar, work for the person as the employee had performed for the person;

(c) change the nature of the work or tasks the employee is required to perform for the person;

• [175] The Applicant submitted that, if not for the new section of the FW Act, Svitzer would have simply extended the fixed term contracts of the LIR crew until they were ready to implement the new roster. Further, by changing the work from permanent LIR to casual, Svitzer has changed the nature of the work, even though they are required to continue to perform the same towage work.

• [176] Svitzer raised a jurisdictional objection to the Commission dealing with any issue relating to s.333H on the basis that the Applicant has not complied with the Disputes Procedure contained in the Agreement, or the notification requirements under s.333L of the FW Act, which state:-

"10. Continuity of Operations and Dispute Resolution Procedure

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

"333L Disputes about the operation of this Division

(1) This section applies to a dispute between an employer and employee about the operation of this Division.

(2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

(b) if the parties notify the FWC that they agree to the FWC arbitrating the dispute - the FWC may deal with the dispute by arbitration.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).

(5) The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

I am satisfied and find that the Commission does not have the jurisdiction to deal with this component of the dispute, due to the restrictions identified in the Disputes Procedure of the Agreement, on the basis that this issue is not a matter arising under the Agreement, nor is it in relation to the NES.

• [177] If the Commission did have jurisdiction, then I would find that the Commission could not deal with the dispute because the Applicant has not complied with s.333L of the FW Act. There is no evidence before the Commission that the parties have held discussions at the workplace in relation to the new provisions of the FW Act. Further, the F10 application from the Applicant does not mention the new provisions so the dispute has not actually been referred to the Commission (see s.333L(3)). Finally, Svitzer has not agreed to the Commission arbitrating the dispute (see s.333L(4)(d)).

• [178] However, even if the Applicant had satisfied the requirements of the FW Act and Svitzer had agreed to allow the Commission to arbitrate, prima facie, I do not believe that Svitzer has breached s.333H of the FW Act. I do not accept that Svitzer has employed some sinister plan to overcome s.333H. Svitzer gave notice in February 2023 of their intention to conclude the fixed term arrangements on 31 December 2023. I do not believe that s.333H of the FW Act had even been tabled in Parliament at that time. It would be extremely difficult for any Tribunal to find any employer guilty of breaching prospective legislation that had not even been tabled, at first instance, in the Parliament. Further, the replacement of the LIR crew with casuals is not a like for like replacement. The casual crews are clearly more flexible. Casual crews are required to respond on a 2-hour call out whereas LIR crews are on leave the following day if they have not been rostered to work by 1800 hours (6pm).

• [179] The MUA submitted that Mr Campbell's originating contract was not a contract for a specified period of time because it could also be extended in writing or concluded early by the giving of notice. However, the law in relation to these types of contracts has recently changed. Previously, the decision of the majority in Navitas would have provided some benefit for the Applicant. However, a recent decision of Raper J, in Alouani-Roby v National Rugby League Ltd [2024] FCA 12 (Alouani-Roby), has changed the application of section 386(2). Relevantly, Her Honour said:-

"I accept that the contrary argument is that the phrase "contract of employment for a specified period of time" is replicated in the FW Act and that the phrase had previously been construed as not applying to contracts which were essentially outer limit contracts which allowed for early termination: see Cooper v Darwin Rugby League Inc (1994) 57 IR 238 at 241; Andersen v Umbakumba Community Council (1994) 126 ALR 121 at 125-6. However, the phrase must be construed in the context of the current, differently crafted, legislative provision as a whole. That context is instructive and supports the view that the legislature intended that the provision have a different effect than how its predecessor provisions had been interpreted. A construction of the provision on its terms supports the NRL's interpretation without need for recourse to the extrinsic material. I accept the NRL's argument that s 386(2)(a) applies to outer limit contracts which allow for early termination but only applies where the employee's employment has been terminated at the end of the specified period of time.

Further, given the difference between the provisions, I do not accept that the re-enactment presumption applies. The availability of the presumption depends on the nature of the legislation, the legislative context and the legislative history indicating an awareness on the part of the legislature of earlier authority on the meaning of the language that is being re-enacted. Where the provision later enacted is in an altered form, it is presumed to have a different meaning: Baini v The Queen [2012] HCA 59l; 246 CLR 469 at [43]-[44] per Gageler J."[18]

This decision makes it clear that a contract with a specified end date can result in an employment relationship concluding due to the effluxion of time, even if there are notice provisions in the contract. This scenario describes the contract that was signed by Mr Campbell. I have taken this into account.

• [180] I am satisfied and find that the decision in Alouani-Roby is relevant to my consideration, noting however, that the matter before me is not an unfair dismissal application. I have taken this into account.

• [181] Mr Campbell's employment with Svitzer has had an unfortunate industrial history through no fault of his own. There is not a shred of evidence to suggest that he is not a good Rating. Any suggestion to the contrary is false.

• [182] However, this matter does not involve Mr Campbell's competence but whether the actions undertaken by Svitzer in allowing the fixed term contracts of the LIR crew to expire were legal and appropriate.

1. Following the obiter in Alouani-Roby, I am satisfied and find that Svitzer has not acted illegally in allowing Mr Campbell's permanent, fixed term employment to simply expire.

1. I am satisfied and find that Mr Campbell was not an ongoing permanent employee.

1. I am satisfied and find that the Commission does not have the jurisdiction to currently deal with the matter in relation to s.333H of the FW Act.

[1] AIMPE Outline of Submissions; Annexure 'AIMPE 1'.

[2] AIMPE Outline of Submissions; Annexure 'AIMPE 2'.

[3] PR751146, PR760571 and PR761255.

[4] PR760164.

[5] Alouani-Roby v National Rugby League Ltd [2024] FCA 12 at [89]- [101].

[8] Witness Statement of Mr Dylan Sheehan at [114(b)].

[9] Witness Statement of Mr Dylan Sheehan; Annexure DS-29, page 13.

[10] AMWU v Berri [2017] FWCFB 3005 at [114.13].

[11] Revised Explanatory Memorandum at [593].

[12] Chew v The Queen [1992] HCA 18; (1992) 173 CLR 626 at 630 per Mason CJ, Brennan, Gaudron and McHugh JJ.

[13] Horlatsch v Thomson [1999] WASCA 287 at [15].

[14] CFMEU v BHP Coal Pty Ltd [2016] FCA 1009; 262 IR 176 at [85] per Gageler J describing the "unanimous holding" of Board of Bendigo.

[15] Board of Bendigo at [103] per Gummow and Hayne JJ; Qantas v TWU at [6] per Kiefel CJ, Gageler, Gleeson and Jagot JJ.

[16] [2017] FWCFB 3005.

[17] The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - New South Wales Divisional Branch v BlueScope Steel (AIS) Port Kembla [2015] FWCFB 1798.

[18] Alouani-Roby v National Rugby League Ltd [2024] FCA 12 at [97] and [98].

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