//
[77]
[2019] FWC 1745
General information, not legal advice.
Fair Work Commission
2019-05-31
Original judgment source is linked above.
[2019] FWC 1745 [Note: An appeal pursuant to s.604 (C2019/3812) was lodged against this decision.]
s.739 - Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] On 7 November 2018, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 739 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute with Maersk Crewing Australia Pty Ltd (Maersk) in accordance with the dispute settlement procedure contained in clause 10 of the Maersk Crewing Australia Pty Ltd Maritime Offshore Oil and Gas Industry (Integrated Ratings, Cooks, Caterers and Seafarers) Enterprise Agreement 2018 (Agreement).
[2] On 27 November 2018 and 29 January 2019 the parties attended conciliation conferences before me with a view to resolving the dispute. The Application was not able to be resolved at the conference and the CFMMEU requested that the Application be referred for arbitration.
[3] The Application was initially listed for hearing on 7 March 2019 but was adjourned part heard to provide Maersk with the opportunity to file additional evidence. The hearing was completed on 15 March 2019 (Hearing).
[4] At the Hearing Mr Luke Edmonds appeared on behalf of the CFMMEU and Mr Simon White of the Australian Mines and Metals Association (AMMA) appeared on behalf of Maersk. Mr Edmonds called one witness, Mr Justin Knight (Mr Knight) who is employed by Maersk as a Cook on the Vessels. Mr White called two witnesses, Ms Melaine Nottle (Ms Nottle) who is employed by Maersk in the position of Human Resources Manager and Mr David Kearney (Mr Kearney) who is employed by Maersk in the position of Operations Manager / Managing Director.
[5] The Maersk Mariner and Maersk Master are identical newly constructed SALT 200 Starfish vessels that have recently been added to the Maersk fleet (Vessels).[1] They are categorised as Schedule One - Support vessels for the purposes of the Agreement.[2]
[6] The Agreement covers employees employed in the classifications of:
Cook
Caterer
Steward
Integrated Ratings (IR)
[7] The minimum number of employees covered by the Agreement required to form the crew of the Vessels is set out in Schedule 1. Clause 27.5 provides that this number shall increase as the number of persons on board (POB) increases.[3]
[8] Catering and cleaning on board the Vessels, with the exception of the cleaning of crew cabins, is performed by employees covered by the Agreement. Crew are responsible for cleaning their own cabins.[4] Depending on the number of persons on board catering and/or cleaning is performed by:[5]
a. employees employed predominantly to perform catering and/or cleaning for example employees employed in the classifications of Cook, Caterer or Steward; and/or[6]
b. by employees employed in the classification of IR in addition to their operational duties such as watch keeping.[7]
[9] Clause 27.5(a) of the Agreement sets out the agreed catering benchmark manning depending on the number of POB:
(a) The following benchmark manning is agreed for all Schedules, except for Schedule 4.
Nil (no caterer is provided unless there is a 10th person sent to the Vessel)
1 Chief Cook, 1 Cook, 1 Chief Steward, 1 Caterer and 2 Cook-Caterers
1 Chief Cook, 1 Cook, 1 Cook-Baker, 1 Chief Steward and 3 Caterers
1 Chief Cook, 2 Cooks, 1 Cook-Baker, 1 Chief Steward and 3 Caterers
1 Chief Cook, 1 Cook-Baker, 1 Cook, 1 Cook-Caterer, 1 Chief Steward and 4 Caterers
1 Chief Cook, 2 Cooks, 1 Cook-Baker, 1 Chief Steward and 5 Caterers
Apply one caterer per 12.5 POB, where POB exceed 111."
[10] Clause 27.5(b) of the Agreement provides a mechanism for determining the catering manning in the event the parties don't agree that the catering benchmark manning should apply. The mechanism requires consideration of a number of specified criteria.
[11] The dispute, although initially more broadly framed, was narrowed at the Hearing to concern whether the Vessels should be crewed with an additional Steward over and above the catering benchmark manning when the POB is 10 to 18 (Dispute). According to Maersk the Vessels are not operated with a POB of less than 10 in Australian waters.[8]
[12] The catering benchmark manning for a Schedule One - Support Vessel with a POB of 18 or less is 1 Cook. Although Maersk manned the Vessels with an additional part time Steward when the Vessels first began operating in Australian waters.[9]
[13] Maersk raised two objections to the Application.
[14] Firstly, Maersk assert that the Dispute had been previously raised by the CFMMEU and that the CFMMEU had agreed that the Dispute had been resolved and given an undertaking not to re-agitate the Dispute. Maersk therefore sought to have the Application dismissed pursuant to section 587 of the FW Act on the grounds that it was vexatious.[10] In the event that I were to find that this Application was a new and different dispute then Maersk submit that the CFMMEU has not complied with the dispute resolution procedure set out in the Agreement and that therefore I have no jurisdiction to determine the Application.[11]
[15] On 15 June 2018 the CFMMEU filed application C2018/3287. The application asserted that the Vessels had been wrongly classified as Schedule One vessels for the purposes of the Agreement and as a consequence of their engine size were more appropriately classified as Schedule Two vessels. Classification as Schedule Two vessels would result in an increase in the minimum manning number of IRs required to operate the Vessels.
[16] On 29 June 2018 Maersk filed application RE2018/763 asserting that Mr George Gakis, an Organiser of the CFMMEU, (Mr Gakis) had conducted himself in an inappropriate manner in his dealings with Ms Nottle. On 13 July 2018 the CFMMEU filed application C2018/3836 which concerned a dispute as to appropriate income protection provider for the purposes of the Agreement.
[17] I held a conference in relation to C2018/3287 on 25 June 2018. The dispute could not be resolved at the conference and the proceedings were adjourned to allow the parties to have further discussions.
[18] On 19 July 2018 Mr Kearney wrote to Mr Danny Cain, WA Assistant Branch Secretary of the CFMMEU (Mr Cain) seeking to reset the industrial relationship between the parties. Mr Kearney offered to discontinue application RE2018/763 and make the following undertaking:[12]
"During any period in which the vessel is contracted to perform work in Australia under the current EA, Maersk Supply Service will implement the following minimum manning levels on our M-Class Vessels:
[19] In return Mr Kearney sought a commitment from the CFMMEU to discontinue applications C2018/3287 and C2018/3836 and take no further action on those issues. [13]
[20] The proposed resolution involved the parties agreeing that a supernumerary part time Steward added to each of the Vessels when they first began working on the coastline would be removed from the Vessels and an additional IR than would otherwise be required by Schedule One of the Agreement added to the crew.
[21] Mr Cain confirmed the CFMMEU's acceptance of those terms on 20 July 2018. [14] On 17 July 2018 the CFMMEU discontinued Application C2018/3836.[15] Maersk discontinued Application RE2018/763 on 20 July 2019 and on 19 July 2019 CFMMEU discontinued Application C2018/3287.
[22] On 12 September 2018 Mr Gakis contacted Ms Nottle asking her to confirm Maersk's position with respect to a workforce request for an extra Steward to be added to the crew of the Vessels. Mr Gakis followed up on 3 October and 8 October 2018 by email and telephone without a response from Maersk.[16]
[23] Ms Nottle eventually responded on 9 October 2018 to advise that Maersk did not accept a claim for an extra steward noting that an additional IR was recently added to the manning (presumably a reference to the resolution of application C2018/3287). [17]
[24] Mr Gakis contacted Ms Nottle again on 30 October 2018 setting out in detail the basis of the CFMMEU claim for the extra Steward addressing each of the criteria contained in clause 27.5(b) of the Agreement. [18]
[25] Ms Nottle did not respond to Mr Gakis's email and on 5 November 2018 Mr Cain sent the following email to Ms Nottle: [19]
We have not received a response to the below email justifying the position of Caterer on the vessels.
If we do not receive a response we will take this as the final step in the DRP as being complete and will lodge the appropriate paperwork to have the matter heard.
If you have any objections to this or believe that the DP requirements have not been met, let us know asap as we are seeking a time resolution...."
[26] Ms Nottle responded the same day to advise that Maersk did not accept that there was an operational need for an extra Steward. She did not indicate that Maersk believed that the dispute resolution procedure had not been complied with or that Maersk had any objections to the matter being referred to the FWC. In none of the correspondence did she indicate that Maersk believed that the issue of an extra Steward had been resolved by the agreement in July 2018 to add an extra IR. [20]
[27] Subsequently the CFMMEU filed the present Application.
[28] The dispute the subject of this Application concerns the operation of clause 27.5(b) of the Agreement and makes a claim for additional catering manning based on the matters set out in clause 27.5(b) of the Agreement. The dispute the subject of application C2018/3287 related to the Vessels but concerned whether size of the engines on board the vessels impacted on the minimum number of IRs required by Schedule 1 of the Agreement to operate the Vessels.
[29] It appears from the correspondence between the parties that the parties were of the view that the dispute the subject of this Application and the dispute the subject of application C2018/3287 was a separate and different dispute.
[30] Ms Nottle says that she indicated in a telephone conversation with Mr Gakis on 27 August 2019 that she believed that the two applications related to the same dispute and that the dispute had already been settled. She produced no evidence to corroborate the assertion, for example by way of contemporaneous file note. Had that been her genuine belief at the time it seems odd that despite having plenty of opportunity to do so she did not assert it in writing at any point in the series of emails exchanged between the parties.[21]
[31] Under cross examination Mr Kearney conceded that the request for an additional steward pursuant to the catering benchmark was a different dispute to the one involving a claim for an extra IR due to the engine size of the vessels.[22]
[32] I am of the view that the Dispute the subject of this Application is a separate and different dispute to the one the parties resolved albeit that the resolution of one (removal of the supernumerary part time Steward) may have triggered the other. In the circumstances I am not satisfied that the Application is vexatious or that it should be dismissed.
[33] In the event that I were to find that this Application was a new and different dispute Maersk submit that the CFMMEU has not complied with the dispute resolution procedure set out in the Agreement and that therefore I have no jurisdiction to determine the Application.[23]
[34] The dispute resolution procedure (DRP) is set out in clause 10 of the Agreement and provides as follows:
"10.1 When an industrial dispute arises, including a matter arising under this Agreement or the NES, this clause sets out the procedure to resolve the dispute.
Where a matter arises when the Employee(s) are on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and the Master.
Where a matter arises when the Employee(s) are not on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and the Employer's nominated representative.
The matter will be referred for discussion between the Employee, the Employee's Union delegate or other nominated representative and the Master and/or Employer.
The matter will be referred for discussion between the appropriate Federal or Branch Union Official or other nominated representative and the Employer's Human Resources or Industrial Relations Manager.
In the event that the preceding steps have failed to resolve the matter and/or dispute, any person bound/covered by this Agreement or nominated other representative may refer the dispute to the FWC for conciliation and/or arbitration pursuant to Section 739 and Section 595 of the Fair Work Act.
10.2 Where the matter remains unresolved, the FWC may deal with the dispute in two stages:
(a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then:
(ii) Make a determination that is binding on both of the parties.
10.3 While the parties to the dispute are trying to resolve the dispute using the procedures in this clause:
(a) An Employee must continue to perform their work as they would normally, unless they have a reasonable concern about an imminent risk to their health or safety; and
(b) An Employee must comply with a direction given by the Employer to perform other available work at the same workplace, or at another workplace, unless:
(ii) Applicable occupational health and safety legislation would not permit the work performed.
10.4 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with, this clause, but note that a decision of a single member of the FWC can be appealed to a Full Bench of the FWC.
10.5 An Employee who is party to the dispute or the Employer may appoint another person, organisation or association to accompany and/or represent them for the purposes of the procedures in this clause."
[35] Maersk submit that Stage One of the DRP has not been complied with because the dispute the subject of this Application has not been raised by an employee with the Captain of either Vessel.[24]
[36] Mr Knight asserts that the need for additional catering and/or cleaning support was raised with the Captain numerous times, including in safety meetings and in general conversation. He says that it has also been brought up at consultative meetings where delegates from the Vessels meet with company representatives. Furthermore he says emails have been sent to the company representatives in Copenhagen, Denmark.[25]
[37] None of the Captains were called as witnesses to confirm that the issues the subject of this Application had not been raised with them.
[38] Despite being invited to do so prior to the Application being filed there is no documentary evidence that Maersk indicated that it believed that the DRP had not been complied with or that Maersk had any objections to the matter being referred to the FWC.
[39] Based on the evidence before me I am satisfied that the parties have complied with the DRP and that the Application is properly before me.
[40] The Dispute concerns whether the Vessels should be crewed with an additional Steward over and above the catering benchmark manning when the POB is 18 or less.
[41] The CFMMEU submit that because the Vessels are larger than normal Schedule One vessels the work employees covered by the Agreement are required to do on board when the POB is 18 or less is over and above the work usually performed by such employees on Schedule One vessels when the POB is 18 or less.
[42] Maersk submit that because the Vessels are crewed in excess of the minimum safe manning level set by the authority responsible for registering the Vessels in their flag state of Denmark and because the vessels are new, technologically advanced and ergonomically designed that notwithstanding their size an additional Steward is unnecessary.
[43] The agreed benchmark manning for a Schedule 1 vessel with between 9 and 18 POB is 1 cook.
[44] Clause 27.5(b) provides the following mechanism for determining the catering manning in the event the parties don't agree that the catering benchmark manning should apply.
"Should there be disagreement, the numbers will be determined according to the criteria below:
(i) Size and configuration/layout of the accommodation and deck levels;
(ii) Public areas
[45] The parties agreed that only these criteria may be taken into account when determining a different catering manning than that specified in clause 27.5(a).[26]
[46] I note that these factors do not include the financial implications of the addition of an additional crew member.
[47] At the Hearing the CFMMEU and Maersk called one witness each to give evidence with respect to the criteria set out in section 27.5(b) of the Agreement.
[48] Mr Knight filed a witness statement and gave evidence under oath on behalf of the CFMMEU. Mr Knight has been employed as a cook in the offshore oil and gas industry for 11 years. For the last seven years he has been employed by Maersk, prior to this he was employed by Svitzer to perform work on board Maersk vessels. Between 2008 and 2012 he was employed as a cook on the Schedule 1 vessel, Maersk Supporter. From 2012 to 2015 he was rostered as a cook on the Schedule 2 vessel, Maersk Nomad. From 2015 to 2018 he was rostered on the Schedule 1 vessel, Maersk Logger. In 2018 he was rostered for two swings on the Maersk Mariner, since that time he has been rostered on the Maersk Master.[27] A swing is typically of five weeks duration.[28]
[49] As Cook Mr Knight is personally responsible for cleaning various areas of the Vessels and for ordering the cleaning products for cleaning which occurs elsewhere. He says that as a consequence of this and his discussions with other employees responsible for cleaning that he has knowledge of when and where cleaning occurs.[29] While on board the Vessels he also has the opportunity to observe which areas of the Vessels are used, which are cleaned and when they are cleaned.[30]
[50] Mr David Kearney filed a witness statement and gave evidence under oath on behalf of the Maersk. Since 17 December 2012 Mr Kearney has been employed as the Operations Manager for Maersk and since 1 March 2017 the Managing Director. Prior to 2012 he was a Captain on Maersk vessels.
[51] He conceded under cross examination that:
a. He hasn't been a Captain for more than 7 years.[31]
b. He has never been a Captain on either of the Vessels.[32]
c. He has only been on board the Vessels while they are in port.[33]
d. He has never been on board the Vessels while they were operational.[34]
e. The longest uninterrupted period he has spent on the Vessels is three days.[35]
[52] In fact Mr Kearney conceded that someone on board the Vessels would have a more accurate knowledge of the cleaning regime on board the Vessels than himself.[36]
[53] Not surprisingly given his limited recent offshore experience the majority of Mr Kearney's evidence was based on information which he says was provided to him by an unidentified Captain or Captains. A significant portion of which was allegedly provided to the Captains by Cooks or other unidentified seafarers and therefore was third hand by the time it reached Mr Kearney.
[54] In his evidence, Mr Kearney did not identify the Captain or Captains whom he says recounted the conversations to him nor the seaman with whom the Captain/s alleged spoke. Nor does Mr Kearney specify in his evidence when or where those conversations occurred. Maersk did not call as witnesses any of the Captains, Cooks, IRs or other seaman employed on the Vessels.
[55] Mr Knight says that to the extent that Mr Kearney has relied on his own knowledge or the knowledge of other Captains he is likely to be misinformed because Captains do not have direct knowledge of catering and cleaning activities on board rather it is the next lower in command, the Chief Officer, who has oversight of such activities.[37]
[56] Where their evidence has differed I have preferred the evidence of Mr Knight who has more recent direct personal experience on board the Vessels while noting that if an extra steward is appointed Mr Knight stands to benefit personally as the Steward will be available to assist Mr Knight perform his duties.
[57] A portion of Mr Kearney's evidence dealt with the reduced catering, cleaning and upkeep requirements when a vessel has a lower POB count as opposed to the requirements when a vessel has a POB which is higher. The workload variation associated with a higher or lower POB is dealt with by the sliding scale of catering manning in the table in clause 27.5(a) of the Agreement. It is not of assistance when determining the catering manning of vessels with the same POB which is the task I'm required to undertake in this Application.
[58] Ms Nottle filed a witness statement on behalf of Maersk. Her witness statement and oral evidence was directed to the Jurisdictional Objections.[38]
Size and Configuration/Layout of the accommodation and deck levels
[59] The CFMMEU submit that the Vessels are significantly larger than other Schedule 1 vessels in the fleet with a large volume of common areas which create a need for additional cleaning. In addition to having an extra deck the CFMMEU say that the Vessels also have extra ROV facilities, a coffee shop and reception areas.[39]
[60] According to Mr Knight, the deck area on the Vessels is much larger than on previous Schedule 1 and 2 vessels that he has worked on. [40] For example he estimates that the Bridge is 5-6 times larger than on previous vessels he has worked on. Mr Knight says that the Bridge is cleaned daily by an IR. He says that this involves vacuuming or sweeping the area, mopping, cleaning up the sinks and coffee area, cleaning communal toilets, emptying bins, spray and wiping benches and work areas and cleaning all the Bridge windows. He says that he is told by the IR's that it takes them 1.5-2 hours daily to mop the Bridge alone, in addition to the other cleaning duties on the Bridge. [41]
[61] Mr Kearney concedes that the Vessels are bigger than other older Schedule 1 vessels. However he says that as the Vessels are new, ergonomically designed and technologically advanced that they require less maintenance and upkeep and the maintenance and upkeep that is required can be performed more efficiently. In his witness statement Mr Kearney asserted that the Bridge only required cleaning 2-3 times per week. He says that mopping the Bridge takes 30-45 minutes.
[62] Interestingly despite Mr Kearney's assertion that the Vessels require less upkeep because they are new, ergonomically designed and technologically advanced Maersk chose to crew the Vessels with an additional part time Steward when the Vessels initially began operations in Australian waters.
[63] Mr Kearney also says that when the POB is less than 19 not all areas of the Vessels are in daily use and therefore the Vessels require less upkeep. That there is less cooking and cleaning the lower the POB is taken into account in the sliding scale in the manning schedule and is not of assistance in determining why vessels with the same POB might have different catering manning requirements.
[64] The parties agree that the Vessels are bigger than comparable Schedule One vessels. The parties disagree as to the frequency at which cleaning occurs however all other things being equal if the same cleaning frequency is applied a larger area might reasonably be expected to take longer to clean than a smaller area.
[65] Maersk assert that notwithstanding the area to be cleaned is larger that work can be completed in a comparable or shorter time than smaller older vessels because the surfaces to be cleaned and maintained are brand new. Yet in cross examination Mr Kearney conceded that just because a vessel is new doesn't mean is requires less cleaning and that it still gets as dirty as older vessels.[42]
[66] Even if a brand new Vessel is quicker and easier to clean because the surfaces are brand new over time as the Vessels age, particularly in the harsh offshore environment in which the Maersk fleet operate, the differential in time savings between new and old vessels might be expected to decline. However the size differential between the Vessels and the rest of the fleet will remain.
[67] I am satisfied that the Vessels are larger than other comparable vessels. Whether the newness of the Vessels currently results in efficiencies in cleaning and maintenance, which overcomes the larger size of the Vessel is in dispute. Maersk says it does Mr Knight says it doesn't. Given the scale of the Vessels Mr Knight's evidence is plausible. For the reasons outlined above, including that Mr Knight is regularly rostered to work on the Vessels and either personally performs cleaning or has the opportunity to observe it being performed first hand I have accepted his evidence in preference to Mr Kearney who on his own admission has not been on board the Vessels whilst the Vessels are operational and relies for his opinions on information provided by unidentified Captains or other personnel.
[68] I am satisfied that the size, configuration and layout of the accommodation and deck levels is a criteria in favour of the addition of an extra Steward to the crew of the Vessels when the POB is 18 or less.
[69] The CFMMEU submit that the Vessels have more common areas and that the common areas are larger than other comparable vessels.[43]
[70] Mr Knight estimates that the common areas on the Vessels are 3-4 times larger than that on the other Schedule 1 and 2 vessels he has previously worked on.[44]
[71] In support of this assertion the CFMMEU tendered the vessel specification sheets for the Maersk Master and several older Maersk vessels. The specification sheets reveal that the older vessels are shorter and narrow but have greater accommodation capacity:[45]
[72] The CFMMEU submit that given the Master is longer and wider but accommodates less people that it can be inferred that a greater proportion of the Master is devoted to public areas which require cleaning by IRs as opposed to accommodation areas which are generally cleaned by the crew.[46]
[73] Mr Knight says that the corridors on D, C & B Deck, Gym on A Deck, Crew Break Room on A Deck, Crew Recreation Room on C Deck and Men's Change Rooms are cleaned daily and the Ships Office, Female Change Rooms, Reception Area on B Deck, Hospital and Conference Room are cleaned weekly. He also says that the ROV control and ROV Office are cleaned fortnightly if not weekly unless there is an ROV on board in which case he says it is cleaned daily.[47]
[74] Mr Knight explained that alleyways are swept and mopped daily and the bulkheads, ceilings, walls, handrails and doors are cleaned weekly. Alleyways can extend 40 metre and maybe 1.5 metres wide. [48]
[75] Attached to Mr Kearney's witness statement was a document which purported to indicate the rooms requiring cleaning with a POB of 18 or less.[49] Mr Knight contested the accuracy of this document.[50]
[76] Mr Kearney conceded that the Vessels have more meeting space and recreation areas than other vessels. He also conceded that the mess, change rooms and gym require daily cleaning. However he says that with fewer POB not all areas are in use daily and therefore not all areas require upkeep.[51]
[77] I am satisfied that the public areas on the Vessels are larger and more numerous than other comparable vessels. I am satisfied that there is less cooking and cleaning the lower the POB is taken into account in the sliding scale in the manning schedule. It is not of assistance in determining why vessels with the same POB might have different catering manning requirements. To the extent that such facilities are used on a vessel with a POB of 18 or less then I accept the CFMMEU proposition that where those facilities are larger and more numerous they might reasonably take longer to clean.
[78] Given the scale of the Vessels Mr Knight's evidence is plausible. For the reasons outlined above, including that Mr Knight is regularly rostered to work on the Vessels and either personally performs cleaning or has the opportunity to observe it being performed first hand I have accepted his evidence in preference to Mr Kearney who on his own admission has not been on board the Vessels whilst the Vessels are operational and relies for his opinions on information provided by unidentified Captains or other personnel.
[79] I am satisfied that the scale of the public areas on the Vessels is a criteria in favour of the addition of an extra Steward to the crew of the Vessels when the POB is 18 or less.
[80] The Vessels each have accommodation for 52 people. The crew are responsible for cleaning their own cabins.[52]
[81] The CFMMEU submit that with a POB of less than 19 there is an increased workload for IRs cleaning unoccupied cabins.[53]
[82] In his witness statement Mr Kearney asserted that cabins which are not in use are locked and do not require servicing.[54] Attached to his witness statement was a document with plans for each deck level marked with a red line for each cabin which he asserted was "not in use and blocked off."[55] However in the same witness statement Mr Kearney admitted that toilets in unused cabins required flushing weekly and the taps required running monthly. [56]
[83] In relation to the cabins crossed out on the deck plans attached to Mr Kearney's statement Mr Knight says that of the cabins crossed out on D-Deck one is his cabin which he cleans daily, of the cabins crossed out on C Deck one is his office which is used and cleaned daily.[57] Mr Knight's evidence is that empty cabins are serviced weekly. According to Mr Knight this entails the Rooms being cleaned and dusted, the toilets flushed and the showers and basins run for several minutes to prevent the development of Legionnaires disease.[58]
[84] Under cross examination Mr Kearney conceded that empty cabins create more work than full cabins.[59]
[85] The evidence and submissions of both parties in relation to this criteria relates to the differences in cleaning workload as a result of a difference in the number of POB. This is taken into account in the sliding scale in the manning schedule. It is not of assistance in determining why vessels with the same POB might have different catering manning requirements. The CFMMEU have not identified anything peculiar to the Vessels with respect to the number of cabins or berths to service that would justify a different catering manning level.
[86] I am not satisfied that the number of berths or cabins on the Vessels weighs in favour of the addition of an extra Steward to the crew of each Vessel when the POB is 18 or less.
[87] The CFMMEU submit that, other than when conducting anchor handling, the Vessels run with minimal crew. According to the CFMMEU this perversely increases the cleaning workload. Firstly because there are more unoccupied cabins which require cleaning and secondly because there are no Stewards and only one Cook on board the general cleaning duties are spread among fewer individuals.
[88] That there might be more work to do when there are fewer POB if the IRs are required to clean empty cabins is equally applicable to all Schedule One vessels with 18 or less POB. The CFMMEU have not identified anything peculiar to the Vessels with respect to their POB which would justify a different catering manning level.
[89] I am not satisfied that POB on the Vessels weighs in favour of the addition of an extra Steward to the crew of the Vessels when the POB is 18 or less.
[90] The crew on the Vessels perform their own laundry other than on crew change day when the linen for the departing crew is left to be performed by the incoming IRs. During the course of a shift the IRs are also responsible for washing shared linen such as tea towels.[60]
[91] Given that the laundry is performed by the crew on board the CFMMEU asserts that these areas consequently require more cleaning than other vessels where the laundry is sent ashore to be washed.[61]
[92] The Vessels each have four separate laundry areas. Two more than other Schedule One Vessels. According to Mr Knight these are cleaned and serviced daily.[62] Maersk dispute this.
[93] In his witness statement Mr Kearney initially asserted that no laundry was sent off the vessel on previous older vessels. Under cross examination he conceded that this is not correct and in fact laundry has in the past been sent off the vessels. [63]
[94] I accept that laundries which are in use are likely to require more cleaning then laundries which are not used and that multiple laundries might take longer to clean. The shared laundry, required to be performed by the IRs is an additional burden if it was not performed in the past on Schedule One vessels.
[95] I am satisfied that the laundry service and equipment is a factor supporting an increase in the catering manning level by the addition of a steward to each Vessels when the POB is 18 or less.
[96] The CFMMEU submit that the Galley on the Vessels is much larger than other Schedule One vessels requiring more time to move around and there is additional equipment not provided on other vessels which requires cleaning_.[64]_
[97] The Vessels have one Cool Room and two Freezers each. Mr Knight estimates that the Cool Room alone is an equivalent size to the combined area of the Freezers and Cool Rooms on other vessels he has worked on. Mr Knight estimates that the Galley is 3-4 times larger than on previous vessels he has worked on.[65]
[98] In his witness statement Mr Kearney says that the larger Galley and Cool Room and Freezer have minimal impact on overall workload. Mr Kearney referred to a document described as the Maersk Master - Hotel Plan and Telephone List in his written evidence.[66] This document indicated that the Scullery is cleaned on an ad hoc basis and the 2nd Freezer was not used whilst in supply mode. Mr Kearney says that the IRs are available to assist the Cook with his cleaning and catering duties.[67] Maersk also tendered a document which purported to indicate the areas not in use and/or which did not require cleaning.[68]
[99] Mr Knight says Mr Kearney is misinformed with respect to the cleaning schedule.[69] According to Mr Knight the Cool Room, Freezers, and Dry Store are cleaned daily, although Mr Knight conceded that the second Freezer may be cleaned only every two or three days when it is not in use. According to Mr Knight the Mess Area, Galley, Scullery, Bain Maries and the drinks section of the Cool Room require cleaning multiple times per day.[70] Mr Knight estimates that he spends an extra hour per day on cleaning duties due to the size of the vessel and the layout of Galley as compared to other vessels he has worked on. [71]
[100] For the reasons outlined above, including that Mr Knight is regularly rostered to work on the Vessels and either personally performs cleaning or has the opportunity to observe it being performed first hand I have accepted his evidence in preference to Mr Kearney who on his own admission has not been on board the Vessels whilst the Vessels are operational and relies for his opinions on information provided by unidentified Captains or other personnel.
[101] Mr Knight says that the IRs are not available to assist him because they have operational duties which have priority. This assertion is dealt with in greater detail below.
[102] I am satisfied that regardless of the frequency of the cleaning schedule the scale of the Galley and associated areas in the Vessels as compared to other Schedule One Vessels is significantly greater. I am not satisfied that the fact that the Vessels are currently new completely addresses the workload associated with greater surfaces areas to clean and the greater distance required to be traversed. I am therefore satisfied that the Galley layout is a factor in favour of an increase in the catering manning on the Vessels when the POB is 18 or less.
[103] The CFMMEU assert that the Vessels conduct 24 hour operations with less than 19 POB.[72] These include anchor handling, FPSO off-takes, towing and ROV operations.[73]
[104] Mr Kearney says that the Vessels are predominately in standby mode when they have less than 19 POB. He concedes that some anchor handling and continuous ROV operations may be conducted. He concedes that all anchor handling and towing is 24 hour operations but says that any ROV operations with less than 19 POB are limited to 12 hour operations.[74]
[105] To the extent that the Vessels conduct 24 hour operations then this is a factor in favour of an increase in the catering manning level. I explored with the parties the possibility that the additional catering manning associated with anchor handling and continuous ROV operations be added to the crew only for the duration of those activities however Maersk have indicated that it is not logistically and/or financially practicable to add or remove an extra Steward during a swing.[75]
[106] The CFMMEU submit that the Cook has been given additional duties on the Vessels which when combined with the larger floor area and extra equipment to clean means he is required to complete his work in his own time. The CFMMEU also submit that the IRs are required to combine too many duties with their watch keeping and cleaning regime causing them to be overworked and compromising their discharge of their operational duties.[76]
[107] According to Mr Knight his normal duties as a Cook on the Vessels are:
"i. Preparation of all food and drinks on the vessel;
ii. Stocktaking of all food, drink, cleaning supplies and other provisions;
iii. Ordering of all food, drink, cleaning supplies and other consumables used to run the vessel;
iv. Cleaning of the Galley, the Cool Room, the Freezers, the dry Store, the scullery and the bain maries in the crew mess;
v. Completion of paperwork regarding the manning on board the vessel on each day;
vi. Participate in safety drills and other onboard activities as directed; and
vii. Supervision of the steward(s) when they are on board the vessel."
[108] According to Mr Knight he cleans the Galley, Cool Room, Freezers, Scullery and daily.[77]
[109] Mr Knight also says that he spends time each day cleaning the three bain maires in the crew mess. Mr Knight says that the only other vessel that he has worked on which had bain-maires was the Maersk Nomad however he says that that vessel had two extra stewards at all times to assist with extra cleaning.[78]
[110] Mr Knight estimates that he spends an extra hour per day on cleaning duties due to the size of the Vessels and the layout of the Galley as compared to other vessels he has worked on.[79] He says that as a consequence of the additional cleaning duties he is required to undertake on the Vessels that he is reduced to undertaking his ordering and paperwork duties after hours on the Bridge in his own time, losing up to 3 hours of his rest time each day.[80]
[111] Mr Knight says that his workload has recently increased due to the introduction of a new stocktaking system as a consequence of Maersk engaging Garrets International to manage provisioning and Stores management on the Vessels. Mr Knight says that as he is required to individually weigh goods as they come on board the amount of time he now spends on stocktaking has increased from approximately 3-4 hours per swing to 20-25 hours per swing.[81]
[112] Mr Kearney says that the Garrets system has been in place for well over a year and should not result in significant extra workload for Cooks and has not done so on other vessels internationally.[82] However, under cross examination Mr Kearney conceded that he was aware that employees had reported that the stocktaking system was cumbersome.[83] An email tendered by the CFMMEU from a representative of Garretts to the Captain of the Maersk Master notes that as at 28 February 2018 the stock counting by the Cook is not sufficiently adequate and requires the Cook to begin weighing stock individually to ensure improved accuracy. In the same email the representative of Garrets estimates that the stock counting process will require 1-3 crew to complete over several days.[84]
[113] Maersk dispute Mr Knight's evidence that he is performing excessive hours of work tendering a document purporting to record the working hours of Cooks on board the Maersk Master between October 2018 and February 2019.[85] Mr Knight says that the data is incorrect. He says he did not enter the data and that it must have been entered incorrectly by someone else because he did not have a login until recently. He also identified a number of anomalies in the record of his hours of work such as the 'hours at work' and the 'hours at rest' not adding up to 24 hours as they should and the time entries being specific to the same minute for all but two 24 hour periods.[86]
[114] The balance of the cleaning, which Mr Kearney describes as the "bulk of the cleaning", is performed by the five IRs in addition to their operational duties.[87]
[115] Mr Knight says that the IRs are primarily engaged in deck/operational duties including general maintenance work such as welding, greasing, servicing, painting and chipping.[88] According to Mr Knight cleaning is considered an ancillary function IRs perform when not otherwise engaged in deck duties.[89] This is consistent with the job description for IRs which describes the duties of deck ratings when not in port as follows:[90]
"When on navigational watch keeping duties keep a lookout by sight and sound and report to the Officer of the Watch as soon as vessels, navigational marks or objects are sighted or heard.
When on bridge watch keeping duties to assist the Officer of the Watch navigate the vessel in a safe and seaman like manner.
Carry out work required by the Chief Officer in the maintenance and good housekeeping of the deck and aspects of the accommodation as maybe directed.
Under the supervision of the Chief Officer or the Officer of the Watch assist in ensuring that any cargo remains secure.
To ensure before carrying out tasks that an appropriate Permit to Work has been duly completed and a risk assessment carried out."
[116] According to Mr Knight IRs don't have sufficient time outside their operational duties to attend to cleaning or catering duties.[91] Mr Knight says that there is so much cleaning work on the Vessels that he is told by the IRs who are allocated to conduct the four hour watch at night that they spend the whole time cleaning instead of conducting their normal watch keeping duties.[92]
[117] Maersk does not agree that the IRs have insufficient time outside of their operation duties to attend to cleaning and/or catering duties. Maersk submit that as the number of IRs on board the Vessels exceeds the safe manning level determined by the Danish Maritime Authority, with whom the vessel is registered, that the operational duties of the IRs should easily be able to be performed in addition to any cleaning and maintenance duties.[93]
[118] The Danish Maritime Authority which is responsible for registering the Vessels in their flag state of Denmark has set 3 Able Bodied Seaman as the minimum safe manning level. The Vessels currently operate with five IRs and one Cook. [94] Mr Knight asserts that this is the minimum number of crew to sail the vessel from one location to another and a bigger crew is necessary when the ship is undertaking operational duties. This is consistent with the acknowledgment by Maersk that the Vessels have never been operated in Australian waters with a POB as low as that set by the Danish Maritime Authority.[95]
[119] Maersk say further that for a large proportion of the time the Vessels are on stand by and the IRs are free to assist with cleaning and catering duties. In support of this assertion Maersk tendered a document purporting to set out the nature of the activities the Maersk Master was engaged in during October 2018.[96] This indicated that only 11% of the time was spent cargo handling. Mr Knight asserted that cargo operations were not the only operational activity which occupied the IRs. According to Mr Knight during steaming (18%) there is an IR on the Bridge at all times and when at anchor (31%) and when alongside (11%) the IRs are regularly occupied for example: checking the anchor, observing the wharf operations, checking fuel and water.[97] Maersk assert that during some of these activities such as towing the IRs are required to be clear of the deck and therefore should be available to attend to cleaning duties.
[120] Maersk assert that the CFMMEU have exaggerated the amount of cleaning work which IRs are required to perform.
[121] Attached to Mr Kearney's statement was a list entitled the "IR Cleaning Schedule" which Mr Kearney says in his witness statement is displayed on Maersk Master[98] and sets out the cleaning duties the company requires IRs to perform and the frequency which the cleaning is to be performed.[99]
[122] Mr Knight conceded that the IR Cleaning Schedule is displayed on the Vessels however Mr Knight asserts that the document was prepared for the Maersk Logger and has not been updated for the Vessels. This is substantiated by the reference in the document to the cleaning of carpets.[100]
"MR WHITE: I put it to you that it is on display as the official cleaning schedule?
MR Knight: It's on display, but it's not the official cleaning schedule. As I said, this is old. I can tell by the fact that it has, "Carpets to be shampooed at the end of the swing or additionally as required." The Maersk Master and the Maersk Mariner don't have a scrap of carpet on them. This is actually off the Maersk Logger."[101]
[123] Mr Kearney conceded the Vessels do not have any carpeted areas.[102] Other discrepancies identified by Mr Knight included that only two of the four laundries were listed and that the Chief Stewards office was omitted.[103]
[124] Despite being identified by Mr Kearney as 'codifying' the cleaning duties of IRs some of aspects of the IR Cleaning Schedule are in fact inconsistent with Mr Kearney's other evidence with respect to the frequency of cleaning. For example the IR Cleaning Schedule requires on a daily basis that:
"Bridge and toilet areas to be cleaned, deck mopped"
[125] It should also be noted that the IR Cleaning Schedule does not include the cleaning of any kitchen areas primarily the responsibility of the Cook notwithstanding Mr Kearney's evidence that the IRs are available and do assist the Cook.
[126] I also note that the Agreement provides in clause 27.4 that:
"The Master will ensure that the crew living quarters, passengers' accommodation, mess Rooms. Recreation Rooms, Bathrooms and lavatories are thoroughly cleaned daily."
[127] STCW sets out the safe working requirements for all the seafarers on the Vessels. Working hours must be monitored to ensure STCW are satisfied. Maersk tendered a document purporting to record the working hours of crew on board the Maersk Master between October 2018 and February 2019 as evidence that an additional steward was not required because the crew were not performing additional hours of work.[106] Mr Knight disputed the accuracy of the data. He also asserted that the document did not reflect the amount of work which should be performed but was not being done because there was insufficient time for him and the IRs to perform it within their rostered hours of work.[107]
[128] Mr Kearney says that he is told by the Captains that they have not been approached by the crew with concerns about cleaning or fatigue management risks. Mr Kearney also says that:
"The Captain interviewed the Cook and no reference to rest hours violations or concerns about extra duties were mentioned."
[129] Mr Kearney did not identify which Captain, which Vessel or which Cook his evidence related to. Nor did Maersk call any of the Captains or Cooks to give evidence on their own account.
[130] Mr Knight disputes this. He claims that concerns about the cleaning and catering workload has been raised with both the Captains and the company at safety meetings, during general conversation and by email.[108]
[131] For the reasons outlined above, including that Mr Knight is regularly rostered to work on the Vessels and either personally performs cleaning or has the opportunity to observe it being performed first hand I have accepted his evidence in preference to Mr Kearney who on his own admission has not been on board the Vessels whilst the Vessels are operational and relies for his opinions on information provided by unidentified Captains or other personnel. Inconsistencies in Maersk evidence for example between Mr Kearney's oral and written evidence and the IR Cleaning schedule also cause me to attach greater weight to the evidence of Mr Knight.
[132] I am satisfied that the duties of employees covered by the Agreement are more complex and/or onerous on the Vessels as opposed to other comparable vessels with the same POB as a consequence of the scale and complexity of the Vessels and the tasks those employees have been directed to perform and that this weighs in favour of an extra Steward being added to the Crew of the Vessels when the POB is 18 or less.
[133] Mr Kearney gave evidence in relation to the cost of engaging another Steward and the financial impact this would have on Maersk surprisingly, as was conceded by Mr White, this is not a matter which clause 27.5(b) of the Agreement permits being taken into account when determining the catering benchmark manning for the Vessels.[109]
[134] The majority of the criteria which are required to be considered when determining the catering benchmark manning for the Vessels when the parties disagree weigh in favour of the addition of a Steward to the crew of the Vessels when the POB is 18 or less. The need for an extra Steward is most pressing when the vessel undertakes 24 hour operations. Had Maersk been able to facilitate this occurring then that could well have been the basis of an industrial resolution to this matter.
[135] Taking into account Maersk's submission that it is not logistically possible to facilitate the addition of a Steward only during 24 hour operations the weight of the criteria to be considered when determining the catering benchmark manning for the Vessels when the parties do not agree weighs in favour of the addition of a Steward to the crew of each Vessel when the POB is less than 18.
[5] For example if there are less than 9 POB then typically an IR would be responsible for catering. See Exhibit R2 at [29].
[8] Transcript at PN660-682. The scope of the dispute was narrowed at Hearing in consultation with the parties and pursuant to my powers under the Fair Work Act 2009 (Cth) s 595.
[10] Exhibit R1 and Respondent's Outline of Submissions filed on [insert date] at [1]-[13].
[11] Respondent's Outline of Submissions filed on 1 March 2019 at [10]-[12] and Respondent's Closing Submissions at [5]-[17].
[23] Respondent's Outline of Submissions filed on 1 March 2019 at [10]-[12].
[24] Respondent's Outline of Submissions filed on 1 March 2019 at [11] and Respondents Closing Submissions at [18]-[26].
[26] Respondent's Outline of Submissions filed on 1 March 2019 at [18] and Transcript at PN63-64
[34] Transcript at PN992, PN1030 and PN1183-1184.
[39] Applicant's Closing Submissions at [22].
[41] Exhibit A1 at [14] Transcript at PN 290-PN294.
[45] Exhibit A1 at Attachments JK2, 3 & 4.
[47] Exhibit A3, Transcript at PN 252, PN256-260, PN716, PN827.
[58] Exhibit A1 at [20], Transcript at PN 297-PN299.
[62] Exhibit A1 at [19], Transcript at PN256, PN260.
[63] Exhibit A1 at [19] and Transcript at PN142.
[70] Exhibit A1 at [15] and Transcript at PN211, PN236, PN260-PN276.
[74] Exhibit R2 at [41] and Transcript at PN918-928, PN1156.
[75] Respondent's Closing Submissions at [53]-[58].
[81] Exhibit A1 at [11], Transcript at PN202-PN205.
[82] Exhibit R2 at [32] and Transcript at PN746.
[85] Exhibit R2 at Attachment 12, Transcript at PN749.
[86] Transcript PN759-PN766 and PN837-PN861.
[89] Transcript at PN581-PN582 and PN600-PN602.
[93] Respondent's Closing Submissions at [31]-[40].
[94] Exhibit R2 at [24] and Attachments 4 and 5.
[95] Transcript at PN660-682 and PN802.
[99] Exhibit R2 at [38] Attachment 13.
[104] Transcript at PN1021, PN1043-1045.
[108] Transcript at PN609, PN617-PN618.
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Construction, Forestry, Maritime, Mining and Energy Union
Maersk Crewing Australia Pty Ltd [2019] FWC 1745