Fair Work Act 2009

s.739 - Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union

Svitzer Australia Pty Limited T/A Svitzer Australia

Australian Institute of Marine and Power Engineers, The

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - engagement as a permanent full-time employee - Port Operating Procedures - interaction between terms of the Agreement and amendable port-specific agreements - terms of engagement - whether the Agreement gives the employer unfettered discretion to engage workers on fixed-term contracts - inconsistency - whether terms of Port Operating Procedure are inconsistent with a term of the Agreement - whether any Port Operating Procedures actually require the employer to engage employees as permanent full-time employees.

• [1] A dispute has arisen about whether the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 prevents Svitzer from replacing permanent full-time employees with employees on fixed-term contracts in some of the 17 ports in which Svitzer operates.

• [2] Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 ("the Agreement") covers the employer, Svitzer Australia Pty Limited; covers three unions: Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union of Australia Division (MUA), The Australian Institute of Marine and Power Engineers (AIMPE), and The Australian Maritime Officers' Union (AMOU).

• [3] The Agreement allows for disputes to be referred to the Commission for conciliation and arbitration. The MUA and AIMPE referred this dispute to the Commission and the two referrals have been heard together. The AMOU has also participated in the proceedings. In this decision I will refer to the MUA, AMOU and AIMPE collectively as "the Unions."

• [4] I am satisfied that conciliation is exhausted and that I have jurisdiction to determine the matters in dispute.

• [5] The Unions are aggrieved about Svitzer's apparent policy decision to replace permanent full-time employees with fixed-term contract employees engaged for a specified period when vacancies arise.

• [6] The Unions argue that some Port Operating Procedures (POPs) do not allow Svitzer to replace permanent full-time employees with employees on fixed-term contracts because those POPs require or endorse the allocation of a certain number of crew to a particular port. For example, the POPs for Western Port provide for the allocation of 2 Permanent Full-Time crews. Each "crew" comprises of three employees and, according to the Unions, the Western Port POPs require Svitzer to employee enough permanent full-time employees on an ongoing basis to staff those permanent crews.

• [7] Unfortunately the parties could not agree on the specific question to be determined. The question posed by the MUA is:

"Is the Respondent required to fill a permanent vacancy in a role performed by a permanent full-time or permanent part-time employee in its operations at the Ports of Brisbane, Newcastle and Melbourne with a permanent full-time and permanent part-time employee respectively in accordance with the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 and the Port Operating Procedures applying in each of those Ports?"

• [8] The AIMPE and the AMOU jointly posed the following question:

"Can Svitzer engage employees for a specified period of time/task (fixed-term employees) and/or on a casual basis for the purpose of filling a vacancy in a role performed by a permanent full-time employee in its operations at the Ports of Westernport and Sydney in accordance with the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 and the respective Port Operating Procedures applying in the Port?"

• [9] Svitzer is concerned that the questions posed by the Unions carry underlying assumptions that are not agreed. Svitzer's formulation of the question is:

"Can Svitzer engage employees for a specified period of time/task (fixed-term employees) for the purpose of filling a vacancy in a full time or part time role at the Ports of Westernport, Sydney, Brisbane, Newcastle and Melbourne in accordance with the Svitzer Australia Pty Ltd National Towage Enterprise Agreement 2016?"

• [10] The Commission is not confined by the specific formulation of questions posed by the disputing parties. The subject matter and the nature of the dispute is reasonably clear to all concerned, despite the disagreement over the precise question to be determined. Like many similar matters dealt with by the Commission, the competing questions help to identify the differences between the parties.

• [11] The key provisions of the Agreement are reproduced in full in Appendix A to this decision.

• [12] The body of the Agreement regulates certain conditions of employment, including wages, allowances, leave arrangements, consultation and dispute resolution.

• [13] Clause 41 requires that Port Operating Procedures are made for each port. Each POPs must be reviewed annually and can be varied. Certain conditions must be included in each POPs, most notably for present purposes the details of rosters for each port, the number of crews on duty and crews on leave required to man the roster.

• [14] Clause 5.3 incorporates each POPs "as a term of the Agreement" but requires that the terms of the POPs must be read down to the extent of any inconsistency with any term of the Agreement.

• [15] The MUA led evidence from Mr Paul Garrett, who is the Deputy Secretary of the Sydney Divisional Branch of the MUA. Mr Garrett has participated in the negotiations for the 2009, 2010, 2013 and 2016 enterprise agreements covering the workers employed by Svitzer Australia, played a key role in the negotiations and drafting of agreements and led the negotiations for the MUA in the 2013 and 2016 enterprise agreements.

• [16] Mr Garrett said that Svitzer's use of fixed-term employees was very limited until recently, and was only for the purpose of providing relief to permanent crews rostered in accordance with the POPs. Mr Garrett was not aware of fixed-term or specific task employees being used by Svitzer to replace permanent employees until the recent set of disputes.

• [17] Mr Garrett provided an historical analysis of the various enterprise agreements that have applied, focusing upon provisions relating to fixed-term employees. Mr Garrett also said:

"In my role as Officer of the MUA and the MUA Division I participated in the negotiations for the 2009, 2010, 2013 and 2016 EBAs. During the negotiation meetings at which I was present, there was no discussion about Svitzer engaging Ratings as "fixed-term" employees in lieu of permanent employment."

• [18] When cross-examined Mr Garrett said that the issue was never of concern during negotiations because as far as he was concerned there wasn't a problem, it wasn't broken and it didn't need fixing. Of the previous negotiations Mr Garrett said:

"Clause 41.2.1(iv) of the 2016 Agreement confirms the agreement of the parties that permanent employment is the primary source of labour engaged by Svitzer in the Ports in which it operates...

During negotiations for the 2016 Agreement the clause was updated from the SVITZER Australia Pty Limited and MUA Towage Enterprise Agreement 2013 to confirm part-time arrangements and reiterate the intention of parties that permanent full-time employees are the main source of crewing.

At no time during negotiations or drafting for the 2016 Agreement in which I was involved was it discussed with or suggested by Svitzer that this clause could be overridden by a sole managerial discretion to engage fixed term contract employees to replace or in lieu of permanent full-time of permanent part-time employees."

• [19] Mr Garrett has also been involved in drafting and negotiating POPs for some time. In this regard Mr Garrett said:

"As lead negotiator for the MUA, I regularly engaged with Mr Albert Umansky (former Manager Industrial Relations - Human Resources, Svitzer Australia) who played a lead role in the negotiations for what ultimately become the Svitzer Australia Pty Limited and MUA Towage Enterprise Agreement 2016. In my time negotiating with Mr Umansky in our respective roles for the MUA and Svitzer Australia:

(i) I observed that in Port Operating Procedures, language such as "permanent", "full-time" and "permanent full-time" was interchangeable and meant the same thing...

(ii) At no time did Mr Umansky or I discuss the use 'fixed-term contracts' interchangeably with Permanent Full-Time or Permanent-Part Time employment in the POPs throughout negotiations...

(iv) During negotiations Mr Umansky and I regularly talked about setting up a template for Port Operating Procedures so there was a degree of uniformity around the various ports and consistency in language. Mr Umansky left Svitzer Australia before this was achieved."

• [20] Mr Glen Williams, Divisional Branch Secretary of the Northern NSW Branch of the MUA, provided a statement and was cross examined. Mr Williams represents the industrial interests of members of the MUA employed by Svitzer in the Port of Newcastle. Mr Williams provided a history of negotiations in relation to the Newcastle POPs. Mr Williams described how crew numbers in Newcastle have been negotiated upwards and downwards over time depending on the needs of the business, changes in market share, competition in the port and the like.

• [21] Mr Williams said that he is only aware of employees on fixed-term contracts being used in Newcastle to cover temporary absences of permanent employees. He said that when temporary vacancies arose the fixed-term contracts were only offered to part-time employees and those employees returned to their part time position at the end of the fixed-term.

• [22] Mr Jason Steen is a relief official for the MUA in Queensland and an MUA delegate for Svitzer tugs in Brisbane since 2013. Mr Steen provided a statement describing port operations and crewing levels in Brisbane. Mr Steen said that the use of fixed-term contracts in Brisbane is "incredibly rare". Mr Steen said that throughout his eighteen years employed by Svitzer, there has always existed a practice where permanent jobs are filled by permanent replacements and that in the event of prolonged leave for workers compensation or long service leave, these roles have been filled by casuals for the time required.

• [23] Mr David Ball is the Divisional Deputy Branch Secretary of the Victorian Divisional Branch of the MUA and is responsible for representing the industrial interests of MUA members employed by Svitzer at Melbourne Port and Western Port. Mr Ball said that prior to December 2021 fixed-term contracts were only used to fill short term positions in Melbourne and Western Port when a permanent employee was absent from work for a period of time for reasons such as workers compensation injury, long service leave and long-term illness.

• [24] Mr Warwick Roscoe gave evidence on behalf of the AIMPE and the AMOU. Mr Roscoe has worked for Svitzer since 1993 as an engineer and is the AIMPE delegate in the Port of Melbourne. Mr Roscoe has been involved in the negotiation of the last three Melbourne POPs, 2014, 2016 and 2020, and said he is familiar with their application and construction.

• [25] Mr Roscoe's statement included evidence regarding the filling of a vacancy in 2022 in Western Port that ultimately resulted in a retiring permanent full-time employee being replaced by a full-time employee on an 18-month fixed-term contract.

• [26] Svitzer led evidence from Ms Divya Gomes, who is the Senior People & Culture Business Partner at Svitzer. Ms Gomes said that in the Sydney ports fixed-term employees have previously been engaged to perform work traditionally performed by full time employees covering temporary absences. Ms Gomes said that in her experience such temporary replacement employees have been referred to as "permanent" employees and treated in a manner equivalent to permanent employees. Ms Gomes also attached to her statement documents exchanged during the negotiation of the Agreement in 2016.

• [27] Svitzer also relied on a statement from Ms Sarah Lacey, who is the People and Culture Business Partner for Svitzer. Ms Lacey is based in Newcastle and said that she has observed that fixed-term employees, whether employed on a part-time or full-time basis, are referred to and treated in an equivalent manner to permanent employees. Ms Lacey gave examples of such treatment. Ms Lacey collated data from Svitzer's payroll system and prepared a spreadsheet outlining the engagement of fixed-term employees from 2013 until the present.

• [28] None of Svitzer's evidence displaced or disproved the assertion in the Unions' case that prior to 2022 Svitzer has only ever utilised employees on fixed-term contracts to cover temporary absences or temporary circumstances.

• [29] Ms Gomes also provided in evidence a "Svitzer Crew Update" dated 14 June 2022 that was distributed to all staff and included the following:

"We have been made aware of concerns by colleagues that 'Svitzer will no longer offer permanent jobs. This was raised due to a recent increase in offering fixed-term positions.

I want to assure you this is not our agenda or objective. Our priority has always been and continues to be attracting and retaining the very best colleagues. We will not be able to deliver on this priority by converting all of our positions from permanent to fixed-term positions. This is what differentiates us from our competitors who only offer casual and fixed-term positions.

As you are aware, we have been going through a phase where we are monitoring the current competitive environment and we are being careful in evaluating this environment. Currently we are attempting to mitigate this risk by offering fixed-term positions in the short term. We have always maintained that this is not a long term plan.

We are committed as a management team to continuously reviewing this position closely. At this stage, we have assessed that the port of Geraldton's current risk levels are such that we are able to offer permanent positions. We will now over the next couple of months review the recruitment policy around fixed-term positions to explore the levels of risk in the rest of the ports and update the policy to be aligned with our objectives. As you can appreciate, this exercise will take some time and will always have exceptions which we will continuously consider."

• [30] Apart from the generalised reference to carefully evaluating the current competitive environment and attempting to mitigate unspecified risks, Svitzer provided no evidence of any specific reason for engaging any particular new employees in 2022 on fixed-term basis.

• [31] Whether or not the replacement of permanent employees with employees on fixed-term contracts is a long or short-term plan, the crew update has not ameliorated the Unions' concerns or resolved the questions in dispute.

• [32] The MUA argued that in clause 15 of the Agreement there are four categories of employees: permanent part-time, permanent full-time, fixed-term/fixed task and casual. The MUA say that clause 15 anticipates a distinction between the categories.

• [33] Clause 15.1 and 15.2 of the Agreement are in the following terms:

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

In accordance with clauses 15.2 to 15.6 respectively.

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."

• [34] The MUA said that words "in accordance with ... the Port Operating Procedures in the port in which the employee is engaged" support its contention that the Agreement requires the staffing complement for each port to be agreed in the POPs and that as a consequence Svitzer is required to stick to the staffing complement that is included in the POPs.

• [35] The MUA said that the POPs themselves provide for staffing complements that can only be altered by varying the POPs, and that Svitzer does not have unfettered discretion to engage employees in the types of employment categories set out in clause 15.

• [36] The MUA argued that the Agreement does not treat fixed-term employees as permanent employees. Clause 15.4 of the Agreement is in the following terms:

"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."

• [37] The MUA said that a fixed-term employee cannot be considered casual because casuals are engaged daily under the Agreement (clause 15.5).

• [38] The MUA submits that "calling fixed-termers permanents is an oxymoron" - which is an argument that requires some unpacking, particularly in the face of clause 15.4. To describe a fixed-term employee as a permanent employee is said to be an oxymoron because there could not be any permanency if the term of employment expires on the effluxion of time or task. The MUA say there is a drafting error or the use of inaccurate language within clause 15 because "it's clear that what that clause is really saying is a fixed termer is engaged on one or other of a full-time or part-time basis." The drafting of the Agreement is "not perfect" and the MUA suggest that terminology is not consistent across the Agreement - relying on the observations of Justice Gray in Shop Distributive and Allied Employees' Association v Woolworths Ltd [2006] FCA 616 at [26]:

"There is no doubt that consistency in the use of terminology, particularly defined terms, is to be valued highly in any document ... This is why there is a presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute. In statutory construction, consistency of use is no more than a presumption, and a fragile one at that ... If the presumption of consistent use of terminology is so weak in legislative drafting, it must be even weaker in the context of a Certified Agreement. Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms ... For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings."

• [39] The distinction drawn by the MUA is between a "permanent" full-time employee - which the MUA connect back to the references to permanent crews in the various POPs - and a full-time employee on a fixed-term contract, whom the MUA say is not a permanent employee and therefore cannot be assigned to a permanent crew. The MUA argue that fixed-term employees are not actually permanent employees under the Agreement and that clause 15.4 acts as a form of deeming provision that requires Svitzer to treat fixed-term employees as permanent employees even though they are not.

• [40] The MUA say that clause 15.4 ensures that fixed-term employees engaged on a full-time or a part-time basis receive the same benefits as permanent employees while engaged.

• [41] Two clauses in the Agreement - clause 24.3 - Salaries and clause 42 - Leave - transpose certain entitlements for employees engaged for a specific period of time or task so that those employees receive the same benefits as other full-time or part-time employees. Only the exclusion in clause 21.1 - Redundancy differentiates between employees engaged for a specific period of time or task and other employees. The Agreement does not otherwise differentiate between employees engaged for a specific time or task from other employees.

• [42] Some clauses differentiate between permanent employees and casual employees, including 16.1 - Recruitment, 16.5 - Security Clearance and 22.1 - Payment of Salaries. Svitzer relies on these clauses to show that fixed-term employees are permanent employees for the purposes of the Agreement. The MUA submits that there are some gaps in the Agreement and that in most cases all of the relevant terms and conditions will apply because of the deeming provision. The MUA maintains that these provisions do not make fixed-term employees permanent.

• [43] The AMOU and the AIMPE filed joint written submissions arguing that:

(a) the replacement of permanent full-time employees with fixed-term contract employees is not permissible in accordance with the POPs and the Agreement;

(b) Svitzer has breached the 2021 Sydney POPs (and other POPs) by not engaging enough permanent employees to staff the minimum crew requirements of the particular POPs; and

(c) Svitzer are now reinterpreting the POPs and undermining the integrity of the roster by seeking to replace full time engineers with engineers on 12-month fixed-term contract positions.

• [44] At the hearing the AMOU endorsed the submissions of the MUA, emphasising that the normal use of fixed-term contracts has been to cover temporary absences.

• [45] The AMOU took issue with the "Svitzer Crew Update" dated 14 June 2022, submitting that the increase in competition in some ports does not automatically change the obligations of the industrial agreement.

• [46] The AMOU submitted that the dispute is not about whether or not Svitzer can engage employees for a specified period of time or task. History has shown that Svitzer can do so and has done so. The AMOU say the dispute is about whether Svitzer can replace permanent employees with employees that are not employed as ongoing permanent employees.

• [47] The AIMPE endorsed both the MUA's submissions and the AMOU's submissions.

• [48] Svitzer argued that the POPs are a series of operating procedures that prescribe the granular operational rules for how work is to actually be done. POPs hold a unique status in the context of the Agreement because they are incorporated into the Agreement once they are made or varied and have the force of a term of the Agreement itself. In this context Svitzer said:

"By focusing the POPs conditions on granular operational matters, this prevents other more substantive employment conditions (eg. salaries, categories of employment, termination entitlements) being included in a POPs and automatically elevated to the status of EA terms capable of enforcement and capable of affecting the BOOT.

Without some constraint being placed on the matters parties can incorporate into the EA, the POPs document would have an open-ended status which sits uncomfortably with the notion of the instrument being a legislative instrument capable of both enforcement but also capable of displacing other enforceable minimum safety net instruments such as modern awards.

The status given to the POPs by the EA and the matters that POPs are empowered to deal with by clause 41.2 are important contextual considerations that should influence the construction of the POPs themselves."

• [49] Svitzer argued that clause 15.2 does not do what the Unions say it does (require the staffing complement for each port to be agreed in the POPs), but instead imposes obligations on the employee to ensure that they work as required by the Agreement and POPs.

• [50] Svitzer said that the Agreement empowers the employer to engage fixed-term employees and treat them as permanent employees, and that the Agreement does not prohibit or prevent Svitzer from replacing permanent employees with fixed-term employees.

• [51] Svitzer said that neither the Agreement nor any of the POPs specify the kind of employee that must be engaged in any particular role (at least so far as fixed-term employees are concerned).

• [52] In fact Svitzer argued that because the terms of the Agreement permit Svitzer to engage employees in any of the four stated categories, any term of any POPs that restricts the broad discretion conferred by the Agreement would be inconsistent with the Agreement and therefore have no effect (per clause 5.3). If any of the POPs operated in the way that the Unions say they do, the POPs would take a discretion away from the employer that has been granted by clause 15.1 of the Agreement and therefore be inconsistent.

• [53] Relatedly, Svitzer argued that the Agreement does not empower the parties to specify the engagement status of employees in POPs. By this reasoning any provision of a POPs which deals with the subject matter of engagement status is not a valid POPs provision.

• [54] In any event, Svitzer said, the disputed POPs do not contain any terms prohibiting the engagement of employees to perform work on a fixed-term basis.

• [55] Alternatively, if any provision in a POP could be construed as prohibiting the engagement of employees on a fixed-term basis:

(a) such a terms would be inconsistent with clause 15.1 of the Agreement; and > > (b) to the extent that the term mandates full-time employment, the term is a discriminatory term inconsistent with s.194 and s.195 of the Fair Work Act 2009 (Cth) (FW Act).

• [56] Svitzer argued that clause 15.4.1 allows fixed-term employees to form part of the broader category of permanent full-time or permanent part-time workers, save that the fixed-term employees are engaged for a limited period. This construction is reinforced by the many other provisions of the Agreement that treat the two categories of employees interchangeably:

(a) clause 16 - Selection and Recruitment; > > (b) clause 16.5 - Security Clearance for Duty; > > (c) clause 20 - Notice of Termination; > > (d) clause 22.1 - Payment of Salaries; > > (e) clause 28 - Industrial and Protective Clothing; > > (f) clause 29.1 - Mobile Telephones (personal communications device); > > (g) clause 41.2.7 - Relief Arrangements; and > > (h) clause 44 - Personal/Carer's Leave.

• [57] Svitzer relies on a superficial inconsistency within the Unions' argument: the Unions argue that each POPs requires Svitzer to engage permanent ongoing employees but at the same time submit that fixed-term employees or even casual employees can be engaged to fill temporary gaps. In closing submissions Svitzer argued:

"... The union have this glorious set of rules that they have made up, that a fixed term employee can be used for worker's comp and for long service leave and for new projects, mind you. A new project not, on its face involve replacing someone. They've come up with all these different reasons that are permissible, and the question you've posited, almost helps this inference. Well, maybe the unions will also accept it, if it was a short term, because the contract expires in three months.

But the POPs talk to none of this. They do not talk to subjective intention for a particular engagement. The POPs say you need 15 full time crew in Sydney. They say you need 32 permanent full time in Newcastle. Whether a fixed term of casual is permitted there or not, they either are or they aren't. Because the union is trying to grapple with this notion that it wants to treat that as that prohibition, it's now striving to find ways as to how casuals and fixed termers can actually be engaged. But it's all fictitious. Nowhere in any of these POPs does it talk about you can have a casual, and remember, this isn't just about fixed termers at all. All of these principles apply to casuals."

• [58] Svitzer also argued that if any POPs does in fact mandate the engagement of permanent full-time employees, those provisions have the effect of indirectly discriminating against persons with attributes protected by discrimination law - being carers and females. Carers and females have been regularly found by the Courts and tribunals operating in anti-discrimination jurisdictions to be more likely to require periods of part-time work and the imposition of an obligation to work full-time is indirectly discriminatory against such groups.

• [59] Discriminatory terms are deemed unlawful terms by section 194 of the FW Act and have no effect, pursuant to section 253 of the FW Act.

• [60] The parties agree that the principles in AMWU v Berri Pty Limited [2017] FWCFB 3005; (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [114] apply to the process of interpreting the Agreement as well as the POPs (see also AIMPE v Svitzer Australia Pty Ltd [2018] FWC 4667 at [65]).

• [61] I will deal with the matters in dispute by firstly making some observations on the schema of the Agreement and the POPs and then consider the following matters:

(a) whether clause 15.1 of the Agreement gives Svitzer an unfettered right to decide the basis upon which each employee is engaged; > > (b) whether POPs can contain terms that fetter Svitzer's capacity to decide the basis upon which each employee is engaged; > > (c) whether employees on fixed-term contracts are permanent full-time employees or not; > > (d) whether any of the POPs in fact do limit Svitzer's capacity to decide the basis upon which fixed-term employees can be engaged; and > > (e) whether any such terms are rendered unlawful and of no effect because of s.253.

Consideration: The schema of the Agreement and the POPs

• [62] Just like any other enterprise agreement, the Agreement sets the boundaries within which Svitzer can organise its workforce. The Agreement sets the minimum conditions that Svitzer must observe and gives Svitzer discretion to organise its workforce in the most efficient or effective way it wants to, so long as it stays within those boundaries.

• [63] The dispute concerns rostering and staffing. The following aspects of the Agreement are not controversial:

(a) the Agreement requires there to be a set of POPs in each port (clause 41.1); > > (b) the terms of any specific POPs are incorporated as a term of the Agreement for the particular port concerned (clause 5.3.1); > > (c) the Agreement prevails over applicable POPs, which have no effect to the extent of any inconsistency with any term of the Agreement (clause 5.3.1); > > (d) each POPs must set out details in respect of certain aspects of port rosters (clause 41.2.1); > > (e) the Agreement provides for four different "employment categories" (clause 15.1), being: > > 1. full-time employment (clause 15.2); > 2. permanent part-time employment (clause 15.3); > 3. employment for a specified period of time or specified task (clause 15.4); and > 4. casual employment (clause 15.5).

• [64] To understand the context in which the dispute must be resolved it is helpful to note the following aspects of the schema of the Agreement:

(a) the Agreement applies nationally in 17 ports; > > (b) some terms and conditions are universal across all ports, are contained in the Agreement itself and cannot be altered by the terms of a POPs; > > (c) the boundary between matters regulated in the body of the Agreement and matters regulated by individual POPs was carefully drawn, presumably to ensure that: > > 1. core matters are quarantined in the Agreement so that all parties can keep the terms and conditions (and flexibilities and productivity improvements) that they bargained for; and > 2. port-specific matters can be negotiated and implemented to suit local conditions (within certain limits), and can be altered during the life of the Agreement to accommodate changes in the local conditions; > > (d) the types of matters that can and must be included in the POPs were carefully identified to ensure that particular matters were dealt with, being the matters mandated in clause 41 that were intentionally omitted from the body of the Agreement; and > > (e) clause 41 of the Agreement sets some parameters within which the terms of the particular POPs must stay.

• [65] It is also important to note that each disputed POPs refers to the rostering of "crews". Each "crew" consists of three workers. The POPs rarely refer to individual employees or specific types of employees. The POPs for the ports listed above refer to the following kinds of crews:

(a) full time crews; > > (b) permanent full-time (100%) crews; > > (c) permanent part-time crews; > > (d) leave in running (LIR) crews; > > (e) primary crews, including early primary crews and late primary crews; > > (f) flexible crews; > > (g) duty crews; > > (h) relief crews; > > (i) captive crews; > > (j) non-captive crews; > > (k) rostered off crews; and > > (l) scratch crews.

Consideration: Fettered rights regarding engagement(?)

• [66] Clause 15 is central to the dispute.

• [67] Clause 15.1 is permissive insofar as it makes each option available to Svitzer - which is not necessarily the same thing as conferring unlimited discretion on Svitzer to employer workers on any basis.

• [68] I agree with Svitzer that clause 15.1 permits the engagement of employees in any of the four categories listed, but I do not agree that the terms of clause 15.1 result in Svitzer's choice being unfettered.

• [69] The mode of engagement is one aspect of employment regulated by the Agreement. Other conditions of employment are determined by other parts of the Agreement, the obvious example being remuneration. When potential overlaps or inconsistencies arise in agreements, sometimes the agreement itself will include terms to resolve such difficulties. Expressions such as "despite any other term in this agreement ..." and "subject to any other term in this agreement" are often used to identify dominant provisions and subordinate provisions.

• [70] Clause 15.1 does not include any indication that it applies to the exclusion of all other provisions. The absence of such words is not fatal to Svitzer's argument, but it leaves open the possibility that other provisions of the Agreement could overlap with clause 15.1 and could fetter the way in which clause 15.1 applies.

• [71] In fact there is an express fetter within clause 15 itself relating to part-time conversion and a potential fetter in clause 41 in relation to POPs (see below).

• [72] Clause 15.3.4 requires Svitzer to convert part-time employees to full-time employment in certain circumstances, which is a fairly straightforward fetter. Clause 15.3.4(iv) allows Svitzer to refuse an employee's election to convert to full-time, but "must not unreasonably so refuse." In other words Svitzer is required to convert a person whom it chose to engage as a permanent part-time employee to permanent full-time (in certain circumstances) unless there is a reasonable basis to refuse the employee's election.

• [73] I also note that Clause 16 - Selection and Recruitment closely regulates the recruitment process for permanent employees and casual employees. However I do not understand clause 16 to impact upon Svitzer's discretion to engage employees on a permanent or a casual basis despite its terms being quite detailed. That is, clause 16 appears to operate once Svitzer has decided to recruit a permanent employee (see for example clause 16.1.1(i)) or has decided to recruit a casual employee.

• [74] As such, even though clause 15.1 does allow Svitzer to engage employees on particular terms, it does not give Svitzer an unfettered right to choose the basis upon which each employee is engaged. The terms of clause 15.1 allow for the possibility that other provisions in the Agreement could impose limitations, conditions or fetters on Svitzer's choice.

Consideration: Can POPs contain terms that fetter clause 15.1

• [75] The next consideration is whether it is possible that a term in a POPs, as opposed to a term of the Agreement, could have this effect.

• [76] Clause 15.1 must be considered in conjunction with clauses 5.3 and 41.2.

• [77] Clause 41.2 requires that certain matters be included in each POPs, including "details in respect of" port rosters. Clause 41.2.1(ii) says

"41.2 The Port Operating Procedures (when made or varied) will set out details in respect of the following subject matter, which provide a foundation for the guidance to the parties in developing Port Operating Procedures:

(ii) rosters will as far as practicable include the detail of work days, the component of predictable leave days, and the number of crews on duty and on leave required to man the roster;"

• [78] Because of clause 5.3, any term of a POPs that is inconsistent with a term of the Agreement has "no effect" to the extent of the inconsistency.

• [79] By its very nature a "roster" sets out the pattern of work over a period of time. Clause 41 contemplates POPs and rosters being reviewed annually, which necessarily implies a roster arrangement that can apply over the course of a year without updates or alterations (in contrast to casual work), and also a roster arrangement that will continue in perpetuity for more than one year if it is not altered (in contrast to fixed-term employment).

• [80] Clause 41.2.1(ii) also requires that the details of "the number of crews on duty and on leave required to man the roster" be included in the POPs as far as practicable.

• [81] On Svitzer's interpretation, any term of a POPs that impinges upon Svitzer's unfettered right under clause 15.1 is inconsistent with clause 15.1 and of no effect. Extending this logic one step further in light of clause 41.2.1(ii), if Svitzer is correct each POPs must set the details of the roster but must not do so in a way that would restrict the basis upon which employees might be engaged to fill that roster.

• [82] I do not agree with Svitzer's construction.

• [83] The specific requirements in clause 41 create the distinct possibility that a roster detailed in a POPs, including a roster that specifies the number of crews working and on leave "required to man the roster", could impinge upon Svitzer's discretion to engage a certain number of employees of a particular type.

• [84] The Agreement is a bargain between the parties. One part of the bargain is that Svitzer has the option of engaging workers on a permanent full-time, permanent part-time, or casual basis, or for a specific period or time or task. Another part of the bargain is that the details of rosters must be contained within the POPs, reviewed annually, are changeable but not easily changeable, and are binding on the parties "as a term of [the] Agreement."

• [85] This bargain cuts both ways: workers have a say in relation to the details of the roster in their own port however there are only limited ways in which rosters can be changed once they are set.

• [86] Even though there are no limitations in clause 15.1 on how any particular employee is to be engaged, Svitzer (and the workers and the Unions) agreed in their bargain that both clause 15.1 and clause 41.2.1(ii) will apply.

• [87] When clauses 15.1 and 41.2.1(ii) are read together it would not be inconsistent with the terms of the Agreement for a POPs to impinge upon or fetter Svitzer's options under clause 15.1. I also note in this regard that clause 15.2 specifically refers to the POPs.

• [88] For these reasons, POPs made under Clause 41 can be an agreed potential fetter upon clause 15.1 without the resulting POPs being inconsistent with a term of the Agreement. Clause 41 is a "potential" fetter because it is possible, but not essential, that the terms of any particular POPs impinge upon clause 15.1.

• [89] Therefore, it is possible and permissible for POPs to specify that certain places or positions in a roster must be occupied or filled by certain types of employees.

Consideration: are employees on fixed-term contracts permanent full-time employees?

• [90] The MUA argue that fixed-term employees are not actually permanent employees under the Agreement and that clause 15.4 only acts as a form of deeming provision that requires Svitzer to treat fixed-term employees as permanent employees even though they are not. This construction is the foundation for the MUA's proposition that fixed-term employees cannot be deployed to permanent crews to satisfy the requirements found in many POPs.

• [91] I do not accept the MUA's underpinning construction. Clause 15.4.1 says:

"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."

• [92] Two clauses in the Agreement - clause 24.3 - Salaries and clause 42 - Leave - transpose certain entitlements for employees engaged for a specific period of time or task so that those employees receive the same benefits as other full-time or part-time employees. Only the exclusion in clause 21.1 - Redundancy differentiates between employees engaged for a specific period of time or task and other employees. The Agreement does not otherwise differentiate between employees engaged for a specific time or task from other employees.

• [93] The balance of the Agreement distinguishes between "permanent" employees and "casual" employees for certain entitlements - which is consistent with fixed-term employees being permanent employees rather than casual employees.

• [94] The ordinary meaning of the words in clause 15.4 are straightforward: fixed-term employees are to receive all the same entitlements as permanent employees (necessarily modified by clauses 24.3, 42 and 21.1) because they are permanent employees.

• [95] Calling fixed-term employees 'permanent' is not an oxymoron in the context of the Agreement. The Agreement confers certain entitlements on "permanent" employees that take their character from the fact that the employment is ongoing beyond a single day. Annual leave and personal/carer's leave are the obvious examples - the entitlements are dependent upon the employment being ongoing.

• [96] Even though there is an end date to the fixed-term employment, the employment is ongoing (for the purposes of entitlements such as annual leave and carers leave) during the term of the employment.

Consideration: Do any disputed POPs contain terms that fetter clause 15.1 in relation to fixed-term employees?

• [97] Each disputed POPs refers to either "permanent crews" (Brisbane, Newcastle and Melbourne) or "full time crews" (Sydney and Western Port).

• [98] As the Full Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536, [2018] FCAFC 131 summarised at [197]:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "turns on the language of the particular agreement, understood in the light of its industrial context and purpose." The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced."

• [99] The framers of each POPs can be assumed to be of a "practical bent of mind". Each port is staffed by permanent full-time employees engaged on an ongoing basis, as well as a mixture of some part-time permanent employees, casual employees and fixed-term employees filling temporary gaps. As clause 41.2.1(iv) says: "permanent full-time employees are the main source of crewing the port roster and permanent part-time employees supplement the roster."

• [100] It seems reasonably clear to me that when each of the contested POPs was drafted or reviewed, and places in the port roster were set for permanent crews or full-time crews, the intention was that in the ordinary course of staffing the roster, those places would be filled by permanent full-time employees unless the POPs specified terms to the contrary. Employees engaged in this way have been the "main source" of crewing and the likely expectation was that they would continue to be the main source unless particular circumstances arose that required a different approach.

• [101] However more is required to answer the matters presently in dispute. Clause 15 allows Svitzer to engage some employees on fixed-term contracts and count those employees as full-time or part-time permanent employees.

• [102] In the past Svitzer has used fixed-term employees to fill temporary gaps. This is logical and uncontroversial. When permanent employees take leave (paid or unpaid) that is not already built into the roster, the resulting gap must be filled. Using fixed-term employees for longer absences, and even casual employees for shorter absences, does not place Svitzer in breach of its POPs.

• [103] Svitzer's core argument on this point is that when a POPs sets places in a roster for permanent or full-time crews without further specification, the POPs leaves open the possibility that those places can be filled by employees engaged on a fixed-term basis as long as those employees are employed as "permanent" employees or "full-time" employees.

• [104] Each POPs obviously operates in conjunction with the Agreement and must be read in that context.

• [105] As discussed above, the Agreement differentiates between permanent employees and casual employees. Within the category of permanent employees there are several possible variants. Employees engaged for a specified period of time are, by necessity under clause 15.4, engaged on a permanent basis. As a result there are at least two kinds of full-time permanent employee described in clause 15: those who are engaged for a specified time and those who are not.

• [106] It is implicit in the Unions' argument that there is some limitation within the Agreement that employees can only be engaged on a fixed-term basis when there is an identifiable legitimate basis for doing so. Clause 15.4 of the Agreement refers to "an employee engaged for a specified period of time or a specified task". Implicit in the notion of engaging an employee for a specified period of time or task is that there be some connection between the basis of the engagement and the period of time or the specified task.

• [107] Another way of understanding the present dispute is to see that the Unions' objection to Svitzer using fixed-term employees to fill permanent ongoing vacancies arises because they consider the basis or reason for engaging fixed-term employees (or connection between the basis of the engagement and the period of time or the specified task) is not legitimate.

• [108] I do not agree that this limitation must be read into clause 15 of the Agreement or the POPs.

• [109] Firstly, in the particular context of each POPS being reviewed annually under clause 41 of the Agreement, these kinds of matters (the appropriateness or legitimacy of using fixed-term employees) would ordinarily be addressed in the POPs themselves. For example the Sydney POPs allows certain fixed-term crews/employees to cater for specified new work obtained by Svitzer.

• [110] Secondly, if the bargain between the parties contained limitations on the engagement of fixed-term employees (such as to fill temporary gaps) then those limitations would have been included in the Agreement itself, if not in the terms of particular POPs.

• [111] The Agreement and the POPs set the boundaries within which Svitzer can organise its workforce. If a POPs does not specify which kind of permanent employee or which kind of full-time employee can be used to fill a particular roster, then Svitzer can choose for itself.

• [112] To determine whether the disputed POPs do impinge upon Svitzer's discretion to engage employees under clause 15, each disputed POPs must be considered separately.

• [113] The key relevant terms in the Sydney POPs are:

"Clause 1: Current Crewing Compliment: 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..."

• [114] The Sydney POPs also contain specific arrangements for 2 additional crews to be engaged on a fixed-term basis to service a particular contract.

• [115] The Sydney POPs does not contain a fetter on how Svitzer can staff its 15 full-time crews (or part-time job-share equivalents). So long as Svitzer engages full-time employees, or part-time employees to staff the 15 full-time crews, it is open for Svitzer to engage those full-time or part-time employees on fixed-term contracts.

• [116] The Newcastle POPs contain a roster described as "32 Full-Time Crew / 12 hour / 9 tug Roster" and includes the following:

"The following permanents will be employed in Newcastle

• ➢ Masters: 32
• ➢ Engineers: 32
• ➢ GPH: 32

• ➢ Masters: 4 @ 75% minimum guarantee of full time salary

• ➢ Engineers: 4 @ 75% minimum guarantee of full time salary

• ➢ GPH: 4 @ 75% minimum guarantee of full time salary

• ❖ Any changes to PPT manning will be agreed to by Management and Delegates."

• [117] The Newcastle POPs does not contain a fetter on how Svitzer can staff its 32 full-time crew. So long as Svitzer engages full-time employees, or part-time employees to meet these requirements, it is open for Svitzer to engage those full-time or part-time employees on fixed-term contracts.

• [118] The Western Port POPs is similar but slightly different to the Sydney POPs. It refers to a total number of two "permanent full-time crew (100%)" and says "the rosters will allocate 2 full time crews to Western Port".

• [119] So long as Svitzer engages permanent full-time employees to staff the 2 full-time crews in Westernport, it is open for Svitzer to engage those full-time employees on fixed-term contracts.

POPs with specific limitations on fixed-term employment: Brisbane

• [120] Two particular POPs, Brisbane and Melbourne, contain more specific limitations on the use of fixed-term employees.

• [121] The Brisbane POPs contains a roster for 15.38 permanent crews and includes the following:

1. To enable the permanent and fixed term employees to receive their leave entitlements in the EA, a suitable number of permanent and fixed term employees shall be engaged. The number of crews on duty and on leave required to man the current roster includes;

1. 15 Rostered Permanent full-time equivalent and 1 Rostered Permanent Part Time 0.38 Masters
2. 15 Rostered Permanent full-time equivalent and 1 Rostered Permanent Part Time 0.38 Engineers
3. 15 Rostered Permanent full-time equivalent and 1 Rostered Permanent Part Time 0.38 Integrated Ratings

1. Additional fixed term employees may be engaged from time to time to supplement permanent employees to provide relief as necessary.

1. A data base of casual employees will also be utilised to supplement the workforce when required.

1. To meet the operational requirements (including trials) in the port, the rostered permanent crews may be supplemented with permanent part-time and/or fixed term employees as necessary.

v. A 15.38 crew roster is contained in Schedule A."

• [122] The first thing to note about this part of the Brisbane POPs is that it squarely refers to particular types of employees as opposed to types of crews.

• [123] The reference to "a suitable number of permanent and fixed term employees shall be engaged" in 1(b)(i) suggests that the framers are referring to two different types of employees. The references to "permanent employees" in this regard are references to employees who have ongoing employment and who are not engaged for a specified time or task.

• [124] The most cohesive interpretation of these provisions is that sub-paragraphs 1, 2 and 3 of 1(b)(i) specify the number of "permanent" employees (which does not include fixed term employees) and sub-paragraphs 1(b)(ii) and 1(b)(iv) specify how "fixed term employees" can be used.

• [125] These provisions in the Brisbane POPs place a fetter upon how Svitzer can engage employees on a fixed-term basis.

• [126] The effect of sub-paragraphs 1(b)(ii) and 1(b)(iv) are that fixed-term employees can only be used to "supplement" permanent employees in order to provide "relief as necessary" under sub-clause 1(b)(ii)) or "to meet operational requirements (including trials)" under sub-clause 1(b)(iv).

POPs with specific limitations on fixed-term employment: Melbourne

• [127] The Melbourne POPs contains the following table:

• [128] "PFT Crews" is defined in the Melbourne POPs to mean "permanent full-time crews employed under clause 15.2 of the EA". "PPT Crews" is defined to mean "permanent part-time crews at the nominated percentage, employed under clause 15.3 of the EA".

• [129] Putting aside the blending of crews and employees terminology, the references to clause 15.2 and 15.3 in the definitions of PFT Crews and PPT Crews are clear indications that the crews referred to in the table cannot be staffed by fixed-term employees who are engaged under clause 15.4 of the Agreement. As discussed above, a fixed-term employee engaged under clause 15.4 can only be employed on a permanent full-time basis or a permanent part-time basis, meaning there is a degree of overlap between engagement under clause 15.4 and clause 15.2 / 15.3.

• [130] If the intention of the Melbourne POPs was to include fixed-term employees in PFT Crews or PPT Crews then the respective definitions would have included a reference to clause 15.4 alongside the reference to clause 15.2 or 15.3.

• [131] As such, in setting the details of the rosters for the Port of Melbourne, the Melbourne POPs places a fetter on the number and type of employees Svitzer can engage to fill the roster.

Consideration: section 253 and discriminatory terms

• [132] One final argument must be dealt with. Svitzer argued that if the Agreement or any POPs are understood to mandate the engagement of permanent full-time employees then such provisions have the effect of indirectly discriminating against persons with attributes protected by discrimination law. Svitzer said:

"This is because both carers and females have been regularly found by the Courts and tribunals operating in anti-discrimination jurisdictions to be more likely to require periods of part time work. Therefore, the imposition of an obligation to work full time is indirectly discriminatory against such groups."

• [133] Discriminatory terms are deemed unlawful terms by sections 194 and 195 of the FW Act and have no effect to the extent they are discriminatory, per s.253 of the FW Act.

• [134] I am inclined to the same view as the Full Bench in The Hon. Christian Porter MP A-G v MFESB; United Firefighters' Union of Australia [2019] FWCFB 6255 at [67]- [73] that s.195 does not incorporate notions of indirect discrimination. In that matter the Minister did not attempt independently to demonstrate that a requirement in question would constitute unreasonable indirect discrimination and the Full Bench regarded the point as moot. As such the Full Bench's comments are obiter, albeit helpful obiter.

• [135] The subject matter of the dispute relates to Svitzer's decision to replace one type of full-time employee with another type of full-time employee.

• [136] All but one of the disputed POPs (Brisbane, Newcastle, Sydney and Melbourne) allow job-share arrangements and/or part-time work and/or refer to "full-time equivalent" crews. Western Port appears to be a much smaller port, allocating only 1 duty crew to work on any particular shift. There is no suggestion that the requirement that the two crews allocated to Western Port be permanent full-time crews is unreasonable.

• [137] Svitzer does not argue that any employee covered by the agreement has been discriminated against because of, or for reasons including their carer responsibilities or their sex because of any particular requirement for full-time employment.

• [138] There is no suggestion that any of the requirements in any of Svitzer's POPs are not reasonable.

• [139] On the state of the evidence there is no actual indirect discriminatory impact or effect for any such POPs. The point is similarly moot in this current dispute.

• [140] In my view, even if it could be found in particular circumstances that a particular provision in a POPs is discriminatory, the Agreement (and the relevant POPs) must only read down "to the extent that it is an unlawful term" under s.253 of the FW Act. No more needs to be said of this point.

• [141] The above findings can be summarised as follows:

(a) clause 15.1 does not give Svitzer an unfettered right to decide the basis upon which each employee is engaged; > > (b) particular POPs are able to contain terms that fetter Svitzer's capacity to decide the basis upon which each employee is engaged without such terms being inconsistent with clause 15; > > (c) where particular POPs set rosters for "permanent crews" or "full-time crews" without further specification, then Svitzer is at liberty to fill those places with employees who are permanent employees but who are engaged for a specified period of time. The current POPs for Newcastle, Sydney and Western Port fall into this category; > > (d) if a particular POPs sets limitations on the use of fixed-term employees, such as Brisbane and Melbourne, then Svitzer's discretion is otherwise fettered by those limitations; and > > (e) Svitzer has not established any basis upon which any of the dispute POPs could or must be read down under s.253 of the FW Act.

• [142] Finally, having reached the above conclusions on the terms of the Agreement and the disputed POPS, I will answer the specific questions posed by the parties. For the question posed by the MUA:

Q: Is the Respondent required to fill a permanent vacancy in a role performed by a permanent full-time or permanent part-time employee in its operations at the Ports of Brisbane, Newcastle and Melbourne with a permanent full-time and permanent part-time employee respectively in accordance with the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 and the Port Operating Procedures applying in each of those Ports?

A: In Brisbane Svitzer is required to replace a "permanent employee" referred to in clause 1(b) of the Brisbane POPs with another "permanent employee" and cannot replace them with a fixed-term employee.

In Melbourne Svitzer is required to fill a vacancy in a role performed by a permanent full-time employee engaged under clause 15.2 (but not clause 15.4) or a permanent part-time employee employed under clause 15.3 (but not clause 15.4) with an employee employed under clause 15.2 or 15.3 as the case may be, but cannot use an employee engaged under clause 15.4.

Yes in the other disputed ports (Newcastle, Sydney and Western Port) and Svitzer can use fixed term employees engaged as permanent employees under clause 15.4.

• [143] For the question posed by The AIMPE and the AMOU:

Q: Can Svitzer engage employees for a specified period of time/task (fixed-term employees) and/or on a casual basis for the purpose of filling a vacancy in a role performed by a permanent full-time employee in its operations at the Ports of Westernport and Sydney in accordance with the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 and the respective Port Operating Procedures applying in the Port?

A: Yes, in relation to the use of fixed-term employees, and no in relation to the use of casual employees.

Q: Can Svitzer engage employees for a specified period of time/task (fixed-term employees) for the purpose of filling a vacancy in a full time or part time role at the Ports of Westernport, Sydney, Brisbane, Newcastle and Melbourne in accordance with the Svitzer Australia Pty Ltd National Towage Enterprise Agreement 2016?

A: Yes in Newcastle, Sydney and Westernport. No in Melbourne and no in Brisbane (assuming the vacancy is for a "permanent employee" referred to in clause 1(b) of the POPs).

Mr N Niven for The Australian Institute of Marine and Power Engineers

Mr J Moran for The Australian Maritime Officers' Union

Mr A Neal of Counsel with Ms W Carr for the Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union of Australia Division

Printed by authority of the Commonwealth Government Printer

5.3.1 The POPs are incorporated as a term of this Agreement for the particular Port concerned. However, this Agreement prevails over applicable Port Operating Procedures, which have no effect to the extent of any inconsistency with any term of this Agreement.

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

In accordance with clauses 15.2 to 15.6 respectively.

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

(iv) the category of employment In which the person Is employed and

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

(vi) 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, a part time employee receives, on a pro­rata 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 annum. (For example, an employee who is engaged in a 50% permanent part-time role will be required to work at least 91 days per annum.)

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.

(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 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.

15.3.4 Conversion of permanent part-time employment to permanent full-time employment

(i) This clause 15.3.4 commences operation on 1 January 2017.

(ii) If a permanent part-time employee worked, on average, at least the number of days ordinarily worked by a full-time employee (100%} annually, the employee may make an election to convert their employment to full-time employment, if the employment is to continue beyond the conversion process, In accordance with this clause 15.3.4.

Note: Conversion to full-time employment under this clause 15.3.4 does not guarantee predictable rostered leave.

1. For permanent part-time employees who were in permanent part-time employment on the Commencement Date: on 1 January 2017 for 2017, and after 2017, annually on the employee's anniversary date; or

1. For permanent part-time employees not covered by paragraph A: on the employee's anniversary date.

1. A permanent part-time employee, who has met the requirements in paragraph (ii), may provide Svitzer with written notice electing to convert their contract of employment to full­ time employment within four (4) weeks after the date specified in paragraph (iii).

1. Within four (4) weeks of receiving such notice the Company must consent to or refuse the election but must not unreasonably so refuse.

1. Once a permanent part-time employee has elected to become and been converted to a full-time employee, the employee may only revert to permanent part-time employment by written agreement between Svitzer and the employee.

1. An employee must not be engaged and re-engaged to avoid any obligation under this clause 15.3.4.

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.

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

(i) Subject to clause 15.5.2(11), 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 clause 24.5.

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 clauses 15,2 to 15,5 above. However, there is no implied right for Trainees to be so engaged.

41.1 There will be a set of Port Operating Procedures In each port. Port Operating Procedures must be reviewed at least annually. Svitzer will prepare and distribute to the Unions a report on the status of the Port Operating Procedures by 31 March. Subject to clause 41.4, the annual review must be completed by 30 April. Following the review Svitzer will prepare another status report by 14 May.

41.2 The Port Operating Procedures (when made or varied) will set out details in respect of the following subject matter, which provide a foundation for the guidance to the parties in developing Port Operating Procedures:

(i) Towage operations are carried out over 24 hours per day on every day of the year;

(ii) rosters will as far as practicable include the detail of work days, the component of predictable leave days, and the number of crews on duty and on leave required to man the roster;

(iii) Off-duty periods for permanent full-time employees:

1. leave for permanent full-time employees should to the greatest practical extent be predictable;

1. leave in running arrangements may be Implemented where it is impracticable to predict leave periods to their full extent or (notwithstanding clause 15.2.1) when an employee's employment is converted to full-time employment under clause 15.3.4.

(iv) Off-duty periods for permanent part-time employees:

Permanent full-time employees are the main source of crewing the port roster and permanent part-time employees supplement the roster.

Where a port cannot support a roster for permanent part-time employees, off-duty periods will be programmed as follows:

1. Permanent part-time employees may nominate to take seven (7) days free of duty each month (non-cumulative); or

1. Permanent part-time employees Instead may make an annual election to take five (5) days free of duty each month (non-cumulative) PLUS one off-duty period of 25 days, amounting to a "30 day block-out duty free period" per calendar year. Where agreement between Svitzer and the employee is not possible on the programming of the "30 day block-out duty free period":

• the employee must give the Company 3 months' notice of their requested nominated "30 day block-out duty free period"; and
• Svitzer must not unreasonably refuse the employee's request.

Permanent part-time employees must otherwise be available for relief work duty in accordance with clause 41.2.7(i)A.

(i) should include details of the procedures to be used for the giving, receipt and acknowledgement of work orders;

(ii) SMS messages may be used to communicate orders for the purpose of minimising off-duty disruption to employees;

(iii) Employees should not be contacted unnecessarily during breaks.

The objective of any duty roster is to ensure that sufficient employees are available at any time to satisfy customers' requirements on no more than 2 hours notice, unless the Port Operating Procedures specify otherwise to meet those requirements.

41.2.4 Hours of work, regular duty requirements and off-duty periods

(i) Scheduled hours of work should not exceed 12 hours. That Is:

1. under the Port Operating Procedures, the last towage job in a period of continuous duty must not be scheduled more than 11 hours and 45 minutes after that period has commenced; and

1. jobs commenced prior to the 12th hour shall be completed.

The parameters for scheduling the last job in the period must be set out in the Port Operating Procedures.

(ii) If an employee is required to be on continuous duty for 14 hours or more, the employee must be given a rest break of 10 hours at the cessation of that period of duty before the commencement of the next period of duty.

(iii) A period of continuous duty must not exceed 16 hours.

(iv) A nominated rest break of 6 hours or more breaks the continuity of a period of duty.

(v) Employees will be entitled to a meal break on completion of 5 hours' duty. For the avoidance of doubt meal breaks must not be taken in a manner or at a time that would interrupt port operations.

41.2.5 Employees must not work more than 14 days in excess of the number of days a full-time employee is required to work in a calendar year under the operating roster in the port (Maximum Days). For the purpose of this clause 41.2.5, the following days will be disregarded in calculating the Maximum Days:

• Work days when the employee does not perform ship-assist operations on a tug boat In any port (harbour towage);
• days when an employee attends shoreside meetings;
• Outside Work days;
• days attending emergencies, and
• days undertaking docking work.

41.2.6 The parties will keep fatigue management and the operation of the roster under review in each port, through the local Work Health and Safety committee, so as to ensure the proper and efficient management of fatigue. Because of the unpredictability of vessel movements the strict application of the STCW Code as above may not always be possible, however, an employee must be provided with minimum aggregate rest of 77 hours in 7 days consistently with Marine Orders Part 28, section 4.

41.2.7 Relief arrangements to be utilised in the Port and casual usage.

(i) Relief work requirements to supplement the roster will usually be covered:

1. first call-permanent part-time employees {other than during an off-duty period pursuant to clause 41.2.1(iv), or when they are otherwise unavailable under this Agreement);

1. third call - permanent full-time employees on rostered leave.

(ii) Permanent full-time employees on rostered leave are not obliged to be available for relief work, however subject to clause 41.2.5, every employee and the Unions will ensure that, under normal circumstances as described in the Port Operating Procedures, the port operations are not compromised by unavailability of relief personnel to cover short term or unplanned absences.

The incidence of relief days, measured over a representative period (say 6 months), shall be reviewed in conjunction with the annual review of the Port Operating Procedures.

41.2.8 Other issues of an operational nature, specific to the Port.

Port Operating Procedures should not prevent or unreasonably restrict Svitzer's ability to meet customer and port requirements on Saturdays, Sundays or Public Holidays.

41.3 Port Operating Procedures must be signed by the Port Manager and authorised union representatives.

41.4 Changes to Port Operating Procedures may be made by agreement following consultation, or as follows:

(i) Where Svitzer is proposing the change it will notify the Union in writing of the proposed changes and where the Union is proposing the change It will likewise notify Svitzer in writing;

(ii) The parties will commence consultation at a local level about the matters set out above within seven days of such notification.

(iii) Consultation at local level will continue with a view to reaching consensus about the changes, and then at national level if the matter cannot be resolved locally.

(iv) In the event that the parties cannot achieve a consensus within a reasonable timeframe, the party proposing the change may give 28 days notice requiring that the change be Implemented.

(v) During the notice period, either party may make application in accordance with the Dispute Resolution Procedure and If such application is made, the status quo will remain until the matter is settled.

41.5 A copy of this Agreement and the Port Operating Procedures will be kept in a convenient location at the Port.

41.6 During the term of this Agreement, the Company and the Unions will meet to develop a Port Operating Procedures template.